Sentencing Law and Policy

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

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

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

"Tolling Justice"

The title of this post is the title of this new paper authored by Anjelica Hendricks available via SSRN.  Here is its abstract:

Police officers commit crimes. All too often, however, they are not prosecuted.  For decades, the conventional explanation has been that unprosecuted police crimes are the product of human choices: prosecutors who shield the police, unions that immunize their members from accountability, and police themselves for refusing to condemn their colleagues.  Though these explanations play a role in the phenomenon, they are incomplete.

This Article shows that there is another reason why police officers frequently escape criminal accountability: statutes of limitations.  Using a hand-built, original dataset of 838 likely police crimes, I find that statutes of limitations prevented prosecutors from bringing charges based on 642 of those crimes — a rate of 76.6%.  These crimes were not minor offenses: in many instances, officers tortured suspects, committed perjury, tampered with evidence, and sexually abused witnesses.  Shockingly, after committing these offenses, many unprosecuted officers remain in positions of power, as leaders of police agencies and even judges.

After presenting this evidence, the Article grapples with the question whether statutes of limitation should shield police in this way.  Although statutes of limitation are reasonably understood to protect certain fairness and legitimacy values associated with procedural justice, I argue that those very values should counsel against applying statutes of limitation to insulate police wrongdoing.

Furthermore, society has developed criminal law to address what we believe to be particularly egregious acts. When police commit crimes, there is expressive value in treating them as such.  Fortunately, although statutes of limitations currently work to shield the police, they are amendable.  They exist at the mercy of legislatures who have seen fit to amend statutes of limitations previously in the interests of justice.  The Article accordingly concludes by describing the political economy of reform.

New Prison Policy Initiative briefing explores impact of Dobbs on women under community supervision

I often say to students (and sometimes highlight here) that every big legal story has some kind of sentencing echoes.  This new Prison Policy Initiative briefing makes that point with respect to the Supreme Court's Dobbs ruling two years ago.  The full title and subtitle of this briefing summarizes its coverage: "Two years after the end of Roe v. Wade, most women on probation and parole have to ask permission to travel for abortion care.  Since the 2022 Dobbs decision, 21 states have restricted abortions earlier than the Roe v. Wade standard. Now, more of the 800,000 women on probation and parole must seek abortion care out-of-state — but for many, whether they can get there depends on an officer’s decision." 

Here is an excerpt from the briefing's discussion of its key findings:

To understand how this post-Dobbs landscape impacts women under the U.S.'s massive system of community supervision, we examined standard supervision conditions in each state, along with the number of women who must comply with them. We find that the one-two punch of abortion and supervision restrictions impacts an estimated 4 out of 5 womem (82%) on probation or parole nationwide.  That means that for the vast majority of people under community supervision, the ability to seek abortion care out-of-state is left not to the pregnant person, but to the discretion of a correctional authority, typically their probation or parole officer.

Specifically, we find that, excluding federal probation and post-release supervision, 82% of women on probation and 85% of women on parole live in states that (1) either completely ban abortion or restrict it based on gestational age and (2) list travel restrictions as a standard condition of supervision.

Notable Washington Post "Abused by the badge" investigation includes notable data on sentencing outcomes

The Washington Post today released a series of remarkable pieces as part of an investigative series it calls "Abused by the badge."  The subheadline of this main piece summarizes the main themes: "A Washington Post investigation found hundreds of law enforcement officers in the United States have sexually exploited kids. Many avoid prison time."  Here are additional links to the newest pieces in the series:

• "An officer sexually abused a teen in his police car. How will he be punished?"
• "How The Post investigated police officers accused of sexually abusing kids"
• "Read the responses from convicted police officers and their agencies"

This Reason piece about the Post's findings helpfully summarizes some of the key sentencing stories:

The investigation revealed a staggering lack of accountability for officers who sexually abuse minors — finding not only that convicted officers often received paltry sentences, but that police departments sometimes rehired officers with child sex abuse convictions.

The Post's analysis looked at thousands of court filings, as well as The Henry A. Wallace Police Crime Database, the county's most comprehensive database of police arrests.  The authors found that, between 2005 and 2022, around 17,700 police officers were charged with crimes — and 1 in 10 of those were charged with a crime involving the sexual abuse of minors.

The crimes officers were charged with varied, though most charges were for a few specific offenses. According to the Post's analysis, 39 percent of officers charged with child sexual abuse crimes were charged with rape.  Twenty percent were charged with crimes related to child sexual abuse material (another term for child pornography) and 19 percent were charged with forcible fondling.

Eighty-three percent of charged officers were convicted.  However, only 61 percent of convicted officers received prison time.  Fifteen percent received local jail sentences, and a striking 24 percent received sentences as light as probation, fines, and community service.  But even those imprisoned received relatively light sentences. Half were sentenced to less than five years in jail.

Why did so many officers seem to get off easy for heinous sex crimes?  According to the Post, it comes down to how prosecutors and judges treat police officers. "Prosecutors have broad discretion in the types of charges they bring, the plea bargains they offer and the cases they are willing to take to trial," the Post's analysis reads. "Judges play a critical role at sentencing hearings in determining what punishment officers deserve."

Because there is no national data about sentencing outcomes in cases involving other types of persons sexually abusing minors, it is impossible to compare the outcomes detailed by the Post for officers to other sets of offenders.  But the Post's suggestion that these officer offenders are being treated relatively leniently seems sound.  And many might reasonably argue that secual abuse of a minor committed my an officer ought to lead to even harsher punishment than would be given to other offenders, especially if the officer used his position to facilitate the crime.

Flagging challenge to Arizona's suspect application of Miller juve LWOP limis

Adam Liptak has this new piece at the New York Times detailing a pending Supreme Court challenge to how Arizona had dealt with Miller's Eighth Amendment limit on juve LWOP sentences. Here is the piece's full headline: "In Arizona, Life Sentences for Juveniles Test Supreme Court Precedents: The justices will soon decide whether to hear a case that could affect more than two dozen youths sentenced to die in prison." Here is an excerpt:

The new case involves Lonnie Bassett, who was convicted of two murders committed when he was 16. When he was sentenced in 2006, Arizona law did not give the judge the option of sentencing him to anything but life in prison without the possibility of parole.

In a unanimous opinion last year, the Arizona Supreme Court did not dispute that. But it said an idiosyncratic feature of the state law, allowing judges to choose between “natural life” without the possibility of release in any fashion and life without parole but with the theoretical possibility of clemency from the governor, rendered it constitutional.

Rejecting the usual understanding of the governing precedent, the court said, “Miller and its progeny do not specifically require the availability of parole when sentencing a juvenile offender.”

Lawyers for Mr. Bassett asked the U.S. Supreme Court to intervene, saying that his case could determine the fates of more than two dozen other juvenile offenders. The case, they wrote, “presents exceptionally significant questions about gamesmanship and the supremacy of federal law.”

"DPA Discounts"

The title of this post is the title of this new paper now available via SSRN authored by Todd Haugh and Mason McCartney. Here is its abstract:

There is a longstanding debate over the propriety of corporate deferred and nonprosecution agreements, those semi-private settlements entered into between prosecutors and companies under criminal investigation.  That debate is occurring in the shadow of the growing use of these DPAs and NPAs, a trend that recent DOJ policy changes suggest will only increase.  Regardless of where one stands on the debate, all agree that the fair, consistent, and transparent awarding and application of these agreements is paramount. 

Based on an empirical analysis of more than ten years of DPAs and NPAs used in Foreign Corrupt Practices Act cases, we find that the monetary penalties imposed on companies are consistently discounted below the low end of the fine range calculated pursuant to the Organizational Sentencing Guidelines, sometimes even below the monetary benefits companies received from their wrongdoing.  Further, the culpability score calculations made pursuant to the Guidelines, which are designed to calibrate a company's ultimate penalty with its level of wrongdoing, are not statistically significant in determining penalties.  Instead, it appears a hardened norm has developed at the DOJ of giving an almost uniform 25% discount off the low end of the fine range regardless of a company's culpability.  This norm is remarkably consistent despite wide variability in corporate behavior and the likely bargaining positions of prosecutors and corporate defendants.  These findings call into question the current oversight of DPAs and NPAs and, ultimately, their use in combatting corporate crime, thereby shedding new empirical light on what has become the primary means of holding our most high-profile corporate wrongdoers accountable.

"How Neuroscience Can Improve the Sentencing of Defendants with Autism Spectrum Disorder"

The title of this post is the title of this book chapter now available via SSRN authored by Colleen Berryessa and Carolina Caliman. Here is its abstract:

Defendants with Autism Spectrum Disorder (ASD) face a myriad of difficulties at every stage of the legal process-which not only can negatively affect their experiences in court but also the fairness, efficacy, and legitimacy of their outcomes at sentencing.  This chapter explores how advances in neuroscience can help positively impact the sentencing and aftercare of defendants with ASD in the United States, specifically focusing on the role of neuroscience in shaping more appropriate and prosocial legal decision-making during the sentencing proceedings of diagnosed defendants.

First, the chapter will discuss how neuroscience may aid legal decision-makers to better contextualize an ASD diagnosis and its neurodiversity during sentencing proceedings.  Then, it will explore how neuroscience can be used to cultivate better models of care and service innovations when developing and implementing sentencing accommodations for defendants with ASD.  Finally, the chapter will describe how neuroscience is being used to increase the education, awareness, and training of legal decision-makers, including judges, attorneys, and court personnel, on ASD and its forensic relevance to sentencing and other legal processes.

"Can State Supreme Courts Preserve — or Expand — Rights?"

The title of this post is the title of this very lengthy new New Yorker piece by Eyal Press.  The subtitle highlights its themes: "With a lopsided conservative majority on the U.S. Supreme Court, progressive activists are seeking legal opportunities in state constitutions."  Though covering lots of legal areas, the article discusses Eighth Amendment issues at various points.  Here is one excerpt of a piece worth reading in full:  

Between sessions at the N.Y.U. symposium [on state constitutional law], I went to a café to meet Kyle Barry, an advocate who hopes that a similar pattern might play out in the movement for criminal-justice reform.  Barry came to the conference from San Francisco, where he directs the State Law Research Initiative, a nonprofit organization whose mission is to limit extreme sentences and address inhumane prison conditions by strengthening state-constitutional rights.  Criminal-justice scholars have traditionally framed mass incarceration as a national phenomenon driven by such harsh federal legislation as the 1994 crime bill.  But, as the authors of a recent Iowa Law Review article note, “ninety percent of people confined in U.S. prisons are confined under state laws.”  Given this, the authors ask why state courts have been “missing from the debate” about how to curb excessive punishment regimes.

Barry’s organization hopes to address this gap.  He told me that state litigation was especially urgent because the Supreme Court has “completely abdicated” enforcing constitutional rights in the criminal-justice system, rubber-stamping extreme sentences that many other countries prohibit.  In most of Europe, he noted, the sentence of life without parole is unheard of.  In 2022, Canada’s Supreme Court ruled unanimously that such sentences were cruel and unconstitutional for offenders of any age.  In the U.S., as of 2020, sixty thousand people were serving what Barry calls “death in prison” sentences — more than in the rest of the world combined.  Although the Miller ruling forbade mandatory impositions of life without parole for juveniles, it didn’t ban them altogether.  And a more recent Supreme Court opinion, Jones v. Mississippi, written by Justice Brett Kavanaugh, relieved judges of having to establish that a juvenile is “permanently incorrigible” before issuing such a sentence.

In a scathing op-ed in the Washington Post, the legal scholar John Pfaff argued that the Jones ruling demonstrated that America was willing “to throw lives away.”  Yet Barry told me that he felt optimistic about the possibilities for state reform, naming Michigan, in addition to Washington, as a place where a high court had recently extended Miller to young adults.  Lauren McLane, the law professor fighting to reduce the sentence of Christopher Hicks, joined us at the café, dressed in a gray University of Wyoming sweatshirt. McLane and Barry had first communicated a few weeks earlier, after she’d read comments that he’d made on a Listserv about Commonwealth v. Mattis, a case in which the Supreme Judicial Court of Massachusetts banned life without parole for “emerging adults” — defined as anyone between eighteen and twenty-one.  The ruling, which was made in January, cited the ban on “cruel or unusual punishment” in the Massachusetts constitution, and also the principle that Eighth Amendment jurisprudence should be informed by “the evolving standards of decency that mark the progress of a maturing society” — a standard that the U.S. Supreme Court itself has endorsed.

"Regressive White-Collar Crime"

The title of this post is the title of this new article authored by Stephanie Holmes Didwania available via SSRN. Here is its abstract:

Fraud is one of the most prosecuted crimes in the United States, yet scholarly and journalistic discourse about fraud and other financial crimes tends to focus on the absence of so-called “white-collar” prosecutions against wealthy executives.  This Article complicates that familiar narrative. It contains the first nationwide account of how the United States actually prosecutes financial crime.  It shows — contrary to dominant academic and public discourse — that the government prosecutes an enormous number of people for financial crimes and that these prosecutions disproportionately involve the least advantaged U.S. residents accused of low-level offenses.  This empirical account directly contradicts the aspiration advanced by the FBI and Department of Justice that federal prosecution ought to be reserved for only the most egregious and sophisticated financial crimes.  This Articles argues, in other words, that the term “white-collar crime” is a misnomer.

To build this empirical foundation, the Article uses comprehensive data of the roughly two million federal criminal cases prosecuted over the last three decades matched to county-level population data from the U.S. Census.  It demonstrates the history, geography, and inequality that characterize federal financial crime cases, which include myriad crimes such as identity theft, mail and wire fraud, public benefits fraud, and tax fraud, to name just a few.  It shows that financial crime defendants are disproportionately low-income and Black, and that this overrepresentation is not only a nationwide pattern, but also a pattern in nearly every federal district in the United States.  What’s more, the financial crimes prosecuted against these overrepresented defendants are on average the least serious.  This Article ends by exploring how formal law and policy, structural incentives, and individual biases could easily create a prosecutorial regime for financial crime that reinforces inequality based on race, gender, and wealth.

Interesting 6-3 split in ruling for feds in reach of ACCA covering state drug convictions

Regular readers know the Armed Career Criminal Act (ACCA) is a messy statute that has divided the Supreme Court for decades regarding how to categorize various prior convictions as possible triggers for ACCA's 15-year mandatory minimums.  Another divided Supreme Court opinion was handed down in this arena today  in Brown v. US, No. 22–6389 (S. Ct. May 23, 2024) (available here). The opinion for the Court was authored by Justice Alito, and it starts this way:

These cases concern the application of the Armed Career Criminal Act (ACCA) to state drug convictions that occurred before recent technical amendments to the federal drug schedules.  ACCA imposes a 15-year mandatory minimum sentence on defendants who are convicted for the illegal possession of a firearm and have a criminal history that is thought to demonstrate a propensity for violence.  These defendants are subject to ACCA’s enhanced penalty if, among other things, they have “three previous convictions” for “a serious drug offense.” 18 U.S.C. §924(e)(1).  For a state crime to qualify as a “serious drug offense,” it must carry a maximum sentence of at least 10 years’ imprisonment, and it must “involv[e] . . . a controlled substance . . . as defined in section 102 of the Controlled Substances Act” (CSA). §§924(e)(1), (2)(A)(ii). The CSA, in turn, includes five schedules of controlled substances and provides that these schedules must be updated each year by the Attorney General. 84 Stat. 1245, 1247, 21 U. S. C. §§811, 812.

The two cases now before us present the question whether a state crime constitutes a “serious drug offense” if it involved a drug that was on the federal schedules when the defendant possessed or trafficked in it but was later removed.  We hold that such an offense qualifies. 

Intriguingly, five other Justices joined Justice Alito's opinion for the Court, but not the "usual suspects" when there are 6-3 divides on this Court. In this iteration, Justice Sotomayor joins the marjoirty in this ruling for the government, whereas Justice Jackson wrote a dissenting opinion, in which Justice Kagan and Gorsuch joined (though the latter joined only as to Parts I, II, and III of the dissent). Here is how the dissent gets started:

The Court maintains that, “[s]tanding alone,” the text of 18 U. S. C. §924(e)(2)(A)(ii) “does not definitively answer” the question presented in these cases. Ante, at 7. Instead, says the majority, we must look beyond the text to precedent, statutory context, and purpose — which apparently converge to persuade the majority that §924(e)(2)(A)(ii) requires sentencing courts to apply the drug schedules in effect at the time of a defendant’s prior state drug conviction when determining the applicability of the 15-year mandatory minimum in the Armed Career Criminal Act (ACCA). But the relevant text does definitively answer the question presented here. And it establishes that courts should apply the drug schedules in effect at the time of the federal firearms offense that triggers ACCA’s potential application. Nothing else — not precedent, context, or purpose — requires a different result. Therefore, I respectfully dissent.

I am hopeful, but not especially optimistic, that a faculty meeting and other commitments will not prevent me from fiding time in short order to review these opinions closely.

Any predictions for this week's scheduled sentencing of former Baltimore prosecutor Marilyn Mosby?

What might be called the rise and fall of former Baltimore City State's Attorney Marilyn Mosby has way too many chapters and elements to cover adequately in this space.  But, tomorrow morning, her story formally becomes a sentencing story as U.S. District Judge Lydia Griggsby holds a hearing to sentence Mosby on multiple charges.  (Quirky side note: I went to high school with Judge Griggby, but I have not spoken with her in decades.)  This local news piece provides just a small window into some of the tales of Mosby:

Former Baltimore City State's Attorney Marilyn Mosby is just days away from her sentencing, months after juries in two separate trials convicted her on counts of perjury and mortgage fraud. Mosby has claimed these charges were politically and racially motivated. She even mounted a national campaign in the last few weeks for a presidential pardon.

In November and February, juries found Mosby guilty for lying in regard to a vacation home mortgage and for withdrawing from her retirement account early under the pretense of covid-related hardship.

In a court filing Monday, Mosby's attorneys continued to call for an alternative to prison time, like probation, citing the negative impact on her kids as a reason.

But, Mosby has also been stumping hard for a pardon from Pres. Joe Biden -- appearing on MSNBC and the nationally syndicated radio show The Breakfast Club. "I have been accused of doing something I have not done. I'm innocent. I'm facing 40 years for withdrawing funds from my retirement savings," Mosby said on The Breakfast Club. "The United States government, a global superpower, is coming for me."

Prosecutors have called for 20 months of prison time. In court filings, prosecutors have criticized Mosby's press tour. "She has displayed no remorse; she accepts no responsibility; she has no regrets for her actions; and she has consistently worked to undermine public faith in the justice system for her own benefit," prosecutors said in the filing.

In response to prosecutors, Mosby's attorneys said in court filings that, "Ms. Mosby has every right to maintain her innocence indefinitely."

More than a dozen civil rights organizations have pledged support for Mosby's pardon, as well as a number of high-profile names. One of the most recent names to support Mosby is Bernice King, the daughter of Martin Luther King Jr....

Prosecutors have also filed to seize her condo in Longboat Key, Florida. Mosby's attorneys said in court filings the government hasn't proved it's entitled to do that.

I have seen a lot of press pieces providing very different accounts of Mosby and her activities, and it will be interesting to see how Judge Griggsby sorts through persistent disagreements about the facts at sentencing. Long-time readers know I often see the mid-point of the parties' sentencing recommendation to serve as a reasonable over/under for any sentencing prediction.  So perhaps 10 months is a reasonable guess for how Judge Griggsby will weigh the 3553(a) factors here, though I have not followed the prior proceedings in this matter closely enough to make a truly informed prediction.

I assume Mosby is planning to appeal her convictions.  If Judge Griggsby imposes a relatively prison term, I am sure Mosby would seek bail pending appeal (which likely will be granted).  Consequently, even if a prison term were imposed, it could be a while until Mosby woud be required to report to prison (and, of course, calls for clemency would surely grow in that period). 

"Padilla's Broken Promise: Pennsylvania Case Study"

The title of this post is the title of this new article authored by Mikaela Wolf-Sorokin, Liz Bradley and Whitney Viets (which caught my eye, in part, because I am in the Keystone state today for this event). Here is its abstract:

In 2010, the Supreme Court held in Padilla v. Kentucky that criminal defense attorneys have a constitutional obligation to advise noncitizen clients of the immigration consequences of a guilty plea in criminal court proceedings.  Though it has been over a decade since the decision, little research has been done regarding Padilla’s implementation by defense counsel on a statewide level.  This Article provides findings from a case study on Padilla advising in Pennsylvania. Pennsylvania is unique because its state courts have interpreted Padilla narrowly and permit immigration advisals that would be deemed constitutionally deficient in other jurisdictions.  Pennsylvania also does not have a state-funded public defense system, which means standards for indigent representation vary by county.

Interviews with public defenders and prosecutors in Pennsylvania reveal significant variation in the scope of advice provided to noncitizens in criminal court proceedings and the willingness of district attorney offices to consider immigration status during plea negotiations.  Each Pennsylvania county has an individual method of identifying noncitizen clients, analyzing immigration consequences, warning clients of these adverse consequences, and negotiating with district attorneys.  The scope of advice provided to noncitizens and counsel’s understanding of their Padilla obligations vary considerably in both content and scope.  Counties suffer from Pennsylvania’s systemic failure to provide adequate funding to public defense offices to ensure that they can effectively comply with Padilla — a problem that is especially salient in a state with limited postconviction remedies for those who receive deficient advice. Based on these findings, this Article offers various policy recommendations that would improve the criminal defense representation of noncitizens in Pennsylvania.  While these findings and recommendations are specific to Pennsylvania, they are relevant to nationwide research on Padilla’s impact and what can be done to promote immigration-conscious criminal defense advocacy.

Event at Villanova this week follows up Federal Sentening Reporter issue on "Drug Testing and Community Supervision"

I am pleased here to be able to highlight both the latest issue of the Federal Sentencing Reporter and this event slated for this Wednestday (5/22) at Villanova Law serving as a follow up to this FSR issue.  This FSR issue is titled "Drug Testing and Community Supervision: Interrogating Policy, Practice, and Purpose," and it includes nearly a dozen original articles looking drug testing of persons while on community supervision from a variety of perspectives.  Here are the Editors' Notes previewing the contents of the FSR issue:

The supervision of individuals serving probation and parole never receives quite the same attention as incarceration topics, but millions of persons in our communities deal with these realities every day.  In particular, drug testing for persons on community supervision affects many of the nearly four million people on probation and parole in the United States, even though the justification for its use and its burdens are not always clear and rarely subject to significant scrutiny.  This issue of FSR, which results from the collaborative efforts of Arnold Ventures, the Center for Justice Innovation, the Drug Enforcement and Policy Center at The Ohio State University, and the Villanova University Charles Widger School of Law’s Girard-diCarlo Center for Ethics, Integrity and Compliance, takes a closer look at what an evidence-driven and humane approach to drug testing under supervision might look like.  The FSR editors are grateful for the collaborative efforts that helped produce this issue, and we extend special thanks to Matt Watkins and Oliva Kramer of the Center for Justice Innovation for their efforts assembling and editing the articles that comprise this issue.

And here is the registration page for the Vilanova Law event, which provides these (and other) particulars:

"Testing Justice: Drug Testing and Community Supervision"

Presented by the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance Wednesday, May 22, 4:00–6:00 p.m.

In an effort to address and shape public conversations about criminal justice, drug policy and enforcement, the Girard-diCarlo Center will host a discussion on Wednesday, May 22 at Villanova Law. “Testing Justice: Drug Testing and Community Supervision” is a continuation of the conversations held at the convening in November 2023, the recent issue of the Federal Sentencing Reporter and the ethics, policies and laws surrounding drug enforcement in Pennsylvania.

The Pennsylvania Continuing Legal Education Board has approved this symposium for 1.5 Substantive CLE credits. Please note registration is required to receive CLE credit.  A reception will follow the event in the Ambassador David F. Girard-diCarlo ’73 and Constance B. Girard-diCarlo ’74 Student Lounge.

4:30–6:00pm Panel: The Pennsylvania Experience

• Sen. Camera Bartolotta, Pennsylvania State Senate for the 46^th District
• Jordan Hyatt, Director of the Center for Public Policy & Associate Professor of Criminology and Justice Studies, Drexel University
• LaTonya Myers, Founder, Above All Odds
• N. Jeannette Palmer-Briscoe, Chief Probation/Parole Officer, Philadelphia Adult Probation & Parole Department
• Sen. Anthony Williams, Pennsylvania State Senate for the 8^th District
• Moderated by Steven Chanenson, Faculty Director of the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance & Professor of Law, Villanova Law

"A Critical Assessment of the First Step Act’s Recidivism-Reduction Measures"

The title of this post is the title of this new article authored by Raquel Wilson that was recently published.  Here is its abstract:

The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.

The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually.  The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons (“BOP”) by allowing participants to earn additional time credits that reduce their sentence.  Yet Congress excluded from its incentive program many violent offenders as well as others convicted of non-violent offenses relating to immigration and drug trafficking.  This Article argues that this exclusion was a critical mistake for several reasons: (1) Programming such as cognitive behavioral therapy has been shown to be most effective for offenders who pose the highest risk of recidivism, including violent offenders; (2) Given limited resources in the BOP, incentivizing participation among only non-violent offenders will likely result in less programming for violent offenders; (3) The BOP already exhibits significant shortcomings in its ability to properly calculate release dates, and forcing the BOP to calculate time credits based on a complex list of excluded offenses will only create additional administrative burdens that may result in more inaccuracy in release dates; and (4) In creating a politically-driven list of excluded offenders, Congress missed an opportunity to focus on data-driven reforms to reduce crime and risks to public safety.

A better approach would be a simpler, more straightforward one that would be easier for the BOP to administer and that would incentivize participation of all people in prison who will be released into local communities.  Congress has expert bodies with which it can consult, including the social science arm of the Department of Justice and the United States Sentencing Commission.  Allowing expert bodies to make decisions and recommendations can insulate both Congress and the President from the political backlash that sometimes hampers meaningful criminal justice reform. Finally, federal judges can be trusted with release decisions.  Judges demonstrated strong adherence to Sentencing Commission guidance when ruling on compassionate release motions once Congress allowed people in prison to file for early release under that statutory provision.  Congress should consider creating a second-look provision that would allow federal judges to apply Commission guidance to early release petitions, taking into account successful completion of recidivism-reducing programs.

"Does quadriplegic inmate deserve compassionate release after 49 years?"

The question in the title of this post is the headline of this editorial from a Pennsylvania paper.  The editorial seems to answer the question in the affirmative, and here are excerpts:

Ezra Bozeman was convicted of second-degree murder in 1975. The jury came to that decision 10 months after the crime occurred, when Morris Weitz was shot and killed during a robbery at a dry cleaner’s shop in Pittsburgh’s Highland Park neighborhood.

Bozeman was sentenced to life in prison. He has maintained for 49 years that he is innocent. He has appealed to the state Supreme Court. He has filed eight Post Conviction Relief Act petitions. None of that matters. Not really. Not anymore.

Those in his corner say he has been a model prisoner, counseling and mentoring others. That doesn’t matter either.

Bozeman’s doctor says the inmate is dying. Since February, he has been a quadriplegic. After 49 years locked in a cell, he is now locked in his own body.

But that doesn’t matter to the Allegheny County District Attorney’s Office either. In a hearing Tuesday, Deputy District Attorney Ronald M. Wabby Jr. argued against compassionate release for Bozeman. The reason? Wabby said there’s “no evidence to support their petition.”

Allegheny County Common Pleas President Judge Susan Evashavik DiLucente will be scheduling another hearing to take testimony from Bozeman’s physician.  Perhaps that will suffice. Gov. Josh Shapiro, the former Pennsylvania attorney general, supports the release.  The judge says she is inclined to agree.

Bozeman, 68, would not be released to go on a crime spree.  Quadriplegics cannot move any of their four limbs. He can move nothing below his neck. He requires a colostomy bag.  His attorney spoke of a pressure sore that reaches bone because the medical staff at SCI-Laurel Highlands cannot provide the kind of care someone in this condition requires.  A National Institutes of Health study claims the cost of acute care for a quadriplegic can top $500,000. It can require constant care a prison is not prepared to provide. There are bottom-line financial reasons to release a man who has been in prison since the Ford administration.

I find it interesting, though not uncommon, to see discussion of a compassionate release request framed in terms of what the inmate might "deserve."  But if rretributive desert is really what's most important in these casess, then the specifics of the crime, claims of innocence and post-crime behavior would all matter.  Yet this editorial, with its focus this inmate's apparent inability to commit future crime and the high costs of his care, is really building a case for release based on utilitarian concerns rather than retributivist ones.  Still, I understand why asking whether it would be sensible for society/Pennsylvania to grant compassionate release does not have quite the same ring as asking if an inmate "deserves" release.

Meanwhile, this lengthy news article about the case highlights that some medical testimony is in dispute, and it provides some useful data and context concerning Pennsylvania's recent compassionate release history:

Since 2016, the most recent for which data was available, through the end of 2023, 74 petitions for compassionate release were filed by Department of Corrections inmates.  Of those, 44 were granted, 10 were denied, and seven were otherwise withdrawn. In the same time, 13 people died waiting for decisions.

That’s not uncommon, according to Nishi Kumar, an attorney and head of medical-legal projects at the Medical Justice Alliance, an organization of physicians that work with incarcerated people. Many states have strict definitions of who can be released under compassionate release statutes, and some people are deemed “not sick enough.”...

So far in 2024, nine petitions have been filed in Pennsylvania, and five have been granted. One person died during the court process. Two are pending, including Bozeman’s. The number of compassionate release petitions filed each year has increased: from three or four each year to 13 in 2022 and 18 in 2023. Some of that could be because of continued pushes for criminal justice reform and increased attention on cases similar to Bozeman’s.

Spotlight PA, a nonprofit Pennsylvania news outlet, profiled Raymond Caliman in early 2022. At 68, an infection had left him bedridden and deteriorating but not at imminent risk of dying. After Spotlight’s piece published, the Abolitionist Law Center took up Caliman’s case, and he was ultimately released to hospice care in Philadelphia. He died less than two months later.

Pennsylvania has just under 40,000 persons in its prisons; even with the recent uptick in compassionate release petitions, it seems far less than 0.05% are seeking this release each year in the Keystone State.

Texas Gov fulfils pledge to pardon man convicted of murdering BLM marcher and sentenced to 25 years

The Govenor of Texas issued a notable (and previously promised) clemency, as detailed in this local article.  Here are excerpts:

Daniel Perry, a former Army sergeant convicted of killing a Black Lives Matter protester in downtown Austin in 2020, was freed from prison Thursday within an hour of Gov. Greg Abbott signing a pardon proclamation in a case that triggered a political and legal firestorm.

In a series of rapid-fire developments in a less than two-hour span, the Texas Board of Pardons and Paroles recommended that Perry be pardoned on the murder conviction.  Abbott then granted the full pardon to Perry, leading to his release from the Mac Stringfellow Unit in Rosharon, about 20 miles south of downtown Houston. Perry, 36 at the time of his April 2023 conviction, may also be able to apply to have his record expunged, according to the Texas Department of Criminal Justice.

The board announced its recommendation to pardon Perry and restore his firearm rights in a statement posted on its website Thursday.  Its decision came after a "meticulous review of pertinent documents, from police reports to court records, witness statements, and interviews with individuals linked to the case," the statement said.

In July 2020, Perry shot and killed Garrett Foster after Perry drove into a racial justice protest on Congress Avenue. Perry claimed that he shot Foster, who was carrying an AK-47 rifle, in self-defense. During Perry’s trial last year, prosecutors argued that Perry had sought out confrontation.

"Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney," Abbott said in a statement Thursday.  "I thank the Board for its thorough investigation, and I approve their pardon recommendation.” In a proclamation Thursday, Abbott took aim at Travis County District Attorney José Garza, writing that Garza "demonstrated unethical and biased misuse of his office in prosecuting Daniel Scott Perry."

Less than 24 hours after a jury in April 2023 found Perry guilty of murder, Abbott said on social media that he would approve a pardon if one were recommended by the Texas Board of Pardons and Paroles. The announcement came after prominent conservative figures called on him to undo Perry's conviction. Shortly after Abbott’s announcement, a state district judge unsealed court records that contained Perry’s previously unreleased messages and social media posts, which contained racist rhetoric.

"Daniel Perry was imprisoned for 372 days and lost the military career that he loved," Doug O'Connell, an attorney who represents Perry, said in a statement. "The action by Governor Abbott and the Pardon Board corrects the courtroom travesty which occurred over a year ago and represents justice in this case. "I spoke to Daniel Perry this afternoon. He is thrilled and elated to be free. Daniel is also optimistic for his future."

Garza condemned the actions of the parole board and Abbott, writing in a statement that they have "put their politics over justice and made a mockery of our legal system."

Gov Abbott's proclamation is available at this link and his statement is at this link; the pardon board's statement is available at this link.

Prior related posts:

• Texas Gov pledges to swiftly pardon man convicted of murder of BLM marcher day after jury conviction
• Man convicted of murdering BLM marcher, whom Texas Gov has pledged to pardon, sentenced by judge to 25 years in prison 

Notable (below-guideline) sentence for key anti-abortion activist after trial conviction

As reported in this Washington Post article, a "30-year-old antiabortion activist who kept fetuses in a Capitol Hill home was sentenced Tuesday to nearly five years in prison for illegally blockading and breaking into a reproductive health clinic in D.C." Here is more about a number of sentencings in this case:

Lauren Handy, of Alexandria, Va., received a 57-month term and became the first person to be sentenced for the combination of conspiring to violate reproductive health rights under a federal civil rights law and violating the Freedom of Access to Clinic Entrances Act, a 1994 law that prohibits threats to and obstruction of a person seeking reproductive health services or providers....

Handy, convicted by a jury last year, was charged along with nine others after the group launched an antiabortion blockade at the Washington Surgi-Clinic in 2020.  Handy’s was the first of four clinic-access cases pending trial or sentencing around the country in which the Justice Department under the Biden administration has charged defendants with obstructing clinic access in combination with a conspiracy against rights — a civil rights law passed after the Civil War that makes it punishable by up to 10 years in prison to “conspire to injure, oppress, threaten, or intimidate any person” exercising a constitutional or legal right. Violations of the 1994 clinic access law alone are punishable by up to a one-year prison term.

Handy gained additional notoriety when, on the same day a federal indictment was announced against the defendants, D.C. police discovered five fetuses in a Capitol Hill rowhouse basement where she had been staying. The criminal trial, however, had nothing to do with the fetuses that antiabortion activists say they collected from outside the same D.C. abortion clinic, and authorities have not charged anyone in that matter.

Handy and co-conspirators live-streamed a preplanned “lock-and-block” blockade that used force and physical obstructions to shut down the D.C. clinic on Oct. 22, 2020, Kollar-Kotelly said in summarizing trial evidence. Prosecutors said Handy was the leader of the group that orchestrated the blockade and recruited participants, arranged lodging and used a fake name to book an appointment. A nurse was injured and patients were traumatized in the incursion, including two women who begged to enter for treatment and one who suffered a medical emergency, the judge said.

“It was not peaceful, and it was not contemplated to be peaceful,” Assistant U.S. Attorney Sanjay Patel argued in a 90-minute sentencing hearing. The government sought a sentence at the high end of a 63- to 78-month range recommended by federal guidelines — up to 6½ years — based on Handy’s leadership role, obstructive conduct, the violence and victims in the case.

Prosecutors called her “an active antiabortion extremist” who has organized clinic blockades around the country, resulting in four convictions for which she was sentenced up to 45 days in jail, with all terms suspended or pending appeal. Patel also cited the need for deterrence, saying that without a stiffer punishment “the purpose of sentencing may be lost on this defendant.”

Also sentenced Tuesday with Handy were John Hinshaw, 69, of Levittown, N.Y., who received 21 months of incarceration; and William Goodman, 54, of the Bronx, who was sentenced to 27 months....

Defense attorney Martin A. Cannon cited more than nine letters of support for Handy and likened her actions to those of civil rights leaders such as Martin Luther King Jr. and Rosa Parks, saying she “did not act out of self-interest, but … at her own peril,” in good faith and out of conscience.  Cannon said Handy was a peaceful, kindhearted person with a history of philanthropic work in Haiti and on behalf of homeless people who was “trying to save babies from being killed.”  He continued, “Lauren did nothing on her own that was violent or forceful.  She did not, I submit, anticipate any of the force that resulted.”

Kollar-Kotelly said that to the contrary, the evidence showed that Handy and her co-plotters planned to push their way into the clinic, and fretted beforehand over possible use of violence.  She said the case was “not a referendum on abortion, but violation of civil rights” of patients and medical practitioners.

The judge concluded that while Handy and her co-conspirators were entitled to have “very strong views about abortion,” she found it disheartening that they “showed no compassion or empathy to women patients who were human beings in pain and seeking medical care.”

Handy and seven co-defendants, including Idoni and Geraghty, were found guilty on all counts in two federal jury trials in August and September.  Another was convicted at a bench trial before a judge in November, and one pleaded guilty. The man who pleaded guilty, Jay Smith, 32, of Freeport, N.Y., received 10 months last year after pushing a nurse who fell and suffered an ankle injury in the blockade.  The remaining six will be sentenced later this month.

Kollar-Kotelly noted that other civil rights conspiracy cases involving the Freedom of Access to Clinic Entrances Act are pending in Tennessee, Michigan and Florida. Because no one else has been sentenced under the laws in combination, she said she relied on federal sentencing guidelines for the alleged and convicted conduct.

I have not followed these cases closely, so I may not have the facts right, but this certainly seems to be another situation involving a trial penalty.  Handy, who seemngly did not directly commit any violence, gets almost 5 years in prison after exercising her tiral rights; Smith, who injured a nurse, is sentenced to only 10 months after pleading guilty.  Handy does seem to have some aggravating history and a leadership role, so the differential here may be the result of various other factors.  But still, based on the facts reported here, I am not sure other facts really full account for Handy getting a sentence nearly six times longer.

"Crimes of Violence and Violent Crime"

The title of this post is the title of this new paper authored by Erin Blondel available via SSRN.  Here is its abstract:

Why can’t federal law define crimes of violence? Major federal statutes turn on whether someone was convicted of a violent crime.  But judges and scholars widely agree that the law defining violence is “chaos.”  This Article treats the problem as one of statutory design and construction.  What’s a violent crime is a context-specific judgment call — the kind the law usually adjudicates factually, through criminal prosecutions.  In other words, it’s a standard.  But the Supreme Court has increasingly treated violence as a rule, stripping factual information and interpretive flexibility that might help federal judges judge crimes.

Predicate statutes like the violence definitions are hardly unusual, however, and most have operated smoothly, without mass confusion.  They differ from federal violence law by using simpler, rule-friendly criteria.  They typically list qualifying crimes, and courts interpret criteria more flexibly, leaving some room for facts and interpretation.  That experience shows that federal law is fixable.  Congress should return to listing violent crimes, as it did before the 1980s.  And the Supreme Court should scrap its rigid interpretive rules and give federal judges more flexibility to judge violence sensibly.

The federal experience defining violence offers a case study in the classic rules-versus-standards debate and the problem with treating standards as rules.  And it contradicts a favored proposal among leading criminal law scholars and some jurists to make crime definitions more precise — more rule-like — to constrain prosecutorial discretion. Crimes are standards, and discretion is necessary to interpret them across thousands of unpredictable fact patterns. Prosecutorial discretion, in other words, is not just enforcement discretion but interpretive discretion.  Criminal procedure constrains that discretion by distributing it across many interpreters — law enforcement, prosecutors, defense attorneys, defendants, judges, and juries — within a broader network of laws, procedures, policies, and norms.  Longstanding debates in rules versus standards largely ignores this sort of “distributed distraction,” but it helps make discretionary judgments like violence — and crime — make sense.

Might Justice Alito be a frequent vote for certain criminal defendants on the Supreme Court this term?

The question in the title of this post is prompted by this notable new NBC News article headlined "Trump, gun owners and Jan. 6 rioters: Tough-on-crime Justice Alito displays empathy for some criminal defendants."   In a post here last year about articles discussing Justice Alito's jurisprudence, I flagged this 2017 empirical article noting Justice Alito had not once voted in favor a Fourth Amendment litigant in a divided case and explained I could not think of any criminal justice arena in which Justice Alito could be expected to vote for a criminal defendant.  But, as the NBC News article highlights, it seems that the current SCOTUS Term has brought criminal defendants to the Court that seem to be more to Justice Alito's liking.  Here are excerpts from a piece that should be read in full:

Conservative Justice Samuel Alito, a former U.S. attorney with a long history of voting in favor of prosecutors, has shown signs of empathy for defendants in recent cases involving gun owners, Jan 6. rioters and former President Donald Trump.

Alito, appointed in 2006 by Republican President George W. Bush, has a reputation for being the justice on the court most hostile to criminal defendants. Earlier in his career, he was a U.S. attorney in New Jersey and held several other positions in the Justice Department.

He sides with defendants less frequently than any of his eight colleagues, according to numbers crunched by Lee Epstein, a political scientist at the University of Southern California Gould School of Law.

But in several recent oral arguments in some of the most contentious cases currently before the court, Alito has notably raised questions about the Justice Department’s decisions to prosecute certain cases, expressed sympathy for Trump’s argument that former presidents should be immune from prosecution, and aired concerns about gun owners being charged. Rulings in all the cases are due by the end of June....

Alito was among several justices who questioned the Justice Department’s use of an obstruction statute to prosecute people involved in the Jan. 6, 2021, attack on the Capitol. He suggested that if the court allows it to apply to Jan. 6 defendants, prosecutors could also seek to use it against people involved in peaceful demonstrations, such as those that take place in the courtroom from time to time.

In another case on a federal ban on gun accessories called “bump stocks” that allow a semiautomatic rifle to file more quickly, Alito said it would be “disturbing” for people to be prosecuted for owning them when lower courts have questioned the ban’s lawfulness, even if the Supreme Court ultimately upholds it.

Alito also appeared concerned in a separate gun case about the due process rights of gun owners who face having to give up their firearms, and risk prosecution if they don’t, when accused of domestic violence.... At one point, he even cited a friend-of-the-court brief filed by lawyers in California who represent criminal defendants.

The fascinating (and unurprising) graph of voting patterns in criminal cases reprinted here comes the NBC News piece and is based on Epstein's data. Though quite interesting and justifying a focus Justice Alito's apparent affinity for certain criminal defendants this term, I also expect we will see a number of the Justices who are generally much more likley to vote for criminal defendants to be much more pro-prosecution in particular cases this term.  Put simply, certain types of cases and defendants change the political valence of certain criminal justice issues, and we really should not be all that surprised when they also change the views and votes of at least some judges and Justices.

New US Sentencing Commission data on retroactive application of criminal history amendments

Last year, US Sentencing Commission voted for (delayed) retroactive application of its Guideline amendments relating to criminal history.  There were two major parts to these amendment that reduced the sentencing range for certain defendants with "status" points (Part A) and for other defendants who would now be deemed "zero-point" offenders (Part B).   And last week, the Commission release some new data on how retroactivity is playing out in district courts.  Here are links to the USSC's data reports:

NEW Retroactivity Data on Part A

NEW Retroactivity Data on Part B

There are lots of interesting little stories in these data runs, but I figured I might  here highlight the top-line numbers. Specifically, for the Part A "status point" amendment, a total of 2,988 defendants have received sentence reductions averaging 10 months.  For the Part B "zero point" amendment, a total of 2,143 defendants have receive sentence reductions averaging 13 months.

Adding this up, we get at total of 57,738 months of reduced federal prison time (which is a little over 4800 years of imprisonment for those not great at dividing by 12).  Given that the average annual cost of federal incarceration is over $42,000, we might reasonably calculate a savings of over $200 million to US taxpayers resulting from the Commission's decision to make its new criminal history guidelines retoractive.

I presume future retroactivity data runs will report in some more defendants getting reductions under the new guidelines, and I also expect other data will also show a significant number of newly sentenced defendants also benefiting from these new criminal history guidelines.  And especially since there were built on the USSC's copious revidivism data, I am hopeful that there reduction do not come at any real public safety costs. 

Split Ninth Circuit panel declares federal felon-in-possession criminal law unconstitutional as applied to non-violent offenders after Bruen

Yesterday, a split Ninth Circuit panel handed down a major Second Amendment ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2024) (available here), to become the second circuit to find that the Supreme Court's Bruen ruling renders unconstitutional federal law's criminal prohibition in on gun possession by nonviolent felons.   The 60-page opinion for the court was authored by Judge Bea, and here is part of how it starts:

18 U.S.C. § 922(g)(1) makes it a crime for any person to possess a firearm if he has been convicted of an offense “punishable by imprisonment for a term exceeding one year.”  Steven Duarte, who has five prior non-violent state criminal convictions — all punishable for more than a year — was charged and convicted under § 922(g)(1) after police saw him toss a handgun out of the window of a moving car.  Duarte now challenges the constitutionality of his conviction.  He argues that, under the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society.  We agree.

We reject the Government’s position that our pre-Bruen decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), forecloses Duarte’s Second Amendment challenge.  Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform.  Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history....

At step one of Bruen, we easily conclude that Duarte’s weapon, a handgun, is an “arm” within the meaning of the Second Amendment’s text and that Duarte’s “proposed course of conduct — carrying [a] handgun[] publicly for selfdefense”— falls within the Second Amendment’s plain language, two points the Government never disputes. Bruen, 597 U.S. at 32.  The Government argues only that “the people” in the Second Amendment excludes felons like Duarte because they are not members of the “virtuous” citizenry.  We do not share that view.  Bruen and Heller foreclose that argument because both recognized the “strong presumption” that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to “all Americans,” not an “unspecified subset.” Bruen, 597 U.S. at 70 (quoting District of Columbia v. Heller, 554 U.S. 570, 581 (2008)). Our own analysis of the Second Amendment’s publicly understood meaning also confirms that the right to keep and bear arms was every citizen’s fundamental right....

At Bruen’s second step, we conclude that the Government has failed to prove that § 922(g)(1)’s categorical prohibition, as applied to Duarte, “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. Bruen, 597 U.S. at 19. The Government put forward no “well-established and representative historical analogue” that “impose[d] a comparable burden on the right of armed self-defense” that was “comparably justified” as compared to § 922(g)(1)’s sweeping, no-exception, lifelong ban. Id. at 29, 30. We therefore vacate Duarte’s conviction and reverse the district court’s judgment entering the same. 

The 10-page dissent authored by Judge Milan Smith concludes this way:

The majority reads Bruen, a Supreme Court decision reviewing New York’s gun licensing regime, as an invitation to uproot a longstanding prohibition on the possession of firearms by felons. Bruen extends no such invitation.  As Justice Alito cautioned, Bruen decides “nothing about who may lawfully possess a firearm.” Bruen, 597 U.S. at 72 (emphasis added).

One day — likely sooner, rather than later — the Supreme Court will address the constitutionality of § 922(g)(1) or otherwise provide clearer guidance on whether felons are protected by the Second Amendment. But it is not our role as circuit judges to anticipate how the Supreme Court will decide future cases.... Until we receive contrary definitive guidance from the Supreme Court, or from a panel of our court sitting en banc, we are bound by our decision in Vongxay.

I respectfully dissent and express the hope that our court will rehear this case en banc to correct the majority’s misapplication of Bruen.

The location and timing of this ruling is almost as interesting as its substance.  Many hundreds of § 922(g)(1) cases are prosecuted in this big circuit each year, so the echo effects of this ruling could prove profound (though I would guess not that many involve persons with only nonviolent priors).  And, we are likely only weeks away from the Supreme Court finally handing down an opinion in the Rahimi case to address the application of Bruen to a different section of § 922(g). 

Most folks reasonably expect the Rahimi ruling to provide more guidance on how the Bruen Second Amdndment test is to be applied to broad federal criminal gun control laws.  I would expect coming Rahimi opinion will lead to the Ninth Circuit reviewing this important Duarte ruling in some way, though whether that is in the form of en banc review or panel reconsideration might turn on what Rahimi actually says.

New report from Campaign for the Fair Sentencing of Youth details the state of juvenile LWOP sentences in the US

Via email, I learned of this new report from the Campaign for the Fair Sentencing of Youth titled "Unusual & Unequal: The Unfinished Business of Ending Life Without Parole for Children in the United States."  Because this group advocates for the abolition of juvenille LWOP sentences, this report primarily laments that there are still a few hundred persons convicted as juveniles serving this sentence, though it notes the fact that "over the past decade, ... the population of [juvenile offenders] serving [an LWOP] sentence decreas[ed] by 85%."  

The report include a lot of data about juve LWOP laws and the (re)sentencing of many offenders in the wake of the Supreme Court's major Eighth Amendment rulings in Miller and Montgomery.  I recommend the short report to anyone eager to understand the current state of juvenile LWOP sentencing.  The report concludes with the kind of advocacy that has been a hallmark of the Campaign for the Fair Sentencing of Youth:

A concentration of a few states have unevenly complied with Miller and the possibility of resentencing provided by Montgomery.  Some have refused to comply at all.

This uneven implementation of the Miller decision has a particularly profound impact on racial disparities among those serving JLWOP.  An analysis of those deemed worth protecting from JLWOP and those deemed fit for the sentence suggests that as long as JLWOP remains a sentencing option, it will be imposed in ways that produce arbitrary and racially discriminatory outcomes.  It will also be leveraged to legitimize the extreme sentences of children in other forms, that still fail to consider their unique capacity for positive change.

Miller and the ensuing procedures guiding JLWOP imposition have not been sufficient guardrails to combat these risks. States must go further to address these inequalities and recognize what science and common sense have clearly demonstrated: that children are categorically different from adults, less culpable, and should be provided opportunities to demonstrate their tremendous potential for positive growth and change.

A much different federal sentence for a different crypto criminal

The trial and sentencing of Sam Bankman-Fried to 25 years in federal prison for his crypto criminality garnered a whole lot of attention earlier this years.  The plea and sentencing of another crypto criminal got a whole lot less attention, perhaps in part because his crimes and sentence were different in kind.  This press article, headlined "Binance founder Changpeng ‘CZ’ Zhao sentenced to 4 months, will enter prison as country’s richest inmate," provides some of the interestingly different details (with links from the original):

Changpeng “CZ” Zhao once sat atop the crypto industry as the founder and CEO of Binance, the world’s leading crypto exchange.  On Tuesday, a judge in Seattle federal court sentenced Zhao to four months in prison as part of a plea deal — but the multibillionaire will still retain most of his wealth.

After two years marked by the stunning collapse of crypto companies including Sam Bankman-Fried’s FTX, the Justice Department brought criminal charges against Binance and its CEO in November, though the exchange remained operational.  Unlike the DOJ’s case against Bankman-Fried, or other alleged crypto criminals such as Terraform Labs’ Do Kwon, Zhao and Binance reached a settlement with prosecutors, along with a slew federal agencies including the Treasury Department and Commodity Futures Trading Commission.

Zhao’s sentencing marks the conclusion of the process, with Judge Richard Jones ruling that the crypto entrepreneur — estimated to be worth around $43 billion, making him the richest inmate to serve time in the U.S. — must pay a $50 million personal fine in addition to his time behind bars.  In court, Zhao expressed contrition for his “mistakes” as CEO, though he noted that Binance implemented a compliance program. “In my mind, I wanted to do everything possible before stepping down as CEO,” he said before Jones.

The judge argued that Zhao’s “better to ask forgiveness than permission” philosophy was troubling, but ultimately decided on a lesser sentence than the 36 months requested by prosecutors. “Everything I see about your history and characteristics are of a mitigating nature and a positive nature,” Jones said, citing Zhao’s dedication to Binance and low likelihood to re-offend.

Zhao founded Binance in 2017, and it became the largest crypto exchange in just six months. Amid its meteoric growth, however, Binance struggled to implement effective “know your customer” and anti–money-laundering regimes — an embarrassing reality laid bare in complaints filed by the CFTC and Securities and Exchange Commission in 2023, including internal messages revealing that executives were aware of widespread compliance violations.  Despite — or perhaps owing to — Binance’s wildcat approach, Zhao became a global icon for the crypto industry, appearing at conferences from Portugal to the United Arab Emirates, which he made his de facto headquarters.  Still, as U.S. authorities circled around the world’s leading crypto companies, reports emerged that the DOJ was building a case against Binance....

In November, Attorney General Merrick Garland announced that the DOJ, along with the CFTC and Treasury Department, had reached a settlement with Binance and Zhao on charges related to money-laundering violations at the exchange.  The company agreed to pay $4.3 billion in fines spread among the agencies, which represented the largest enforcement action in Treasury Department history.  Notably, the settlement did not include fraud charges, and the SEC did not participate in the joint action. The agency continues to litigate its case against Binance in the U.S. District Court for the District of Columbia, where a judge recently held a hearing on Binance’s motion to dismiss the lawsuit.  The lack of more serious charges, along with the relatively light slap on the wrist for Zhao, led watchdog groups such as Better Markets to argue the settlement represented a “miscarriage of justice.”...

While Zhao’s plea deal laid out a potential sentence of 18 months in prison, prosecutors filed a memo last week requesting he serve 36 months, citing the “magnitude of Zhao’s willful violation of U.S. law and its consequences” and arguing that it would “not just send a message to Zhao but also to the world.”  In a concurrent filing, Zhao’s lawyers wrote that he “deeply regrets his offense” and asked for no time in prison, suggesting instead he be sentenced to house arrest. The request included letters from more than 160 friends and business associates, including members of the ruling families in the UAE and former U.S. ambassador to China Max Baucus, a former U.S. senator who serves on Binance’s advisory board.  Ultimately, Jones sided in part with Zhao’s team during Tuesday’s hearing, arguing against the prosecution’s proposed extended sentence given the lack of evidence that Zhao knew of illegal activity.

Parents of Michigan school shooter both sentenced to 10 to 15 years in state prison

As reported in this New York Times piece, "Jennifer and James Crumbley, who were convicted of involuntary manslaughter for failing to prevent their teenage son from killing four fellow students in the deadliest school shooting in Michigan’s history, were each sentenced on Tuesday to 10 to 15 years in prison." Here is more:

Their separate jury trials ended in guilty verdicts in February and March, making them the first parents in the country to be convicted over the deaths caused by their child in a mass shooting.

Involuntary manslaughter charges carry a penalty in Michigan of up to 15 years in prison, and prosecutors asked in sentencing memos filed to the court last week that the Crumbleys each serve at least 10 years. Both have been in jail for more than two years while awaiting trial and will receive credit for time served.

“Parents are not expected to be psychic,” Judge Cheryl Matthews of the Oakland County Circuit Court in Pontiac, Mich., said before issuing the sentence. “But these convictions are not about poor parenting. These convictions confirm repeated acts or lack of acts that could have halted an oncoming runaway train — repeatedly ignoring things that would make a reasonable person feel the hair on the back of her neck stand up.”

Before the hearing, prosecutors said that Ms. Crumbley, 46, was asking to be sentenced to house arrest on her defense lawyer’s property, rather than serving prison time. And Mr. Crumbley, 47, said that he had been wrongly convicted and his sentence should amount to the time he had already served in prison, adding that he felt “absolutely horrible” about what had happened....

The Crumbleys’ son, Ethan, was 15 when he carried out the shooting that killed Justin and Hana, as well as Madisyn Baldwin, 17, and Tate Myre, 16. Seven others were injured. Ethan Crumbley pleaded guilty to 24 charges, including first-degree murder, and was sentenced last year to life in prison without parole. He is still eligible to appeal that decision. His parents may appeal, too.

In the trials of both parents, prosecutors focused in part on their failure to remove their son from school after he made a violent drawing on the morning of the shooting. It included a written plea for help. They also emphasized Ethan’s access to a handgun that Mr. Crumbley had purchased. And they said that Ms. Crumbley had missed signs that her son was struggling with his mental health, adding that she took him to a gun range just days before the shooting.

Defense lawyers for both parents said they could not have foreseen the unspeakable violence their son would commit.

Their trials became a lightning rod for issues of parental responsibility at a time of high-profile gun violence by minors. In recent months, parents in other states have pleaded guilty to charges of reckless conduct or neglect after their children injured or killed others with guns. But the manslaughter charges against the Crumbleys were unique, and legal experts aid their trials could serve as a playbook for other prosecutors who seek to hold parents accountable in the future.

I am not familiar with Michigan's parole processes, but I sense this sentencing determination will ensure that the Crumbley parents will be serving a considerable amount of prison time.

Federal district judge references selective prosecution concerns in sentencing far-right violent protestor

I just saw this notable and extensive reporting on a notable sentencing from California last week.  The piece is headlined "Judge cites Antifa when rejecting prison for white supremacist’s former associate," and here are excerpts:  

A federal judge who believes the U.S. Department of Justice unconstitutionally prosecuted white supremacists for violence at political rallies said Thursday he knows “the government and others” will disagree with his decision to leniently sentence a man for punching a journalist in 2017.  Prosecutors wanted a year of probation and six months in prison for Tyler Laube, a former associate of Rise Above Movement founder and neo-Nazi Robert Rundo, while his lawyer asked for no prison and no probation. 

During a 24-minute hearing on Thursday in Santa Ana, California, U.S. District Judge Cormac J. Carney credited Laube for 35 days already served in jail, fined him $2,000 and ordered him to be on probation for one year.  Carney’s 22-page memorandum said he has “no doubt” prosecutors’ opposition to a lighter sentence is “focusing entirely on Mr. Laube’s past white-supremacist beliefs and ignoring the violent conduct of Antifa and the similar groups.”

“Viewing Mr. Laube’s actions in context, it does not appear he intended to single out and target a journalist,” Carney wrote.  “Violence erupted at the rally. Mr. Laube did not start the violence. Indeed, he was slapped in the face twice before engaging in any violence,” the judge continued. “Once violence started, Mr. Laube and other RAM members reacted to the Antifa members that were harassing and physically attacking Trump supporters.”

Carney said he “cannot cast aside the Constitution and ignore the mitigating factors and sentencing objectives under Section 3353(a),” referring to the federal law governing sentencings.  “The Constitution and the laws of the United States apply to everyone,” the judge wrote. “We must never forget that if the political winds change in this country, and the new government decides to turn on those not sharing the new government’s views, it will be the rights and liberties guaranteed by the Constitution and the laws of the United States that will protect us.”

The judge quoted Robert Bolt’s 1960 play A Man for All Seasons: “Yes, I’d give the Devil benefit of law, for my own safety’s sake.”... The case has a long history: In June 2019, Carney allowed Laube to withdraw his guilty plea for felony conspiracy after he dismissed Rundo and Boman’s charges on First Amendment grounds, but the U.S. 9th Circuit Court of Appeals reinstated the indictment.

Given his previous decisions, Carney likely would have allowed Laube to withdraw his plea to misdemeanor interference with a federally protected right without bodily injury, too. But the U.S. Attorney’s Office also is appealing the judge’s February dismissal order to the 9th Circuit, which already has curtailed the judge’s ability to release Rundo from jail.

If Laube withdrew his plea and Carney dismissed his charges, he could end up in court again should the 9th Circuit reverse the latest dismissal as it did in 2020 with the first dismissal. Carney also is retiring at the end of May, so the case would go to another judge. Because Laube stuck with his plea on Thursday, Carney had no choice but to impose a sentence.

I recommend the full article about these matters, which provides additional backstory and links to sentencing filings. In addition, Judge Carney's lengthy sentencing memo is a fascaniting read (with pictures).  Interestingly, in a footnote toward the close of the sentencing opinion, Judge Carney explains his selective prosecution conclusions are not essential to his sentencing determination: "even ignoring the Court’s selective prosecution finding and the fact that similarly situated individuals did not face prosecution, much less any term of imprisonment, the Court would still conclude that a sentence less than six months is appropriate because the other Section 3553(a) factors weigh in favor of a lesser sentence."

Federal district judge references selective prosecution concerns in sentencing far-right violent protestor

I just saw this notable and extensive reporting on a notable sentencing from California last week.  The piece is headlined "Judge cites Antifa when rejecting prison for white supremacist’s former associate," and here are excerpts:  

A federal judge who believes the U.S. Department of Justice unconstitutionally prosecuted white supremacists for violence at political rallies said Thursday he knows “the government and others” will disagree with his decision to leniently sentence a man for punching a journalist in 2017.  Prosecutors wanted a year of probation and six months in prison for Tyler Laube, a former associate of Rise Above Movement founder and neo-Nazi Robert Rundo, while his lawyer asked for no prison and no probation. 

During a 24-minute hearing on Thursday in Santa Ana, California, U.S. District Judge Cormac J. Carney credited Laube for 35 days already served in jail, fined him $2,000 and ordered him to be on probation for one year.  Carney’s 22-page memorandum said he has “no doubt” prosecutors’ opposition to a lighter sentence is “focusing entirely on Mr. Laube’s past white-supremacist beliefs and ignoring the violent conduct of Antifa and the similar groups.”

“Viewing Mr. Laube’s actions in context, it does not appear he intended to single out and target a journalist,” Carney wrote.  “Violence erupted at the rally. Mr. Laube did not start the violence. Indeed, he was slapped in the face twice before engaging in any violence,” the judge continued. “Once violence started, Mr. Laube and other RAM members reacted to the Antifa members that were harassing and physically attacking Trump supporters.”

Carney said he “cannot cast aside the Constitution and ignore the mitigating factors and sentencing objectives under Section 3353(a),” referring to the federal law governing sentencings.  “The Constitution and the laws of the United States apply to everyone,” the judge wrote. “We must never forget that if the political winds change in this country, and the new government decides to turn on those not sharing the new government’s views, it will be the rights and liberties guaranteed by the Constitution and the laws of the United States that will protect us.”

The judge quoted Robert Bolt’s 1960 play A Man for All Seasons: “Yes, I’d give the Devil benefit of law, for my own safety’s sake.”... The case has a long history: In June 2019, Carney allowed Laube to withdraw his guilty plea for felony conspiracy after he dismissed Rundo and Boman’s charges on First Amendment grounds, but the U.S. 9th Circuit Court of Appeals reinstated the indictment.

Given his previous decisions, Carney likely would have allowed Laube to withdraw his plea to misdemeanor interference with a federally protected right without bodily injury, too. But the U.S. Attorney’s Office also is appealing the judge’s February dismissal order to the 9th Circuit, which already has curtailed the judge’s ability to release Rundo from jail.

If Laube withdrew his plea and Carney dismissed his charges, he could end up in court again should the 9th Circuit reverse the latest dismissal as it did in 2020 with the first dismissal. Carney also is retiring at the end of May, so the case would go to another judge. Because Laube stuck with his plea on Thursday, Carney had no choice but to impose a sentence.

I recommend the full article about these matters, which provides additional backstory and links to sentencing filings. In addition, Judge Carney's lengthy sentencing memo is a fascaniting read (with pictures).  Interestingly, in a footnote toward the close of the sentencing opinion, Judge Carney explains his selective prosecution conclusions are not essential to his sentencing determination: "even ignoring the Court’s selective prosecution finding and the fact that similarly situated individuals did not face prosecution, much less any term of imprisonment, the Court would still conclude that a sentence less than six months is appropriate because the other Section 3553(a) factors weigh in favor of a lesser sentence."

Notable new research on state cuts to Medicaid and crime

Bolts magazine has this interesting new article discussing some interesting new research headlined "“We Need to See the Bigger Picture”: How Cuts to Medicaid Hurt Public Safety." Here are some excerpts from the article, which is worth reading in full:

When a state made cuts to Medicaid, depriving people of access to health insurance, the crime rate increased: That’s the finding of a new academic study, supported by the National Institutes of Health and released as a working paper in March by four scholars who study public health.

The study comes at a time when many states are ramping up punishment in response to crime, while leaving public services largely underfunded.  One of the study’s authors, Catherine Maclean, a professor of public policy at George Mason University, tells Bolts that policymakers should keep in mind the critical value of a strong social safety net for stabilizing communities....

A number of states are contemplating further Medicaid cuts, including Kentucky, Utah, and New York.  Elsewhere, in Mississippi and South Dakota, voters have tried to force elected leaders to expand Medicaid via direct democracy, but with mixed success.  And on the national stage, Donald Trump is running for president again, calling for dramatic slashing of public funds for health coverage.

Bolts spoke with Maclean about what the Tennessee study can tell us about the link between health insurance and public safety today; about what has and hasn’t changed since 2005; and about current proposed cuts to government-provided health insurance.  “You might save some dollars in terms of Medicaid, but that may lead to some other problems with other objectives, like promoting public safety,” she warned.

Speaking of reading in full, the entire NBER woking paper article, titled "Losing Medicaid and Crime," can be found at this link. Here is its abstract:

We study the impact of losing health insurance on criminal activity by leveraging one of the most substantial Medicaid disenrollments in U.S. history, which occurred in Tennessee in 2005 and lead to 190,000 non–elderly and non–disabled adults without dependents unexpectedly losing coverage.  Using police agency–level data and a difference–in–differences approach, we find that this mass insurance loss increased total crime rates with particularly strong effects for nonviolent crime. We test for several potential mechanisms and find that our results may be explained by economic stability and access to healthcare.

"How to Reform Correctional Mental Health Care"

The title of this post is the title of this new report authored by Stephen Eide of the Manhattan Institute.  Here the report's executive summary:

“Trans-institutionalization” refers to the shift of seriously mentally ill adults from the care of psychiatric institutions to correctional institutions.  Beginning in the 1950s, public mental health agencies have pursued the deinstitutionalization of the seriously mentally ill.  These government agencies intended to meet that goal through creating a system of community-based care to replace the asylum-based systems.  Deinstitutionalization did not succeed as planned.  Consequently, jails and prisons became the custodians of hundreds of thousands of seriously mentally ill adults who in previous eras would have been committed to an asylum.

Some dispute the magnitude of trans-institutionalization.  But no one denies the high rate of serious mental illness among the incarcerated, or that jails and prisons are poor settings in which to treat serious mental illness. Correctional mental health care now stands as one of the most important mental health care systems in the nation. Jails and prisons are legally obligated to serve the seriously mentally ill, whereas community-based systems are not. More effective community-based mental health remains an important goal to pursue.  But equally important is the reform of corrections-based systems.  Better correctional mental health care systems will benefit both community systems and the seriously mentally ill themselves.

This report will explain how corrections-based systems function.  It will place those systems in the context of debates around “jail abolition,” explain their workforce and financial challenges, and recommend the following reforms:

1. State governments should assume more responsibility for funding jail-based mental health care.
2. Correctional mental health systems have special responsibility to the seriously mentally ill and are justified in targeting resources accordingly.
3. Collect, keep, and report better data.
4. Repeal Medicaid’s Institution for Mental Diseases (IMD) exclusion.
5. Correctional institutions should make more use of long-acting injectables during discharge.
6. Eliminate overuse of administrative segregation (solitary confinement); do not abolish it.
7. Do not use telehealth when reliance on onsite clinical staff is feasible.

"Shocking Sentences"

The title of this post is the title of this new article authored by John B. Meixner Jr. now available via SSRN. Here is its abstract:

Harsh recidivist sentencing penalties, like three-strikes laws, have been criticized heavily among both academics and practitioners on a number of different grounds.  Most arguments focus on how sentences arising from these penalties are disproportionate — that there is no sensible relationship between the wrong committed and the sentence imposed. Those critiques are valid, but there’s another important problem with recidivist sentencing penalties that has been overlooked: they lead to sentences that are totally unexpected — indeed, shocking — to the defendants who face them. Many recidivist sentencing penalties cause large leaps in sentencing exposure that amount to exponential growth when compared with a defendant’s prior sentences.

We can better understand the problem of shocking sentences (and how to solve it) by understanding the psychological phenomenon that likely causes it: the exponential growth bias.  Across a number of domains, people making quantitative decisions tend to presume linear growth will occur, even in light of evidence that the growth is exponential.  I argue that this phenomenon happens in sentencing as well, and explains — at least in part — why defendants don’t anticipate these types of sentences.

Understanding the psychological underpinning of shocking sentences helps us understand why they are harmful: they undermine due process and predictability in the law, they limit potential deterrence, and they’re out of line with everyday intuitions about sentencing.  Flatly, they’re bad sentencing policy, and we should reduce them or eliminate them outright.  But even if eliminating shocking sentences is politically untenable, there may be ways to reduce the effect of the exponential growth bias.  Applying lessons learned from the psychological literature, I suggest ways to provide increased notice of recidivist sentencing provisions aimed to make them less shocking.

Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds

As reported in this Wall Street Journal piece, "FTX founder Sam Bankman-Fried was sentenced Thursday to 25 years in prison for fraud tied to the collapse of his digital exchange, capping his meteoric rise and fall." Here is more:

Less than two years ago, Bankman-Fried was the crypto king. The moptop millennial hobnobbed with heads of state, soaked up Caribbean views from his $30 million penthouse and vowed to use his wealth to better humanity.

Last year, a jury found the 32-year-old guilty of stealing billions of dollars from FTX customers and defrauding investors and lenders to his crypto investment firm Alameda Research.

Bankman-Fried, standing with his hands clasped, told the judge before sentencing Thursday that he was haunted every day by what he had thrown away. “I was responsible for FTX, and its collapse is on me,” he said during a 20-minute statement. A lot of people were let down, he said, adding, “I’m sorry about that.”

Federal prosecutors said Bankman-Fried committed one of the greatest financial frauds in U.S. history. Fueled by greed and hubris, he used other people’s money to fund his lavish lifestyle, make risky investments and pursue his political agenda, according to prosecutors. Prosecutors asked U.S. District Judge Lewis Kaplan to sentence Bankman-Fried to 40 to 50 years in prison. Without a lengthy sentence, Bankman-Fried could commit more crimes, Assistant U.S. Attorney Nicolas Roos told the court. “If Mr. Bankman-Fried thought that mathematics would justify it, he would do it again,” Roos said.

Bankman-Fried’s lawyers argued a sentence of no more than six years in prison was more appropriate, saying he still had much to offer to society. They pointed to his autism, his deep remorse and his charitable works as reasons for a lenient sentence. Marc Mukasey, his lawyer, told the judge that Bankman-Fried wasn’t a “ruthless financial serial killer” who sought to hurt people. “Sam Bankman-Fried does not make decisions with malice in his heart,” said Mukasey. “He makes decisions with math in his head.”...

During a monthlong trial in the fall, jurors heard testimony from three of Bankman-Fried’s top lieutenants, including his ex-girlfriend, who said the FTX founder directed them to commit crimes alongside him. Bankman-Fried took the unusual step of testifying in his own defense. He told jurors that he never committed fraud, yet he struggled under cross examination, saying dozens of times that he didn’t recall specifics.

Kaplan said Thursday that Bankman-Fried committed perjury during his testimony, including when he told jurors that until fall 2022, he had no knowledge that Alameda had spent FTX customer deposits.

In the weeks before the sentencing, Bankman-Fried’s supporters wrote letters to the judge, saying that his struggles with depression, autism and anhedonia — the inability to feel happiness — weigh in favor of a lighter sentence....

Kaplan said Thursday that in determining the sentence, he wasn’t weighing whether customers would get their money back. “A thief who takes his loot to Las Vegas and successfully bets the stolen money is not entitled to a discount on the sentence,” the judge said.

Prior related posts (in some of which I set the over/under at 25 years):

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Some notable developments and commentary on Sam Bankman-Fried's coming sentencing
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Rounding up a few sentencing speculations a few days before Sam Bankman-Fried's sentencing

Supreme Court seems inclined to limit, but not eliminate, Apprendi's prior-conviction exception

As previewed in this post, the Supreme Court this morning heard oral argument in Erlinger v. United States, No. 23-370, to consider whether the Sixth Amendment requires a jury to find (or a defendant to admit) that prior offenses were "committed on occasions different from one another" to trigger the severe mandatory minimum sentence of the Armed Career Criminal Act.  As revealed in some of the headlines of press pieces about the argument, it seems a majority of Justices are likely to find Apprendi rights apply here:

From Bloomberg Law, "High Court Suggests Robust Jury Right for Longer Sentences"

From Courthouse News Service, "Supreme Court leans toward jury review for career criminal sentences"

From Law360, "Sotomayor 'Annoyed' By Supreme Court's Focus On History"

The full 90-minute oral argument in Erlinger is available at this link, and it makes for an interesting listen.  I especially liked, in light of my prior post, the very first question in the argument: Justice Thomas asked, after hearing the defense's opening statement urging limits on the Almendarez-Torres prior-conviction exception to Apprendi, "wouldn't it be more straightforward to overrule Almendarez-Torres?".   In turn, Justice Alito followed up by asking "if we were to reexamine that, would it then be appropriate to reexamine the entire question that was opened up in Apprendi?".

In the end, it seems neither Almendarez-Torres nor Apprendi are in any real jeopardy.  A majority of Justices were clearly inclined to adopt the view, argued by both the defense and the government, that  Apprendi's prior-conviction exception is confined to just the fact of a prior conviction so that any offense-related facts beyond the elements of the prior crime must be proven to a jury if those facts increase the applicable sentencing range.  Less clear is whether the Court might reach resolve this case unanimously.  Justice Alito has never been a big fan of Apprendi rights, and a few other Justices seemed interested in discussing some historical practices of judges finding facts related to recidivism.   Just how this case gets written up may prove interesting.

Texas justice?: how should deal cut by special prosecutors to end felony charges against Texas AG be described?

I have not followed closely any of the legal cases and dramas surrounding Texas Attorney General Ken Paxton, but the news of a deal to end long-running state criminal charges against him caught my eye in part because I am not quite sure how to describe it.  As detailed in this local article, headlined "Ken Paxton agrees to community service, paying restitution to avoid trial in securities fraud case," the resolution is not a plea deal because AG Paxton is not pleading guilty to anything.  And yet, AG Paxton is agreeing to serve a kind of sentence functionally and to being under the yoke of prosecutors for an extended period:

Prosecutors on Tuesday agreed to drop the securities fraud charges facing Attorney General Ken Paxton if he performs 100 hours of community service and fulfills other conditions of a pretrial agreement, bringing an abrupt end to the nearly nine-year-old felony case that has loomed over the embattled Republican since his early days in office.

The deal, which landed three weeks before Paxton is set to face trial, also requires him to take 15 hours of legal ethics courses and pay restitution to those he is accused of defrauding more than a decade ago when he allegedly solicited investors in a McKinney technology company without disclosing that the firm was paying him to promote its stock. The amount of restitution totals about $271,000, prosecutor Brian Wice said.

Paxton, who will not have to enter a plea under the terms of the agreement, faced the prospect of decades in prison if he had been convicted of fraud. His status as a felon, based in part on an opinion he issued himself, would have likely barred him from running for office in the future. Paxton attorney Dan Cogdell said the prosecutors “approached us” and Paxton was “happy to agree to the terms of the dismissal.”

“But let me be clear, at no time was he going to enter any plea bargain agreement or admit to conduct that simply did not occur,” Cogdell said in a statement. “There is no admission of any wrongdoing on Ken’s part in the agreement because there was no wrongdoing on his part.”

The deal is the second major win for Paxton in roughly the last six months, after the Republican-controlled Texas Senate acquitted him last fall of 16 impeachment charges centered on allegations that he accepted bribes and abused the authority of his office to help a wealthy friend and campaign donor....

Two of the charges — first-degree felonies — stemmed from allegations that Paxton persuaded investors, including a then-GOP state lawmaker, to buy at least $100,000 worth of stock in a tech startup, Servergy, without disclosing that he would be compensated for it. Paxton will have 18 months, the length of the pretrial deal period, to pay restitution to the former lawmaker, Byron Cook, and the estate of Joel Hochberg, a Florida businessman who died last year. Wice said he is “not necessarily opposed" to dropping the charges before the 18 months are up if Paxton makes the payments sooner. He said Paxton cannot use campaign funds to pay restitution....

Wice said he had been “besieged by a torrent of phone calls” from people who have “expressed their monumental displeasure with the fact that these cases are being resolved with a pretrial intervention.” Touting the restitution Paxton now owes to his alleged victims, Wice said it was more important to secure justice for them than to pursue prison time for Paxton, which he said should only be a priority if the defendant poses a threat to public safety....

Paxton will perform community service in Collin County, where he resides, with an "entity or organization" agreed upon by both sides, Wice said — likely a "food pantry or soup kitchen." He will also be required to check in with prosecutors every 60 days to ensure he is fulfilling the terms of the deal. The case could still resume and head to trial if Paxton fails to comply.

I think it would be fair to label this resolution a deferred prosecution agreement or maybe a non-prosecution agreement, though it appears the special prosecutor calls this a "pretrial intervention."  Whatever the right label, I wonder if this arrangement is unusual in Texas criminal justice arenas.  I also wonder whether folks view this resolution as true Texas justice or a kind of special Texas justice.

Might Justice Thomas advocate for entirely eliminating the Apprendi's prior-conviction exception in Erlinger?

Though lots of other cases are, understandably, getting lots more attention this Term, I am still quite excited that the Supreme Court will hear tomorrow a notable (and big?) case about Apprendi rights in Erlinger v. United States, No. 23-370.  There are procedural and substantive issues that have my attention in this notable sentencing case.

Procedurally, the federal government not only requested certiorari along with the criminal defendant, but DOJ agrees with the defense's claim that the Sixth Amendment requires a jury to find (or a defendant to admit) that prior offenses were "committed on occasions different from one another" to trigger the severe mandatory minimum sentence of the Armed Career Criminal Act, 18 USC § 924(e)(1).  Because DOJ and Erlinger have the same basic view on the law, SCOTUS appointed Nick Harper as an amicus to argue on behalf of the judgment below.  In this merits brief, the amicus ably argues that the "Constitution permits judges to determine whether a defendant’s prior offenses occurred on different occasions when imposing an enhanced sentence under ACCA."  Amicus Brief at 6 (emphasis added).  This Law360 article, headlined "In High Court Sentencing Case, It's Everyone V. Gibson Dunn," notes that nobody other than the court-appointed amicus contests the defendant's Sixth Amendment claim here.

Substantively, I am on record as thinking there is a sound textual basis in the Sixth Amendment for distinguishing between fact-finding of offense conduct and offender characteristics.  See Conceptualizing Blakely, 17 Federal Sentencing Reporter 89 (2004); see also Berman & Bibas, Making Sentencing Sensible, 4 Ohio State Journal of Criminal Law 37 (2006).  But the Supreme Court in Cunningham v. California, 549 U.S. 270 (2007), rejected that distinction.  And the substantive constitutional issue in Erlinger has my attention for three additional reasons: (1) the Supreme Court has largely ignored or sought to avoid a range of Sixth Amendment jury/judge Apprendi issues over the last decade (see, e.g, acquitted conduct sentencing enhancements), (2) the topic at issue in Erlinger, namely the reach of a "prior conviction exception" to the Sixth Amendment jury rule, in a sense pre-dates even Apprendi, and (3) Justice Thomas has suggested since his concurrence in Apprendi that an originalist understanding of the Sixth Amendment means even "the fact of a prior conviction is an element under a recidivism statute."  

I could write for days about all these substantive Apprendi matters (indeed, I have already written for years about them).  But it is item (3) above — Justice Thomas's view that an originalist understanding of the Sixth Amendment means even "the fact of a prior conviction is an element under a recidivism statute" — that prompts the question in the title of this post.  Because it seems Justice Gorsuch and Barrett also consider themselves committed originalists, I am wondering if someone during oral argument might bring up the idea of entirely eliminating Apprendi's prior-conviction exception.  I do not believe the parties have advocated such a change to Apprendi jurisprudence, as DOJ and Erlinger just argue the excpetion should be limited to the bare fact of a prior conviction.  But if the Court is, or if at least some Justices are, inclined to take an originalist approach to this case, why further preserve an exception of the Sixth Amendment that lacks originalist support?

Rounding up a few sentencing speculations a few days before Sam Bankman-Fried's sentencing

Though we are still a few days from the high-profile sentencing of former FTX CEO Sam Bankman-Fried, I have already seen some lengthy press pieces discussing the sentencing filings and speculating about how US District Judge Lewis Kaplan with weigh competiting arguments.  Here is a round up:

From Business Insider, "FTX's victims may get all their money back. The judge sentencing Sam Bankman-Fried might not care."

From CoinDesk, "U.S. Government's Legal Precedents Don't Support Lengthy Prison Term, Bankman-Fried's Defense Argues"

From Inc., "Is Sam Bankman-Fried a 'Super-Villain' or Just a Bad Trader?"

From Unchained, "SBF’s Prison Sentencing Is Coming Up. How Many Years Will He Get?"

I remain inclined to put the over/under for an imprisonment term here at 25 years, in part because I ccan readily imagine the sentence being somewhat shorter or somewhat longer. 

Prior related posts:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Some notable developments and commentary on Sam Bankman-Fried's coming sentencing
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried

"The Delinquent Guidelines: Calling on the U.S. Sentencing Commission to Stop Counting Defendants’ Prior Offenses Committed Before Age 18"

The title of this post is the title of this new article authored by Ian Marcus Amelkin and Nicholas Pugliese now available via SSRN. Here is its abstract:

The United States Sentencing Guidelines’ recidivism provisions recommend harsher punishment for defendants with a prior criminal record. The Guidelines authorize an accounting not only of a federal defendant’s criminal record as an adult, but also as a child. Prior offenses committed before age 18 enhance sentences for thousands of people each year, but the practice has not been widely explored in the academic literature. A federal defendant’s juvenile record can lead to a higher Guidelines range through a variety of mechanisms: it can increase a defendant’s criminal history category, increase the crime’s total offense level, qualify the individual for “career offender” status, and deny relief from mandatory minimum sentences.

The use of pre-18 priors to enhance later federal sentences is both constitutionally suspect and misguided public policy. First, the practice stands in tension with Supreme Court precedent recognizing “that children are constitutionally different from adults for purposes of sentencing” in a way that makes them “less deserving of the most severe punishments.” Second, it is unequitable to people of color, who are more likely to be prosecuted for their pre-18 conduct than their white counterparts who commit similar acts. Third, it generates unequal treatment between similarly-situated defendants, a result at odds with the Guidelines’ “primary goal” of fostering uniformity in sentencing. Finally, it raises problems of notice given that pre-18 offenders are not told that their juvenile or youthful offender cases, which are not “convictions” under most states’ laws, can later be used against them to enhance a future federal sentence.

Now that the Sentencing Commission is back in action following a three-and-a-half-year hiatus, this article recommends that the Commission amend the Guidelines to stop counting pre-18 prior offenses.

Intriguing spread in outcomes after Mississippi "Goon Squad" sentencings

I have not followed at all the ugly details involved in the so-called "Goon Squad" case from Mississippi, but a number of folks have flagged these cases for me this week as six police officers have been sentenced in federal court for abusing two men.  This new CBS News article provides some details under the headline "All 6 officers from Mississippi "Goon Squad" have been sentenced to prison for torturing 2 Black men."  Here are the basics:

Sentencing has concluded for the six white former officers in Mississippi who pleaded guilty to breaking into a home without a warrant and torturing two Black men.

High-ranking former deputy Brett McAlpin, 53, was the fifth former law enforcement officer sentenced this week by U.S. District Judge Tom Lee after pleading guilty to the attack, which involved beatings, repeated uses of stun guns and assaults with a sex toy before one of the victims was shot in the mouth. The final member of the group, 32-year-old former Richland police officer Joshua Hartfield, was given a sentence of about 10 years on Thursday afternoon....

Lee has also sentenced four other former law enforcement officers who were involved in the attack.  Christian Dedmon was sentenced to 40 years in prison for his role in that attack and another incident in December 2022.  Hunter Elward was sentenced to over 20 years in prison.  Two other officers, Jeffrey Middleton and Daniel Opdyke, were sentenced to 17.5 years in prison each.

For each of the deputies sentenced so far, Lee has handed down prison terms near the top of the sentencing guidelines. Lee has previously called the officers' actions "egregious and despicable." The attack involved beatings, repeated uses of stun guns and assaults with a sex toy before one of the victims was shot in the mouth in a mock execution gone awry.

Once inside, the officers mocked the victims with racial slurs and shocked them with stun guns. They handcuffed them and poured milk, alcohol and chocolate syrup over their faces. Dedmon and Opdyke assaulted them with a sex toy. They forced them to strip naked and shower together to conceal the mess, and Hartfield guarded the bathroom door to make sure the men didn't escape.

After Elward shot Jenkins in the mouth, lacerating his tongue and breaking his jaw, they devised a coverup. McAlpin pressured Parker to go along with it, asking him to keep quiet in exchange for his freedom. The deputies agreed to plant drugs, and false charges stood against Jenkins and Parker for months. McAlpin and Middleton, the oldest men of the group, threatened to kill the other officers if they spoke up....

Attorneys for several of the deputies said their clients became ensnared in a culture of corruption that was not only permitted, but encouraged by leaders within the sheriff's office.

Based on this article, I surmise the sentencing outcomes (and apparently the guideline calculations) for this joint criminal activity varied considerably because the roles of each defendant varied considerably (and it seems the one defendant who got the very longest sentence was being sentenced for two incidents).   I would be eager to hear in the comments from anyone who has followed these cases more closely about more of the sentencing details.

"Reducing Barriers: A Guide to Obtaining Reasonable Accommodations for People with Disabilities on Supervision"

The title of this post is the title of this new report from the ACLU.  Here is a part of its introduction:

Scores of people in the United States are under probation, parole, and other forms of post-conviction “supervision.” As of 2021, nearly 4 million people in the U.S. — or 1 in every 69 — were on probation or parole. Supervision requires strict adherence to dozens of wide-ranging, vague, and conflicting rules — under penalty of sanctions, including incarceration — for any slip-up.  Thus, rather than an alternative to incarceration, supervision is often a tripwire into jail and prison. In 2017, nearly half of all prison admissions in the U.S. stemmed from supervision violations.

For people with disabilities, success under supervision is particularly challenging. Substantial numbers of people on supervision have disabilities, including mental health, intellectual/developmental (ID/D), sensory, and physical disabilities.  Such individuals regularly face heightened barriers to understanding and complying with supervision rules, effectively communicating with supervision authorities and other stakeholders, getting to required appointments, obtaining and maintaining employment, participating in required treatment programs, abstaining from drugs and alcohol, and adhering to electronic monitoring requirements.  Given other forms of structural discrimination, these barriers are particularly high for people with disabilities who are Black and Brown, LGBTQ, and/or experiencing homelessness or poverty.

People with disabilities thus regularly need changes to the way supervision is administered, such as appointment reminders, plain-language instructions, deaf interpreters, and alternative meeting times or locations....

Using federal disability law as its framework, this Guide discusses barriers to success for people with disabilities who are on supervision, and offers potential reasonable accommodations.  It is intended for defense attorneys representing people with disabilities who are facing, or actively serving, terms of supervision.  Using information in this Guide, attorneys can advocate for their clients to receive legally-mandated reasonable accommodations.  Attorneys may raise “reasonable accommodations” claims during legal proceedings, as well as through letters or informal discussions with supervision authorities.  Attorneys can bring such claims throughout the supervision process — when conditions are initially imposed, over the course of supervision, and during revocation proceedings.  Generally, accommodation needs should be raised as early as possible.

"Repairing the 'Sea of Disorganized' Procedures for Determining Competency for Execution"

The title of this post is the title of this new article authored by Melanie Kalmanson and Bridget Maloney now available via SSRN. Here is its abstract:

When the government executes a person with severe mental illness, it is questionable whether the execution even serves any true retributive purpose due to the prisoner’s inability to rationally understand the reasoning for the execution.  Since the U.S. Supreme Court’s landmark decision in Ford v. Wainwright, scholars and courts have debated the appropriate process for determining a prisoner’s competency for execution — and what that even means.

Despite decades of discourse, recent cases — most significantly recent executions of persons who suffered from severe mental illness — illustrate that the processes used across the country for determining competency for execution are insufficient.  This article presents a multifaceted solution to how states can improve their processes for reviewing whether prisoners are competent for execution in an effort to ensure each execution comports with the requirements of the Eighth Amendment, as established in Ford and its progeny.  Practically, the article proposes recommendations for the process courts use to determine whether a prisoner is incompetent for execution — including imposing a mandatory stay to allow adequate time for the determination and updating the standard of incompetency.  Also, for the first time, this article contemplates regulating certain aspects of experts’ evaluations of prisoners who claim incompetency for execution — including requiring certain diagnostic imaging and standardizing the format of expert evaluations.

In notable 6-3 split, SCOTUS rules in Pulsifer that "and" means "or" for application of FIRST STEP safety valve

The Supreme Court this morning handed down its opinion in the sentencing case of this Term I have been watching most closely to date, Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  The Court ruled for the government in an unusual 6-3 split (though a division that was somewhat foreshadowed by the oral argument way back onthe first day of this Term).  Specifically, Justice Kagan authored the opinion for the Court, while Justice Gorsuch filed a dissenting opinion joined by Justices Sotomayor and Jackson.  Here is how the Court's lengthy opinion (available here) gets started: 

The “safety valve” provision of federal sentencing law exempts certain defendants from mandatory minimum penalties, thus enabling courts to give them lighter prison terms.  To qualify for safety-valve relief, a defendant must meet various criteria, one of which addresses his criminal history.  That criterion, in stylized form, requires that a defendant “does not have A, B, and C” — where A, B, and C refer to three ways in which past criminality may suggest future dangerousness and therefore warrant a more severe sentence.  In brief (with details below), A, B, and C are “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.”

The question presented is how to understand the criminal-history requirement. The Government contends that the phrase “does not have A, B, and C” creates a checklist with three distinct conditions.  On that view, a defendant meets the requirement (and so is eligible for safety-valve relief ) if he does not have A, does not have B, and does not have C.   Or stated conversely, a person fails to meet the requirement (and so cannot get relief ) if he has any one of the three.  The petitioner here instead contends that the phrase “does not have A, B, and C” sets out a single, amalgamated condition for relief.  On his reading, a defendant meets the requirement (and is eligible for relief ) so long as he does not have the combination of A, B, and C.  Or put conversely, he fails to meet the requirement (and cannot get relief ) only when he has all three.  Today, we agree with the Government’s view of the criminal-history provision.

Justice Gorsuch's dissent, which runs even longer than the Court's opinion, kicks off:

The First Step Act of 2018 may be “‘the most significant criminal justice reform bill in a generation.’” Brief for Sen. Richard J. Durbin et al. as Amici Curiae in Terry v. United States, O. T. 2020, No. 20–5904, p. 9.  Through the 1980s and 1990s, Congress adopted an ever-increasing number of ever-longer mandatory minimum prison sentences.  In part due to these policies, the federal prison population grew by more than 100% in less than a decade.  In the First Step Act, Congress sought to recalibrate its approach.  It did so by promising more individuals the chance to avoid one-sizefits-all mandatory minimums and receive instead sentences that account for their particular circumstances and crimes.

This dispute concerns who is eligible for individualized sentencing and who remains subject to mandatory minimums after the First Step Act.  Before the Act, a defendant seeking to avoid a mandatory minimum had to satisfy five stringent statutory tests.  After the Act, all those tests remain, only the first is now less demanding.  As revised, it provides that a defendant may be eligible for individualized sentencing if he “does not have” three traits: (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point violent offense.  In lower court proceedings, the government admitted that this new test is “most natural[ly]” read to mean what it says: A defendant may be eligible for individualized sentencing unless he possesses all three listed traits — A, B, and C. Brief for United States in No. 19–50305 (CA9), p. 7 (Government CA9 Brief ); id., at 10–11; accord, Brief for United States in No. 21–1609 (CA8), p. 11 (Government CA8 Brief ).  Despite its admission, however, the government urges us to adopt a different construction. It asks us to read the First Step Act as promising a defendant a chance at individualized sentencing only when he does not have any of the three listed traits — A, B, or C.

If this difference seems a small one, it is anything but.  Adopting the government’s preferred interpretation guarantees that thousands more people in the federal criminal justice system will be denied a chance — just a chance — at an individualized sentence.  For them, the First Step Act offers no hope.  Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result.  Ordinary meaning is its first victim.  Contextual clues follow.  Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering.  Respectfully, I would not indulge any of these moves.

Though I will need some time to read and re-read these opinions before having firm thoughts, this ruling serves as still more evidence that SCOTUS is no longer one of the most pro-defendant sentencing appeals courts.  I got in the habit of making this point for a number of years following the Apprendi/Blakely/Booker line of rulings during a time when most federal circuit courts were often consistently more pro-government on sentencing issues than SCOTUS (sometimes led by Justice Scalia or Justice Stevens or Justice Kennedy reversing circuit rulings for the government).  But we are clearly in a different time with different Justices having different perspectives on these kinds of sentencing matters.

Another look at the challenges prisons face with an aging prison population

NPR has this lengthy new story about an "old" problem for prisons as they figure out how best to deal with an aging prison popultion.  I recommend the full piece, which is headlined "The U.S. prison population is rapidly graying. Prisons aren't built for what's coming."  Here are excerpts:

Prison is a difficult environment, and people behind bars tend to age faster than people on the outside.  For that reason, "geriatric" in prison can mean someone as young as 50, though it varies by state.  Any way you define it, the U.S. prison population is getting grayer — and fast.

The proportion of state and federal prisoners who are 55 or older is about five times what it was three decades ago.  In 2022, that was more than 186,000 people.  In Oklahoma, the geriatric population has quadrupled in the past two decades.  In Virginia, a quarter of the state's prisoners will be geriatric by 2030.  And in Texas, geriatric inmates are the fastest-growing demographic in the entire system.

Prison systems across the U.S. have a constitutional obligation to provide adequate health care, and they're racing to figure out how to care for the elderly in their custody — and how to pay for it....  As that population grows, he says, prisons have to adapt in all kinds of ways: making cells wheelchair accessible, accommodating prisoners who can no longer climb to an upper bunk, providing health care and food inside units when prisoners aren't mobile, installing more outlets for CPAP machines....

Today, there are more people serving a life sentence in prison than there were people in prison at all in 1970, according to a 2021 report from the Sentencing Project, an advocacy organization.

Caring for aging prisoners is expensive, but the data on just how expensive is murky.  A 2013 study estimated it could be anywhere from three to nine times more expensive than for younger prisoners.  And a 2015 report from the Justice Department's Office of the Inspector General found that federal prisons with the highest percentage of elderly prisoners spent five times more per person on medical care than those with the lowest percentage of aging prisoners.

A few (of many) older related posts:

• Examining the sources of an ever-aging US prison population
• New major report documents costs and concerns with aging prison populations
• Big new ACLU report highlights the high cost of high numbers of elderly prisoners
• "Aging Prisoners, Increasing Costs, and Geriatric Release"
• "Frail and Elderly Prisoners: Do They Still Belong Behind Bars?"
• US Sentencing Commission reports on "Older Offenders in the Federal System" 
• "Nothing but Time: Elderly Americans Serving Life Without Parole" 
• Prison Policy Initiative spotlights the "aging prison population"

"Mercy in Extremis, In-Group Bias, and Stranger Blindness"

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

Our perceptions of what we owe each other turn somewhat on whether we consider “another” to be “an other” — a stranger and not a friend.  In this essay, I examine the pronounced role that such in-group biases play in two distinct contexts.  First, in a legal order, officials tend to prioritize the norms and forms of the profession.  This institutional pride generates a lack of understanding for the actor or approach that operates beyond the bounds of the criminal legal system’s binary rules.  To the law enforcer, all becomes law and outlaw where the outlaw is a threat that must be neutered by punishment.  Second, in extremis, individuals fear outsiders and treat them, thereafter, with apathy or even outright animosity and violence.  In each context, in-group biases challenge epistemic capacities to determine appropriately when mercy and care are warranted.

To illustrate the difficulty, I interweave three case studies — one contemporary, one biblical, and one literary. I focus principally on tragic events at Memorial Medical Center in New Orleans where, in the aftermath of Hurricane Katrina, hospital staff likely euthanized acutely ill patients. I then draw upon “The Parable of the Good Samaritan” and Cormac McCarthy’s post-apocalyptic masterpiece, THE ROAD, to inform my reading of the murder case against a Memorial doctor. I argue that it is not obvious who at the medical center failed to be sufficiently “other”-regarding and, in any event, the criminal legal system is particularly ill-equipped to address the moral complexities of actions (and inactions) undertaken in extreme circumstances.  I conclude that the grand jury therefore did the right thing when it relied upon something like a “presumption of mercy” to refuse to indict the doctor.

Prison Policy Initiative releases "Women’s Mass Incarceration: The Whole Pie 2024"

The folks at Prison Policy Initiative have released its latest version of in its "Whole Pie" incarceration series with this new report titled "Women’s Mass Incarceration: The Whole Pie 2024" authored by Aleks Kajstura and Wendy Sawyer.  As I always recommend, everyone should click through to see all the great graphics and broader narratives that go with these reports. Here are parts of text from the start and the very end of this report:

With growing public attention to the problem of mass incarceration, people want to know about women’s experiences with incarceration.  How many women are held in prisons, jails, and other correctional facilities in the United States? Why are they there?  How are their experiences different from men’s?  These are important questions, but finding the answers requires not only disentangling the country’s decentralized and overlapping criminal legal systems, but also unearthing the frustratingly limited data that’s broken down by gender.

This report provides a detailed view of the 190,600 women and girls incarcerated in the United States and how they fit into the even broader picture of correctional control.  We pull together data from a number of government agencies and break down the number of women and girls held by each correctional system, by specific offense, in 446 state prisons, 27 federal prisons, 3,116 local jails, 1,323 juvenile correctional facilities, 80 Indian country jails, and 80 immigration detention facilities, as well as in military prisons, civil commitment centers, and prisons in the U.S. territories.  We also go beyond the numbers, including rare self-reported data from a national survey of people in prison to offer new insights about incarcerated women’s backgrounds, families, health, and experiences in prison. This report answers the questions of why and where women are locked up — and much more....

The picture of women’s incarceration is far from complete, and many questions remain about mass incarceration’s unique impact on women. This report offers the critical estimate that a quarter of all incarcerated women are unconvicted. But — since the federal government hasn’t collected the key underlying data in 20 years — is that number growing? And how do the harms of that unnecessary incarceration intersect with women’s disproportionate caregiving to impact families? Beyond these big picture questions, there are a plethora of detailed data points that are not reported for women by any government agencies. In addition to the many data holes and limitations mentioned throughout this report, we’re missing other basic data, such as the simple number of women incarcerated in U.S. territories or involuntarily committed to state psychiatric hospitals because of justice system involvement....

While more data are needed, the data in this report lend focus and perspective to the policy reforms needed to end mass incarceration without leaving women behind.

New Bureau of Justice Statistics report details "Heroin, Fentanyl, and Other Opioid Offenses in Federal Courts, 2021"

It is sometimes said that the wheels of justice turn slowly, and a new report provides an excuse to also note that the statistics of justice in federal courts often emerge slowly. This not-so-pithy observation is prompted by the emails I received today highlighting this new report from DOJ's Bureau of Justice Statistics titled "Heroin, Fentanyl, and Other Opioid Offenses in Federal Courts, 2021." Still, somewhat dated data is better than no data at all, and here is how the 24-page report gets started:

During fiscal year (FY) 2021, the Drug Enforcement Administration (DEA) made 3,138 arrests for fentanyl, 2,591 arrests for heroin, and 676 arrests for other opioid offenses.1 In FY 2021, for the first time, the number of arrests by the DEA for fentanyl (3,138) surpassed the number of arrests for heroin (2,591).  From FY 2020 to FY 2021, there was a 36% increase in arrests made by the DEA for fentanyl and a 29% decrease in arrests for heroin (table 1).  This report uses data from the Bureau of Justice Statistics’ (BJS) Federal Justice Statistics Program (FJSP) to describe persons arrested, convicted, and sentenced for federal drug offenses involving heroin, fentanyl, and other opioids....

N.1 Annual federal justice data are reported for the fiscal year, which is from October 1 to September 30.

HIGHLIGHTS

• From FY 2020 to FY 2021, the number of drug arrests the Drug Enforcement Administration (DEA) made for fentanyl increased by 36% from 2,305 to 3,138.
• In FY 2021, for the first time, the number of drug arrests the DEA made for fentanyl (3,138) surpassed the number of arrests for heroin (2,591).
• Of the 28,224 total drug arrests by the DEA in FY 2021, 3,138 (11%) were for fentanyl, 2,591 (9%) were for heroin, and 676 (2%) were for other opioids.
• DEA arrests for heroin, fentanyl, and other opioids increased from 4,830 in FY 2001 to a peak of 8,258 in 2015 and declined to 6,405 in FY 2021.
• In FY 2021,
  • 97% of persons sentenced for a drug offense involving opioids were sentenced for drug trafficking.
  • most persons sentenced for drug offenses involving heroin (89%) or fentanyl (87%) had a prior criminal history at sentencing.
  • persons sentenced for drug offenses involving heroin or fentanyl received a median prison term of 46 months, persons sentenced for oxycodone received a median prison term of 26 months, and persons sentenced for hydrocodone received a median prison term of 24 months.

"Reviving Rehabilitation as a Decarceral Tool"

The title of this post is the title of this new essay authored by Aliza Hochman Bloom now available via SSRN. Here is its abstract:

After advocates argued that circumstances attendant to late adolescent offenders make them less culpable for their offenses and better disposed for rehabilitation, the Massachusetts Supreme Judicial Court (SJC) held in January that it is unconstitutional to sentence 18 through 20 year olds to life without parole.  Last summer, Connecticut passed legislation providing a “second look” opportunity for parole to those incarcerated for lengthy prison sentences for crimes that they committed before they were twenty-one years old.  In 2021, Rhode Island decreased the amount of time that youthful offenders must serve before they become eligible for parole, but its highest court is currently interpreting disputed provisions.  Efforts to reduce lengthy sentences for late adolescents are grounded in scientific literature showing that “emerging adults” have great propensity for rehabilitation, rendering extraordinarily long prison sentences inappropriate.

Recently, national conversation has focused on reducing the front-end of incarceration, by shrinking police presence and decriminalizing drug and other nonviolent crimes.  Back-end decarceral efforts — so called “second look” sentencing and clemency initiatives — are either underappreciated or derided as reforms that legitimate a fundamentally unjust system.  While I embrace the need to significantly shrink the quantity of people in prison, sentencing reforms for emerging adults can meaningfully reduce our carceral footprint. Also, disproportionality by race in extreme sentencing suggests that late adolescents are particularly likely to be sentenced based on systemic racism and implicit biases in policing, prosecution, and sentencing, rather than unique characteristics or facts of their crimes.  Thus, effective “second look” efforts have the potential to address racial inequities.

This essay explores three state efforts to reduce the carceral terms of late adolescents, evaluating the advocacy strategies and compromises made to achieve meaningful reform. The Supreme Court recognizes that minors are less culpable, less deterrable, and more capable of rehabilitation than adults.  Significant research supports extending these findings to “emerging adults” — individuals under the age of twenty-five years old.  Should this rehabilitative lens, grounded in science, be effectively harnessed to the “back-end” reforms focused on those who commit crimes prior to the age of twenty-five, the potential decarceral effects can be widespread.  In the area of emerging adults and serious crime, criminal law minimalism means coupling the science about late adolescents with effective advocacy strategies to reduce our carceral population.

Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"

For a number of reasons, I always find white-collar sentencings to be fasciniating, and the scheduled sentencing next month of Sam Bankman-Fried is already fitting that characterization.  The latest development in the run-up to the March 28 sentencing comes in the form of SBF's lawyers submitting late yesterday this 90-page sentencing memo.  This document assails many aspects of how the probation office calculated the applicable guideline range and makes an array of arguments based on all the 3553(a) sentencing factors.  This lengthy document concludes with this paragraph that is titled "Sam Bankman-Fried's Sentencing Request":

Sam Bankman-Fried respectfully submits that, for the reasons set forth above, an appropriate method of arriving at a just sentence would be to consider the Adjusted Offense Level (Subtotal) of 56, reduced by 30 levels based on zero loss, which yields an advisory Guidelines range of 63-78 months.  When the § 3553(a) factors are considered, including Sam’s charitable works and demonstrated commitment to others, a sentence that returns Sam promptly to a productive role in society would be sufficient, but not greater than necessary, to comply with the purposes of sentencing.

Here are a variety of press accounts of this sentencing filing and some related SBF activity:

From Business Insider, "Sam Bankman-Fried's lawyer says sentencing the FTX founder to a 100-year prison term would be 'grotesque' and 'barbaric'"

From CoinPedia, "SBF Fights for Crypto Fraud Leniency: 6 Years vs. 110?"

From the New York Times, "Sam Bankman-Fried Makes His Last Stand: Since the disgraced crypto mogul was convicted of fraud, his supporters have maneuvered to secure a lenient sentence, with his lawyers recommending he serve no longer than 6.5 years in prison"

From the Wall Street Journal, "Sam Bankman-Fried Calls for Shorter Prison Sentence, Citing Autism: Lawyers for the FTX founder say he wasn’t motivated by greed but by a desire to better the world through philanthropic giving"

Prior related posts:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 

Detailing some of the impacts and possible echoes of Mass ruling precluding LWOP for those under 21

Last month, as noted in this past post, a split Massachusetts Supreme Judicial Court in Commonwealth v. Mattis, No. SJC-11693 (Mass. Jan. 11, 2024) (available here), ruled that article 26 of the Massachusetts Declaration of Rights precluded an LWOP sentence for offenses committed by persons under age 21.  This lengthy new Law360 piece, headlined "Mass. Ruling Seen As 'Sea Change' In Young Adult Sentencing," discusses the local and possible national impact of hte rule.  Here are excerpts:

[A]dvocates pushing to end sentences of life without parole for so-called emerging adults — those ages 18 through 20 — say they see a possible pathway to nationwide change following a recent ruling by the Massachusetts Supreme Judicial Court finding such sentences unconstitutional.

"This ruling is exceedingly important," [lawyer Jay] Blitzman said. "Obviously, in Massachusetts, where you have about 200 incarcerated individuals who now have the opportunity to have a parole hearing at least at some point in their life. But it is also incredibly significant in terms of the national landscape."...

[W]hile state high courts in Washington and Michigan have also recently ended the concept of mandatory life without parole for offenders under 21, those rulings, along with the U.S. Supreme Court's ruling in Miller, have still left the door open for judges to make a determination at the time of sentencing that a parole opportunity should not be granted. "What Massachusetts did went beyond all that," Blitzman said. "It pushed the envelope."...

Advocates for abolishing life without parole for juveniles argue that recent scientific studies have shown that certain brain functions are not fully developed by the age of 18 and that the age of "peak offending" is around 19 to 20 years old. The brain tends to be fully matured and developed by around age 25, according to the National Institute of Mental Health. Committing crimes — even violent ones — at that age is not necessarily indicative of a person who will continue to break the law the rest of their life, advocates and researchers say....

Robert Kinscherff, the executive director of the Center for Law, Brain and Behavior at Massachusetts General Hospital, told Law360 that most 16-year-olds are in a good position cognitively to offer medically informed consent, make reproductive decisions or participate in their own defense at trial. However, the situation changes under "hot cognition," Kinscherff said. "They remain more impulsive, more reckless, less likely to consider options and more likely to respond to the immediacy of perceived rewards rather than to take a long-term view," he said. "And they remain vulnerable to peer influence, especially if they are in the physical presence of peers."...

In the weeks since the Mattis decision, Kinscherff says he has heard from attorneys and advocates around the country who are trying to figure out how to incorporate the landmark ruling and the underlying arguments into their own advocacy....

Martin Healey, chief legal counsel and chief operating officer for the Massachusetts Bar Association, called the Mattis ruling a "sea change."... "I definitely think it is going to have a wide, sweeping effect," Healey said. "It's going to happen incrementally, but surely it will occur, and I think you'll see various states react to it, some soon and others following suit as the years go on."

Prior related posts:

• Split Massachusetts top court rules "life without parole for emerging adults" violates state constitution
• Detailing what follows historic Massachusetts ruling on life sentences for young adults 

"The role of character-based personal mitigation in sentencing judgments"

The title of this post is the title of this new article authored by Ian Belton and Mandeep Dhami recently published in the latest issue of the Journal of Empirical Legal Studies.  Here is its abstract:

Personal mitigating factors (PMFs) such as good character, remorse and addressing addiction help sentencers evaluate an offender's past, present and future behavior.  We analyzed data from the 2011–2014 Crown Court Sentencing Surveys in England and Wales to examine the relationship between these PMFs and custodial sentences passed on assault and burglary offenses, controlling for other sentencing relevant factors.  Beyond revealing the distribution and co-occurrence of the three PMFs, it was found that good character, remorse and addressing addiction all had a significant mitigating effect.  The effects of addressing addiction were the strongest of the three across both offense types, while good character had a stronger effect on burglary than assault.  In addition, some mitigating factors appear to be underweighted when they occur together.  We consider the implications of these findings for sentencing policy and practice.

"Rethinking Children, Crime and Culpability"

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

In the early twenty-first century, the United States Supreme Court developed a rich body of case law that recognized the constitutionally significant differences between children and adults.  The core of this case law, often referred to as the Miller trilogy, banned capital punishment for juvenile crimes and significantly limited instances when states can impose life without parole on minors.  By leveraging the logic and science of the Miller trilogy, lower courts and state actors have implemented juvenile justice reforms on issues ranging from legal representation and transfer laws to conditions of confinement and parole practices.  This Article makes a novel and important argument that flows from the Miller trilogy but that has been under-theorized to date.  Specifically, in this Paper I argue that all of the ways in which children are different according to the Court -- their immaturity, their impulsivity and their inability to remove themselves from criminogenic environments -- are relevant to a criminal conviction just as much as they are relevant to punishment. 

The Paper proceeds in four Parts.  Part I discusses Miller’s legacy and its already vast implications nationwide. Parts II and III are the heart of the Paper, where I set forth my central claim: that Miller’s legacy demands nothing short of a wholesale reconsideration of substantive criminal law as applied to children.  Part II articulates the first principles of this theory in the context of the state’s burden to prove the elements of a crime, while Part III theorizes how defendants may leverage the defining features of youth when mounting affirmative defenses.  Part IV addresses likely conceptual and implementation-related concerns, and by way of Conclusion, I suggest that rethinking children’s culpability, rather than tinkering with their sentences, may be the most important and lasting legacy of the Miller trilogy.

Noting the first beneficiaries of Minnesota’s felony murder reforms

A helpful reader made sure I did not miss this effective review of the recent sentencing consequences of Minnesota's recent reforms of its felony murder laws.  Here are part of the story and some context:

Two women convicted in connection with a 2017 home invasion murder were released from prison last week because of a change in state law. Megan Christine Cater, 25, of Lakeville and Briana Marie Martinson, 27, of Prior Lake are the first people to be released from custody after legislators overhauled Minnesota’s felony murder statute.

While the two admitted taking part in the burglary of Corey Elder’s apartment, a judge found that they did not share responsibility for his murder....

Cater and Martinson were not in the bedroom with [Maurice] Verser when he fired the fatal shot. But in a deal with prosecutors, the women pleaded guilty to aiding and abetting second-degree unintentional murder. In 2018, Judge Kerry Meyer sentenced them to 13.5 years each. Then in 2023, lawmakers in the DFL-led Minnesota Legislature put new restrictions around the state’s felony murder statute. Under the old law, prosecutors could charge a person with aiding and abetting murder during the commission of an underlying felony no matter their role in that felony.

Mary Moriarty, a longtime public defender who was elected Hennepin County Attorney in 2022, supports the change. “It is not fair when two people get charged with murder when one of them pulled the trigger and the other one had no idea this was going to happen,” Moriarty said. “Certainly both people have to be held accountable, but they should be held accountable for what they actually do.”

Moriarty noted that under the old felony murder law, a killer who signs a plea deal could wind up with a shorter sentence than his accomplice who drove the getaway car and is convicted at trial.

The revised statute limits felony murder prosecutions to people who caused the victim’s death, intended to cause it, or were major participants in the underlying crime. Legislators made the changes retroactive. That allowed Cater and Martinson to petition the court to vacate their murder convictions. Last week, Judge Meyer resentenced Martinson and Cater to 57 and 69 months respectively for burglary with a firearm. Because they’d already served that time, the two left prison....

In an email to MPR News, Cater’s attorney and University of Minnesota law professor JaneAnne Murray said that Minnesota’s old felony murder law has resulted in sentences for too many defendants that are disproportionate to their culpability. “Our client was only 19 at the time of her offense, and she did not intend or participate in a murder,” Murray wrote. “It is right and just that she, and many similarly-situated to her, get punished for what they did, and not for the conduct of others.”

Bobbie Elder, Corey Elder’s mother, countered that the women were major participants in the burglary and their felony murder convictions should stand, even under the new law. “Megan Cater and Briana Martinson were the masterminds behind this entire thing,” Elder told MPR News. “They were the planners of it. They were the ones who ensured that there was a gun on scene. If all they wanted to do was rob somebody, they wouldn’t have had to go to the extremes of planning what they did....”

Last month Meyer rejected Tarrance Murphy’s bid for a sentence reduction after determining that he was a major participant in the robbery and admitted pointing the gun at Townsend.

Long-standing complaints about felony-murder laws among academics and many others typically focus on the failure of such laws to match offense levels and sentencing outcomes to true culpability, especially in situations in which a defedant has little or no culpable mens rea with respect to someone else's killing.  But, as the comments by the mother of the victim here highlights, judgments about culpability can often be highly contested.  This story suggests that the new Minnesota law give judges consideable discretion to assess culpability in this context (though that has to be challenging to do many years after an offense).

You be the sentencing judge: what sentence for Jennifer Crumbley after manslaughter convictions based on her son's mass school shooting?

I high-profile state homicide trial concluded this afternoon in Michigan with guilty verdicts from the jury for Jennifer Crumbley, mother of school shooter Ethan Crumbley.  This lengthy CNN article, headlined "Jennifer Crumbley, mother of school shooter, found guilty of manslaughter in test of who’s responsible for a mass shooting," provide a lot of details and context surrounding the trial.  But I am already eager to turn to the sentencing, and this local article provides these particulars:

The mother of the Oxford High School shooter could receive a prison sentence lasting anywhere from a few years to decades after being convicted Tuesday of four counts of involuntary manslaughter. After seven days of witness testimony and nearly two days of deliberations, jurors found Jennifer Crumbley guilty of involuntary manslaughter for her role in the Nov. 30, 2021, shooting that left four children dead and seven people injured. Both Crumbley and her husband were charged with four counts, and are standing trial separately.

By declaring the Oxford shooter’s mother guilty, jurors had to agree that the prosecution proved at least one of two theories: that involuntary manslaughter resulted from Crumbley’s failure to perform a legal duty, or that she committed involuntary manslaughter because she was grossly negligent. Jurors did not have to agree on which theory, so long as they all believed at least one was proven beyond a reasonable doubt.

The Oxford shooter’s mother is scheduled to be sentenced on April 9 in Oakland County. The actual sentence she’ll receive, however, is unknown. For an involuntary manslaughter conviction in Michigan, the punishment is up to 15 years in prison and/or a fine of up to $7,500.

Because Crumbley was convicted of four counts of involuntary manslaughter, it is possible she could be sentenced to a maximum of 60 years in prison if the judge decides to hand down the maximum sentence -- and if the judge decides to make those sentences consecutive. Some experts believe this sentence would be harsh under the circumstances....

Oakland County Judge Cheryl Matthews could decide to hand down the maximum sentence of 15 years for each count, but order them to run concurrently, so the max would still be 15 years.... The decision is ultimately up to the judge, and any guess as to a sentence would be solely speculative. In Michigan, the average sentencing for involuntary manslaughter is about 5-7 years per death, according to research done by Michigan defense law firm Barone.

So, dear readers, any early thoughts on a sound sentencing outcome in this notable case?