Sentencing Law and Policy

"Mandatory Sentences as Strict Liability"

The title of this post is the title of this new paper authored by William W. Berry III now available via SSRN.  Here is its abstract:

Strict liability crimes — crimes that do not require a criminal intent — are outliers in the world of criminal law. Disregarding criminal intent risks treating the blameworthy the same as the blameless.

In a different galaxy far, far away, mandatory sentences — sentences automatically imposed upon a criminal conviction — are unconstitutional in certain contexts for the exact same reason.  Mandatory death sentences risk treating those who do not deserve death the same as those that might.

Two completely separate contexts, two parallel rules of law.  Yet courts and commentators have failed to see the similarities between these two worlds, leaving an analytical black hole.  Indeed, equity in criminal sentencing may depend upon recognizing the connections between these parallel universes.

This Article aims to fill this analytic gap, proposing a rethinking of mandatory sentences in light of the way criminal law treats strict liability crimes.  Specifically, the Article argues that courts should re-conceptualize mandatory sentences as a type of strict liability.  To that end, it proposes a series of possible statutory and constitutional limits on mandatory sentences.

"To Hemp in a Hand-basket: The Meaning of 'Controlled Substance' Under the Career Offender Enhancement"

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

Sentencing enhancements can drastically impact prison sentences for people convicted of federal crimes.  The career offender enhancement is particularly harmful to a federal criminal defendant because it automatically raises their minimum offense level and criminal history score under the U.S. Sentencing Guidelines, which, although no longer mandatory, are almost always followed by judges in determining actual prison sentences.  Since 2016, the career offender enhancement has been applied to almost 8,000 criminal defendants who, at the time of their convictions, had accrued a total of two or more predicate felony convictions, for either a drug offense or a crime of violence enumerated in the Guidelines.

Yet an active circuit split over the definition of a “controlled substance” means that defendants with identical criminal histories could face drastically different guideline sentences.  Because the Supreme Court’s categorical approach in Taylor v. United States prohibits the use of “overbroad” predicate convictions for sentencing enhancement purposes, the definition of “controlled substance” is consequential -- a state statute criminalizing a broader set of conduct than applicable federal law cannot trigger the career offender enhancement.

Four circuits (the Fourth, Seventh, Eighth, and Tenth) have held that “controlled substances” are defined by applicable state law, sidestepping the categorical approach.  In those circuits, a prior conviction for marijuana that includes hemp -- now legal federally and in many states -- can serve as a predicate offense for the career offender enhancement. Four other circuits (the First, Second, Fifth, and Ninth) have held that “controlled substances” are defined by the Controlled Substances Act (CSA).  In these circuits, overbroad marijuana convictions cannot serve as predicate offenses under the categorical approach because the CSA currently legalizes hemp, while most state statutes before 2018 included hemp as a possible basis for conviction.  As a result, criminal defendants in these circuits are spared many years on their prison sentences by avoiding a career offender classification.

This Note argues that the Supreme Court should adopt the latter approach and hold that the CSA defines controlled substance offenses.  This recommendation is grounded in analysis of the career offender enhancement’s text, context, purpose, and history.

Sentencing scheduled for morning after jury convicts Alex Murdaugh of murdering his wife and son ... UPDATE: Life sentences imposed

For whatever reasons, I have not been enthralled by the Murdaugh saga and trial in South Carolina.  But, after a swift set of guilty verdicts from the jury tonight, I am intrigued to see the sentencing unfold.  But, this AP article details, it seems that sentencing will unfold Friday morning:

Disgraced South Carolina attorney Alex Murdaugh was convicted of murder Thursday in the shooting deaths of his wife and son in a case that chronicled the unraveling of a powerful Southern family with tales of privilege, greed and addiction.

The jury deliberated for less than three hours before finding Murdaugh guilty of two counts of murder at the end of a six-week trial that pulled back the curtain on the once-prominent lawyer’s fall from grace.

Murdaugh, 54, faces 30 years to life in prison without parole for each murder charge when court is scheduled to reconvene for sentencing at 9:30 a.m. Friday.

I saw another press piece indicating that prosecutors will be seeking LWOP sentences. Given that Murdaugh is 54 years old, the 30-year minimum that is applicable is almost a functional life term.

Any predictions?

UPDATE:  As reported in this local article, headlined "Judge sentences Alex Murdaugh to 2 consecutive life sentences for the murders of his wife and son," apparently Murdaugh will not get out of prison even if he comes back to life after he dies while serving the first of his life sentence.  I am not quite sure how to otherwise understand the concept of "consecutive" life sentences, but maybe there is something notable in South Carolina sentencing law that makes it sensible to impose multiple life sentences consecutively.

An interesting (and dubitante) SCOTUS argument in Dubin

I flagged in this post from last November the Supreme Court's cert grant in Dubin v. United States, which concerns the reach of the federal criminal law that adds a mandatory two-year prison term for using another person’s identity in the process of committing another crime.  That statute, 18 U.S.C. § 1028A, is titled "Aggravated identity theft," but the statutory language would seem to cover a whole lot more conduct than what most think of as identify theft.  In fact, the government seem to be claiming that waiter who adds for himself an unauthorized $1 tip when swiping a patron's credit card would be guilty of credit card fraud and an additional two-year mandatory prison term under § 1028A.  

This matter was argued before the Supreme Court yesterday and the lengthy argument had all sorts of interesting elements.  (The transcript, running over 100 pages, is available here; the audio is available here.)  As detailed in the pieces linked below, it seems nearly all the Justices believe there have to be some limiting principles for application of this statute.  But while the Justices seem to generally doubt the government's broad statutory reading, it is unclear what part of the statutory text may provide real limits and on what terms.  Stay tuned:

From Bloomberg Law, "Justices Appear Ready to Limit Breadth of Identity Theft Law"

From the New York Times, "Supreme Court Seems Skeptical of Broad Sweep of Identity Theft Law"

From SCOTUSblog, "Justices lean toward narrow reading of aggravated identity theft"

From Security Boulevard, "Supreme Court: Does BIlling Fraud Violate Federal ID Theft Statutes?"

Notable 5-4 SCOTUS split in ruling to limit civil penalties of Bank Secrecy Act

Certain types of Supreme Court cases involve issues that can make it relatively easy to predict how nearly every Supreme Court Justice will vote.  But so-called "white-collar" cases are often not the predictable type, and today's Supreme Court ruling in Bittner v. United States, No. 21-1195 (Feb. 28, 2023) (available here), is a notable example of this reality.  The case involved the proper accounting for civil penalties for non-willful violations of the Bank Secrecy Act, and the individual prevails against the federal government through this notable voting pattern: 

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C. JACKSON, J., joined that opinion in full, and ROBERTS, C. J., and ALITO and KAVANAUGH, JJ., joined except for Part II–C. BARRETT, J., filed a dissenting opinion, in which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined.

Criminal justice fans should be a bit disappointed by the decision by three Justices to not join Part II-C of Justice Gorsuch's opinion. That section has these notable things to say about the rule of lenity:

Under the rule of lenity, this Court has long held, statutes imposing penalties are to be “construed strictly” against the government and in favor of individuals.  Commissioner v. Acker, 361 U.S. 87, 91 (1959)....

The rule of lenity is not shackled to the Internal Revenue Code or any other chapter of federal statutory law. Instead, as Acker acknowledged, “[t]he law is settled that penal statutes are to be construed strictly,” and an individual “is not to be subjected to a penalty unless the words of the statute plainly impose it.” 361 U. S., at 91 (internal quotation marks omitted and emphasis added).  Notably, too, Acker cited to and relied on cases applying this same principle to penalty provisions under a wide array of statutes, including the Communications Act of 1934, a bankruptcy law, and the National Banking Act.  See ibid....

[T]he rule exists in part to protect the Due Process Clause’s promise that “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle v. United States, 283 U.S. 25, 27 (1931).

If this section of the Bittner opinion carried the Court, I suspect this case might end up cited in more than a few criminal statutory interpretation cases. Maybe it still will be, but I suspect this ruling will end up of more interest to bankers than to criminal lawyers.

"Defining the Victim in the Law of Homicide"

The title of this post is the title of this new book chapter now available via SSRN authored by Stefanie Bock and Stuart P. Green. Here is its abstract:

This chapter focuses on five main issues related to the question of who or what can be a “victim” of homicide.  We argue as follows:

First, that homicide law should protect all living members of the human species regardless of their individual characteristics, abilities, achievements, or social status; though we recognize that, as technology and social norms continue to develop, this anthropocentric approach of homicide offences should potentially be supplemented by specialized norms providing for the adequate protection of animals and artificially intelligent beings. 

Second, that differentiations in grading or sentencing based on the age, gender, or occupation of the victim are unwarranted.

Third, that homicide law should be limited to cases in which the victim has been born at the time the death-causing injury was inflicted and that other cases, involving fetuses that are injured by hostile third parties and then die (whether in utero or after birth) should be prosecuted, if at all, under the separate rubric of “feticide.”

Fourth, that homicide law should be concerned exclusively with the killing of “others,” as opposed to “self” and that suicide therefore should not be a criminal offence; though we concede that where there is a risk that a person is being pressured to commit suicide or is doing so in error, it may be appropriate to prosecute for assistance to, or incitement of, suicide or indirect perpetration of homicide.

Fifth, that in determining whether a victim should be regarded as “already dead” and therefore beyond the scope of homicide law, we should apply a set of criteria that is consistent with that applied in determining the beginning of life (viz, the irreversible cessation of brain stem function or the irreversible cessation of circulatory and respiratory function).

Buffalo mass shooter formally sentenced to LWOP in New York state court

Though New York in 1995 brought back the state's death penalty legislatively,  New York's highest court in June 2004 decided that the state's death penalty statute violated the New York Constitution.  Consequently, the harshest sentence that a mass killer in New York can get under state law is life without parole, and this New York Times piece reports on just such a high-profile sentencing today in Buffalo. Here are some details:

The gunman in a racist massacre at a Buffalo supermarket last year was sentenced to life in prison without the chance of parole on Wednesday, after apologizing for his attack amid a torrent of raw emotions from the victims’ families, including one man who lunged at him in court.

“You will never see the light of day as a free man again,” the judge, Susan Eagan, said after reading a statement about the harmful effects of institutional racism and white supremacy, calling it an “insidious cancer on our society and nation.”

The sentence reflected the outcome of a guilty plea to 10 counts of first-degree murder and a single count of domestic terrorism motivated by hate, which carries a penalty of life imprisonment without parole.  Judge Eagan’s sentence came after a brief apology by the gunman, Payton Gendron, who said he was “very sorry” for the attack and blamed online content for the shooting rampage on May 14, in which 10 people were killed, all of them Black, and three people injured. He said he didn’t want to inspire other racist killings....

As Mr. Gendron spoke, a member of the audience began screaming and cursing at him, the second such interruption in an emotionally raw hearing. Earlier, the sentencing was dramatically interrupted and the courtroom cleared after a man lunged at the defendant.  Judge Eagan emptied the courtroom and reconvened the hearing a short time later, pleading for decorum while saying she understood the anger toward the gunman. “We are all better than that,” she said. Before Mr. Gendron heard his sentence, families of the victims testified as to the insurmountable damage done by the attack.

“You are a cowardly racist,” said Simone Crawley, whose grandmother Ruth Whitfield, 86, was killed in the shooting. She asked for accountability for others who aided or turned a blind eye to Mr. Gendron’s growing radicalization....

Zeneta Everhart, whose son Zaire was injured, but survived, said: “The world says you have to forgive in order to move on.  But I stand before you today to say that will never happen.”

Kimberly Salter’s husband, Aaron Salter, a retired Buffalo police officer, did not survive: He was shot and killed in the attack.  Ms. Salter quoted the Bible as she stood just feet from Mr. Gendron, who wore an orange jumpsuit and spectacles. “You will reap,” she said, “what you sow.”...

Mr. Gendron, 19, pleaded guilty in November to the state charges.  He is also charged with federal hate crimes and weapons violations, some of which could carry the death penalty if the Justice Department decided to seek it.  Those charges are still pending....

His video feed of the attack was briefly online, before being shut down by social media companies.  Still, the Buffalo attack remains one of the nation’s deadliest racist shootings, joining a list that includes the killing of nine Black parishioners at a church in Charleston, S.C., in 2015; an antisemitic rampage in Pittsburgh, at the Tree of Life synagogue in 2018 where 11 people were killed; and an attack at a Walmart in El Paso in 2019 in which more than 20 people were killed by a man who had expressed hatred of Latinos.

"Rape as Indignity"

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

Rape law has a consent problem.  The topic of sexual consent predominates any discussion of rape law, both doctrinally and socially.  It is now widely taken as axiomatic that non-consensual sex is paradigmatic of rape.  But consent is in fact a deeply contested concept, as recent debates over affirmative consent have demonstrated. Grounding rape law in sexual non-consent has also proven both over- and under-inclusive, too often leaving the law inadequate to vindicate some sexual harms and distorted in attempts to reach others.  Increasingly, the very concept of consent is being questioned by scholars, who desire a rape law that more accurately reflects the lived experience of both victims and perpetrators. Consent is even potentially dangerous.  The structure of consent reinforces problematic gender roles in sexual relations and fuels troubling narratives that have led to widespread violence against women.

This Article proposes a novel grounding for rape law — not as a matter of consent, but as a matter of human dignity. Human dignity has been perhaps the premier value in both political and moral thought over the past two centuries. As the Article documents, dignity’s relatively straightforward moral imperative — respect for persons — has a long tradition of being operationalized legally, making it ripe for use as the basis of a criminal prohibition.  Building upon both federal and state efforts to combat the indignities of sex trafficking, the Article outlines a proposed framework for punishing as rape the infliction of indignity through certain means of compelling sex, namely force, fraud, and coercion. Centering human dignity, rather than consent, would more closely align rape law with the fundamental tenets of criminal law theory and has the potential to disrupt gendered social scripts that increasingly animate violence.  In a time of mass incarceration, recognizing rape as indignity would also set the stage for a much-needed shift toward restorative justice and incarceration alternatives.

For those concerned about over-criminalization, the "Case for Legalizing Jaywalking"

I was not aware of the history of the term jaywalking or of the laws criminalizing this behavior.  Thus, I found interesting this new Mother Jones piece fully headlined "The Case for Legalizing Jaywalking: Bans hurt poor people and people of color.  Cities and states are catching on."  I recommend the full piece, but here is a snippet (with links from the original):

If you regularly walk in any American city, you, too, probably have crossed a street against the signal or outside of a designated crosswalk.  Sure, one could argue that crosswalks were created as a way to protect pedestrians from potentially dangerous automobiles.  But why would transgressing those limits become a petty crime?  Thanks to a century-old automobile industry campaign to push pedestrians out of the streets, jaywalking is now, in most places, punishable by a hefty ticket ranging from $68 in Seattle to as much as $250 in New York City.

This could be consigned to the realm of being merely annoying, but in fact, there’s a serious injustice embedded in the process.  According to research in several cities, policing pedestrian behavior disproportionately affects low-income people and people of color.  Plus, making jaywalking an offense doesn’t keep people safe.  Now, a growing number of cities and states are striking these antiquated statutes from their books....

[D]ata from cities across the country show that Black people are routinely cited for jaywalking at higher rates than white people, making their simple act of crossing the street grounds for potentially dangerous police interactions.  In 2017, a sweeping investigation by ProPublica and the Florida Times-Union (republished with permission on Mother Jones) found that Black people received 55 percent of pedestrian tickets in Jacksonville, despite comprising just 29 percent of the city’s population.  Those tickets were also overwhelmingly focused on residents of poor neighborhoods.

The Jacksonville sheriff’s office admitted that enforcement of rules against crossing on a yellow light, crossing outside the crosswalk, or “failing to cross a street at a right angle” were often an excuse to “stop suspicious people and question them for guns and or drugs.”  Critics of jaywalking laws say that that’s part of the problem. 

Though not mentioned in this piece, I could not help but keep thinking of the emerging debate in Second Amendment jurisprudence related to government claims that "nonlawabiding" people are to be excluded from the protections of the Second Amendment.  I doubt many folks would really think the "crime" of jaywalking should lead to losing some protections of the Bill of Rights, but even that possibility is why concerns regarding over-criminalization can often connect to other kinds of concerns about state power and individual rights.

"Climate Homicide: Prosecuting Big Oil For Climate Deaths"

The title of this post is the title of this notable new article now available via SSRN authored by David Arkush and Donald Braman. Here is its abstract:

Prosecutors regularly bring homicide charges against individuals and corporations whose reckless or negligent acts or omissions cause unintentional deaths, as well as those whose misdemeanors or felonies cause unintentional deaths. Fossil fuel companies learned decades ago that what they produced, marketed, and sold would generate “globally catastrophic” climate change.  Rather than alert the public and curtail their operations, they worked to deceive the public about these harms and to prevent regulation of their lethal conduct.  They funded efforts to call sound science into doubt and to confuse their shareholders, consumers, and regulators.  And they poured money into political campaigns to elect or install judges, legislators, and executive officials hostile to any litigation, regulation, or competition that might limit their profits.  Today, the climate change that they forecast has already killed thousands of people in the United States, and it is expected to become increasingly lethal for the foreseeable future.

Given the extreme lethality of the conduct and the awareness of the catastrophic risk on the part of fossil fuel companies, should they be charged with homicide?  Could they be convicted?  In answering these questions, this Article makes several contributions to our understanding of criminal law and the role it could play in combating crimes committed at a massive scale.  It describes the doctrinal and social predicates of homicide prosecutions where corporate conduct endangers much or all of the public.  It also identifies important advantages of homicide prosecutions relative to civil and regulatory remedies, and it details how and why prosecution for homicide may be the most effective legal remedy available in cases like this.  Finally, it argues that, if our criminal legal system cannot focus more intently on climate crimes — and soon — we may leave future generations with significantly less for the law to protect.

Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order

A Fifth Circuit panel handed down today another big post-Bruen ruling declaring that the Second Amendment renders unconstitutional a federal prohibition on firearm possession for certain disfavored individuals.  The ruling today in US v. Rahimi, No. 21-11001 (5th Cir. Feb. 2, 2023) (available here), gets started this way:

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal.  The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution.  In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

Zackey Rahimi levies a facial challenge to § 922(g)(8). The district court and a prior panel upheld the statute, applying this court’s pre-Bruen precedent. See United States v. Rahimi, No. 21-11011, 2022 WL 2070392 at *1 n.1 (5th Cir. June 8, 2022).  Rahimi filed a petition for rehearing en banc; while the petition was pending, the Supreme Court decided Bruen.  The prior panel withdrew its opinion and requested supplemental briefing on the impact of that case on this one.  Considering the issue afresh, we conclude that Bruen requires us to re-evaluate our Second Amendment jurisprudence and that under Bruen, § 922(g)(8) fails to pass constitutional muster. We therefore reverse the district court’s ruling to the contrary and vacate Rahimi’s conviction.

Here are a few of many notable passages from the opinion:

Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people — however expediently defined — from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the Second Amendment’s protections; to the contrary, the Supreme Court has made clear that “the Second Amendment right is exercised individually and belongs to all Americans,” Heller, 554 U.S. at 581.  Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal....

The Government fails to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation.  The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id.  As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

UPDATE: This AP article about the Rahimi ruling provides a bit more context concerning the decision and also includes an official reaction from US Attorney General:

The U.S. Justice Department Thursday night issued the following statement from Attorney General Merrick B. Garland following the decision: “Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm.  Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional.  Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”

Seeking "further review," I suspect, will involve the Department of Justice first requesting en banc consideration of this panel decision in the Fifth Circuit.  If that does not happen, I would expect DOJ would then seek Supreme Court review.  Interestingly, were SCOTUS to take up this case (or any similar ones) anytime in 2023, we could reasonably expect another major Second Amendment ruling in the run up to the 2024 election.

"Circumventing Mandatory Minimum Sentences Through Legal Representation – An Integrated Methods Study of Drunk Driving Violations"

The title of this post is the title of this notable new article now available via SSRN authored by Jonathan Hasson and Abraham Tennenbaum.  Here is its abstract:

Most common law nations impose minimum sentences for drunk driving.  Israel introduced a mandatory minimum law in 1995 requiring a two–year license disqualification regardless of intoxication level.  In theory, the new law allows minimal room for deviation. In practice, however, our study demonstrates that the law in action has diverged significantly from “blackletter law.”  Through an integrated historical, quantitative, and qualitative analysis that follows the law from its inception to the present day, we explore the root causes of this deviation and the mechanisms of circumvention.

Based on quantitative data collected on drunk driving cases between 2008 and 2022 and a survey of professionals specializing in traffic law, we highlight how the law’s perceived harshness has contributed to plea bargains becoming the normative means of circumventing the law.  This circumvention undermines the law’s original intention, that is, uniformity, proportionality, and equity in sentencing.  Multiple variables including appearances in court, legal representation, jurisdiction, and the judge’s identity result in comparably guilty defendants receiving different sentences.  Given these disparities, we propose replacing the current minimum sentence with a graduated minimum based on intoxication levels; limiting prosecutorial and judicial discretion; and providing court date reminders and public counsel to minimize harm to vulnerable populations.

"Criminal Proof: Fixed or Flexible?"

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

Should we use the same standard of proof to adjudicate guilt for murder and petty theft?  Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law.  This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes.  I reject consequentialist arguments for a radically flexible standard of proof, instead defending a modestly flexible approach on non-consequentialist grounds.  The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments.  This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society.

Sad accounting of 150-year prison term for child-porn possession after 3-year plea deal had been offered

The Miami Herald has this extended and sad review of an 150-year state sentence imposed on a person with schizophrenia who possessed child pornography.  The case provide an example of the "trial penalty" and all sort of other factors that can contribute to extreme prison terms.  The piece is headlined "‘Extreme injustice’: Homeless man with untreated schizophrenia fights 150-year sentence."  I recommended the lengthy article in full and here are excerpts:

The crime that Jared Stephens committed is not in dispute.  The question is whether he should die in prison for it.

On a stormy September day in 2016, Stephens — a former wrestler at Arizona State University who became homeless after years of untreated schizophrenia — walked into a Best Buy in Sweetwater.  He snatched a $399.99 laptop, stuffed other merchandise totaling $157.96 into a brown Publix tote bag and tried to walk out without paying.

Confronted by employees, he resisted, then pulled his own laptop out of a backpack and did something extraordinarily irrational. “Look, I have child pornography!” he declared.  He was telling the truth. Stephens, then 25, marched in and out of the store with his laptop playing a video of child abuse, tilting his computer screen so it was visible to a surveillance camera, according to an arrest report.  He proceeded to lie down between two sets of sliding doors at the store’s entrance, perusing illicit images as shoppers flowed by, until police arrived and hauled him to jail.

That unhinged act sent Stephens on an odyssey through the criminal justice system, resulting in a sentence that has no parallel in local courts for a similar crime: 150 years in state prison — to be followed by a 120-day stint in the Miami-Dade County jail.  The sentence — handed down by Miami-Dade Circuit Court Judge Veronica Diaz in 2018, with a minimum of public explanation — was 147 years longer than the three-year term state prosecutors initially proposed in a plea deal and 129 years longer than the 21-year term the state asked for at sentencing.  It was also dozens of times greater than the typical sentence for possession of child pornography....

Stephens ... made outlandish claims in open court at his criminal trial, asserting he could command African armies and shut off electricity to Russia with the power of his mind.  He largely refused to talk to his lawyers, much less cooperate in his defense. Court-appointed psychologists diagnosed him with schizophrenia... He had also suffered his own shocking trauma as a child — a fact that went unmentioned at his sentencing because he never told his defense lawyers.  Fan Li, a private attorney now representing Stephens, said that courts are ill-equipped to handle people experiencing mental illness, leading to widespread “unjust prosecutions and sentences.”...

Stephens’ presumptive release date is July 4 — Independence Day — 2166, when he would be 175. He did not produce or distribute the illegal images, which would typically lead to a longer sentence.... Had he gone along with the state and accepted a plea deal when it was originally offered, he could have gotten just three years in prison, as well as treatment in a program for “mentally disordered sex offenders.”  That sentence would have been in line with those given to other, similar offenders, according to court documents submitted by his lawyers.

Instead, he chose to fight the case.  State prosecutors responded by upping the charges from one count of child porn possession — with a maximum of five years in prison — to 30 counts, with a maximum of 150 years, based on a forensic analysis that found a cache of illegal images on his computer.

Between 2000 and 2017, Miami-Dade judges decided that nearly one-third of defendants who, like Stephens, possessed child porn — without producing it or passing it around to others — should not be sent to prison, according to data from the Florida Department of Corrections.  Those sent to prison received a median term of three years, according to the data, which was submitted in a court filing by Stephens’ defense team.  Only one other local case resulted in such a lengthy sentence: Adonis Losada, a former performer on the longtime Univision show “Sabado Gigante,” received a 153-year term.  The trial for Losada was later ordered redone, resulting in a sentence slashed by two-thirds.

Warranted or unwarranted disparity?: noting different punishments for disrupting different government branches

This lengthy new NBC News piece shines a spotlight on the notable, but arguably justified, disparity between how disruptive protesters at Congress and at the Supreme Court are punished.  The full headline for the piece highlights its essentials: "Protesting against Congress may get you a $50 fine. Disrupting the Supreme Court is a different story. Protesters disrupting oral arguments can face at least a night in jail and a criminal conviction."  Here are some excerpts:

When Emily Paterson was arrested for protesting abortion law changes during a Supreme Court hearing in November, she spent the night in jail and now has a criminal conviction on her record. Across the street, Jack Murphy met a different fate when she did something similar in the Senate chamber three years earlier: She paid a $50 fine and was released a few hours later.

Such is the differing nature of punishment for nonviolent protesters during official proceedings in Washington, with the Supreme Court, which has its own police department, viewed as being tougher than the Capitol Police, which has jurisdiction over the Capitol and its surrounding campus, which borders the Supreme Court building.

It’s a sore point for Mark Goldstone, a lawyer who regularly represents Washington protesters. Supreme Court protesters are treated “more harshly” in a couple of different ways, he said, referring only to those participating in nonviolent protests and not violent attacks like the Jan. 6 assault on the Capitol. On Capitol grounds, the police “process you and release you,” Goldstone said, while at the Supreme Court, “you are going to spend the night in jail" and likely face prosecution....

Those familiar with Washington protests point to some possible reasons protesters are treated differently.  One is that the Capitol Police has a lot more protesters to deal with, sometimes needing to process hundreds of people quickly.  In contrast, although protests outside the Supreme Court building are common, it is relatively unusual for people to disrupt court proceedings inside the courtroom.

There are also inherent differences between the two institutions.  Congress is where democratically elected representatives meet and a place where members of the public have a right to express their views.  The high court, meanwhile, is not directly accountable to the people and likes to see itself as nonpolitical.  As such, there may be a desire to crack down on protesters to help maintain that image.  The respective police departments have different legal powers too, which could affect how they resolve cases.

As I see it, protesters who disrupt SCOTUS oral arguments are generally likely to be a lot more disruptive to the functioning of SCOTUS, and be more harmful and disrepectful to the lawyers who have prepared for months for 30 minutes of time to represent their clients before the Justice, than protesters in Congress.  Of course, as the events of January 6, 2021 should remind us, some protesters can be very disruptive of the work on Congress.  But the practicalities of the functioning of different branches, not some notion of political "image," seems to me to make the disparity here more warranted than unwarranted.  But perhaps others have distinct views.

The look of a federal capital moratorium(?): prosecutors not seeking death penalty for El Paso Walmart shooter

As detailed in this Wall Street Journal piece, the "Justice Department won’t seek the death penalty for the man accused of killing 23 people in 2019 at a Walmart in El Paso, Texas, federal prosecutors said in a Tuesday court filing."  Here is more:

Patrick Crusius faces 90 federal charges for his alleged role in one of the deadliest mass shootings in U.S. history.  Of those charges, 45 have been deemed hate crimes, or crimes motivated by racial, religious, national-origin, sexual, gender or disability bias. Mr. Crusius, 21 years old at the time, is accused of traveling to the Texas border city to target Latinos in the attack. Nearly two dozen people were injured in the shooting.

Jury selection is expected to begin in his federal case in January 2024.  Mr. Crusius, now 24, was also indicted on state charges of capital murder and could face the death penalty if convicted. The state case would proceed after the federal case is done....

Months after taking office in 2021, Attorney General Merrick Garland ordered a nationwide halt to federal executions while he reviewed policies and protocols put in place by the Trump administration that led to the highest rate of federal executions in more than a century.  President Biden has said he would work to end federal executions.

The Justice Department last year chose to continue the pursuit of the death penalty against an alleged terrorist charged with killing eight people in New York City in 2017.  The Trump administration initially sought the death penalty against Sayfullo Saipov, who prosecutors said was inspired by Islamic State to carry out the Manhattan attack. Mr. Saipov’s attorneys asked Mr. Garland to withdraw the death penalty from the case but were turned down.

Justin Underwood, an attorney representing the family of Walmart shooting victim Alexander Hoffman, said they were disappointed by the Justice Department’s decision. “They’re disappointed the U.S. government won’t seek the death penalty on a mass murderer who drove 10 hours to seek out and kill Hispanic and Mexican people,” Mr. Underwood said. “If this guy doesn’t qualify for the death penalty, why on earth do we even have a federal death penalty statute?”

Mr. Underwood questioned why the federal government continued to pursue the death penalty in Mr. Saipov’s case in New York, but not in the Walmart shooting.  Mr. Hoffman’s widow and his two sons are now looking to the state’s case for justice, Mr. Underwood said.  “This might not be the Christian thing for me to say, but some people need to be killed and he certainly qualifies,” Mr. Underwood said. “I just put my faith in the state of Texas to seek justice in this case.”

Intriguingly, this Reuters article about this prosecutorial charging decision makes mention of a fact not noted by the WSJ that might be part of the story: "When he was taken into police custody minutes after the shooting, Crusius was in a psychotic state and treated with anti-psychotic medication, according to mental health professionals employed by the jail, a court filing said."  Mental health issues might well have influenced federal prosecutors here; Crusius's defense attorneys hoped it would accourding to this 2020 AP piece:

Lawyers for a man charged with shooting scores of people in a racist attack at a Texas Walmart say their client has diagnosed mental disabilities that should be a “red flag” for federal prosecutors considering whether to seek the death penalty.

Patrick Crusius “has been diagnosed with severe, lifelong neurological and mental disabilities” and was treated with antipsychotic medication following his arrest moments after the massacre in El Paso, his attorneys wrote in a court filing.

Just a couple of criminal matters in big new set of SCOTUS cert grants

The Supreme Court this afternoon granted cert on a number of cases via this order list.  Sadly, there is not much of interest in all the cases for sentencing fans, and really only one criminal case and immigration cases with criminal law elements.  This SCOTUSblog post has all the details, and here are snippets from that post:

The Supreme Court will review how employers must accommodate their employees’ religious practices, how courts should decide whether threatening statements are protected by the First Amendment, and whether a local government violated the Constitution when it confiscated and sold a $40,000 home based on the owner’s failure to pay $15,000 in property taxes.

Those issues are among a slew of new disputes that the justices added to their docket on Friday afternoon in an order list from their private conference earlier in the day. The justices granted review in 11 new cases for a total of eight hours of oral argument. The cases will likely be argued in late April, with decisions to follow by summer....

Counterman v. Colorado

The court also agreed to weigh in on an important free speech question: What test should courts use to determine whether statements are “true threats” that are not protected by the First Amendment? The question comes to the court in the case of Billy Raymond Counterman, who was convicted and sentenced to four-and-a-half years in prison for stalking a local musician....

Pugin v. Garland and Garland v. Cordero-Garcia

In a pair of immigration cases that have been consolidated for oral argument, the justices agreed to decide whether a criminal offense that does not interfere with an existing investigation or judicial proceeding qualifies as an “offense relating to obstruction of justice,” a serious crime that can result in deportation and additional criminal punishment for noncitizens.

US Sentencing Commission releases "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System"

This morning, the US Sentencing Commission has released this interesting new report titled "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System."  This USSC webpage provides this summary and key findings:

The report entitled Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System updates a 2016 Commission study and examines sentences for simple possession of marijuana offenses in two respects.  Part One of the report assesses trends in federal sentencings for simple possession of marijuana since fiscal year 2014.  The report then describes the demographic characteristics, criminal history, and sentencing outcomes of federal offenders sentenced for marijuana possession in the last five fiscal years and compares them to federal offenders sentenced for possession of other drug types.

Part Two of the report examines how prior sentences for simple possession of marijuana (under both federal and state law) affect criminal history calculations under the federal sentencing guidelines for new federal offenses.  The report identifies how many federal offenders sentenced in fiscal year 2021 — for any crime type — received criminal history points under Chapter Four of the Guidelines Manual for prior marijuana possession sentences.  The report then assesses the impact of such points on those offenders’ criminal history category, one of the two components used to establish the sentencing guideline range.

Key Findings

Federal Sentencings for Simple Possession of Marijuana

• The number of federal offenders sentenced for simple possession of marijuana is relatively small and has been declining steadily from 2,172 in fiscal year 2014 to only 145 in fiscal year 2021.
• The overall trends were largely driven by one district, the District of Arizona, which accounted for nearly 80 percent (78.9%) of all federal marijuana possession sentencings since 2014.  As the number of such cases in the District of Arizona declined from a peak of 1,916 in 2014 to just two in fiscal year 2021, the overall federal caseload followed a similar pattern.
• Federal offenders sentenced for marijuana possession in the last five fiscal years tended to be male (85.5%), Hispanic (70.8%), and non-U.S. citizens (59.8%).  A little over two-thirds (70.1%) were sentenced to prison; the average prison sentence imposed was five months.
• As of January 2022, no offenders sentenced solely for simple possession of marijuana remained in the custody of the Federal Bureau of Prisons.

Impact of Prior Sentences for Simple Possession of Marijuana

• In fiscal year 2021, 4,405 federal offenders (8.0%) received criminal history points under the federal sentencing guidelines for prior marijuana possession sentences.  Most of the prior sentences (79.3%) were for less than 60 days in prison, including non-custodial sentences.  Furthermore, ten percent (10.2%) of these 4,405 offenders had no other criminal history points.
• The criminal history points assigned under the federal sentencing guidelines for prior marijuana possession sentences resulted in a higher criminal history category for 1,765 of the 4,405 offenders (40.1%).
• Of the 1,765 offenders whose criminal history category was impacted by a prior marijuana possession sentence, most were male (94.2%), U.S. citizens (80.0%), and either Black (41.7%) or Hispanic (40.1%).
• Nearly all (97.0%) of the prior marijuana possession sentences were for state convictions, some of which were from states that have changed their laws to decriminalize (22.2%) or legalize (18.2%) marijuana possession, states that allow for expungement or sealing of marijuana possession records (19.7%), or some combination thereof.  Prior sentences for marijuana possession from these states resulted in higher criminal history calculations under the federal sentencing guidelines for 695 offenders.

Noticing the shape of the federal death penalty circa 2023

Just under 20 years ago, in the inaugural issue of the Ohio State Journal of Criminal Law, Carol Steiker and Jordan Steiker authored this fascinating little article imagining the death pemalty circa 2022.  The article's title, "Abolition in Our Time," reveals that the piece did not perfectly predict the future.  But the piece did have this somewhat prescient take on how "the politics of the death penalty have shifted":

Prominent politicians in both parties are willing to oppose the death penalty publicly, though very few make it a political priority. Many such leaders also distinguish between the importance of retaining the death penalty for cases in which "vital national interests" are at stake — the war on terrorism — and cases involving ordinary state law enforcement.

The Steikers' article came to mind for me today as I read this new New York Times piece discussing the current state of the federal death penalty. The piece is headlined "Suspect in Bike Path Killing Faces First Death Penalty Trial Under Biden," and here are excerpts:

On Halloween 2017, Sayfullo Saipov plowed a rented pickup truck down Manhattan’s crowded West Side bicycle path, smashing into pedestrians and cyclists, killing eight people and injuring more than a dozen, the authorities said.

Soon after Mr. Saipov was charged, President Donald J. Trump tweeted, “SHOULD GET DEATH PENALTY!” And his attorney general later directed prosecutors to seek execution if Mr. Saipov was convicted.

Last year, Mr. Saipov’s lawyers asked President Biden’s Justice Department to withdraw that order. Mr. Biden, after all, had campaigned against capital punishment. But his attorney general, Merrick B. Garland, denied the request, and on Monday, Mr. Saipov’s trial is scheduled to begin in Federal District Court in Manhattan — the first federal death penalty trial under the Biden administration.

Mr. Garland’s decision to continue pursuing the death penalty for Mr. Saipov, an Uzbek immigrant, suggests a nuanced approach, one in which he has been reluctant to withdraw the threat of capital punishment in one type of case in particular: terrorism-related offenses....

Since taking office nearly two years ago, Mr. Garland has not sought capital punishment in any new case and indeed has declared a nationwide moratorium on federal executions. The Justice Department has also withdrawn directives issued by previous administrations seeking the death penalty against 25 federal defendants, according to court records and the department’s data.

At the same time, the department has defended appeals of the death sentences imposed during President Barack Obama’s administration on Dzhokhar Tsarnaev, the Boston Marathon bomber, and Dylann S. Roof, the white supremacist who killed nine members of a Black church in South Carolina....

A spokesman for the Justice Department said that as a matter of policy it does not offer public reasons for decisions to withdraw death penalty directives. Nicholas Biase, a spokesman for the U.S. attorney’s office in Manhattan, and David E. Patton, a lawyer for Mr. Saipov, declined to comment on the case.

But some lawyers said a pattern had emerged: None of the 25 defendants for whom the Justice Department has withdrawn death penalty requests were charged in a terrorism-related offense.  “Early on, it became clear that notwithstanding the statements made by both the president and the attorney general, that there was going to be this sort of carve-out around terrorism,” said Anthony L. Ricco, a veteran death penalty defense lawyer in New York.

Reviewing prosecutions and sentencings two years after January 6 Capitol riots

A number of major papers today provide some major reviews of the prosecution and sentencing of January 6 rioters on the two-year anniversary of the storming of the Capitol.  Here are headlines and links, as well as an except from the story most focused on sentencing outcomes:

From the New York Times, "Two Years Later, Prosecutions of Jan. 6 Rioters Continue to Grow: The Justice Department’s investigation of the Capitol attack, already the largest it has ever conducted, has resulted in 900 arrests, with the potential for scores or hundreds more to come."

From USA Today, "More than 950 people have been charged in Jan. 6 Capitol riot, but investigation 'far from over'"

From the Washington Post, "Review of Jan. 6 cases finds judges give harsh lectures, lighter sentences: Judges have gone below prosecutors’ recommendations three-quarters of time, and below federal sentencing guidelines a little less than 40 percent":

Of more than 460 people charged with felonies, only 69 have been convicted and sentenced so far, mostly for assaulting police or obstructing Congress; all but four have received jail or prison time. The average prison sentence for a felony conviction so far is 33 months, according to a Washington Post database....

About half of the arrests so far have been for misdemeanors, and for those given actual jail time, the average sentence has been 48 days. But most of the misdemeanants have not received any jail time: most have received probation, home detention or halfway house time, or a fine. These defendants are typically rioters who entered the Capitol and didn’t engage with the police, but left a trail of social media posts and photos before, during and after Jan. 6.

If we include those who didn’t receive jail time among the misdemeanor sentences, the average jail time drops to 22 days. The number of defendants being held in jail before trial, or awaiting sentencing, is about 50, according to a list provided by the Justice Department....

For the 25 defendants sentenced so far for assaulting law enforcement, the average sentence has been more than 48 months — in line with the nationwide average for that offense in recent years, according to data from the U.S. Sentencing Commission. Former New York City police officer Thomas Webster received a 10-year term for fighting with an officer and helping breach the outer perimeter. There are still nearly 180 defendants whose assault cases are pending.

The most serious charge for those not accused of assaulting the police has been obstruction of an official proceeding. Only 28 people have been sentenced for obstruction or conspiracy to obstruct the certification of the electoral vote, receiving an average sentence of about 42 months....

The judges appointed by Democratic presidents have imposed jail or prison sentences in 61 percent of their cases, and probation in 18 percent of the cases, while judges appointed by Republican presidents have given jail or prison sentences in 48 percent of their cases, and probation in 34 percent of cases. In the remaining cases, judges have sentenced defendants to home detention or a halfway house, or imposed a fine. Judge Tanya Chutkan, an Obama appointee, has handled 22 sentencings and imposed incarceration in every one, but another Obama appointee, Judge Rudolph Contreras, has handled 16 sentencings and jailed only one defendant.

Judges Dabney Friedrich and Trevor N. McFadden, both Trump appointees, have given probation sentences to about half of their Jan. 6 defendants. McFadden is also the only judge to have acquitted a defendant at trial and the only judge to have imposed only a fine on a defendant.

Some highlights from Ohio's sweeping new criminal justice reform bill

From sentencing to prison reform to marijuana policy to record relief, Ohio has long been a state with all sort of dynamics developments across a range of criminal law and policy issues of great interest to me.  And, as this local article details, these dynamic realities continued in the Buckeye State at the end of 2022 and into 2023 as the Ohio General Assebly finally completed a long-in-development major criminal reform bill known as Senate Bill 288.  There is so much in the massive SB 288, I am still looking for an effective and complete summary.  But the press piece reviews some of the parts I wish to highlight here:

Gov. Mike DeWine on Tuesday signed into law an enormous criminal justice reform bill making it easier for Ohioans to adjust to life after their release, giving state officials wider latitude to release inmates early, reducing the consequences of minor marijuana offenses, and reducing underage drinking penalties, among dozens of other provisions.

The most high-profile part of the new law, added shortly before it passed the legislature, toughens Ohio’s distracted-driving laws. But the 1,000-page bill, which passed the legislature with overwhelming support, also makes the greatest changes to Ohio’s criminal code in years.

The new law, which takes effect in early April, was the product of nearly two years of work by state lawmakers and various agencies and groups. DeWine, before signing Senate Bill 288 during a Statehouse signing ceremony, said that while Ohioans might not agree with every part of the legislation, “everybody was heard” about their opinions. “I think legislators should be complimented on the fact that they reached out to prosecutors, that they reached out to defenders, that they reached out to law-enforcement agencies,” the governor said....

Two of the most important parts of SB288 will expand when people convicted of crimes can seek to have their criminal records sealed – in other words, kept private with limited exceptions – or expunged, meaning their record is destroyed altogether. Proponents argue that sealing and expunging helps to address widespread problems with former inmates getting housing, being offered a job, or securing a loan because of their criminal record.

Other parts of the new law will:

Allow prosecutors or city law directors to expunge thousands of low-level marijuana possession offenses, as well as ensure that arrests or convictions for possessing marijuana paraphernalia won’t appear on Ohioans’ criminal records.

Give the Department of Rehabilitation and Correction, the state’s prison agency, more power to decide when inmates should be granted an early release.

Set up a process for inmates to ask a judge for early release when the Ohio governor declares a state of emergency due to a pandemic or other public health crisis.

Allow inmates to shave more time off their sentences for participating in educational, job training, or drug treatment programs.

Expand Ohio’s “Good Samaritan” law that provides immunity from arrest or prosecution for people who seek medical assistance for an overdose – either on their own behalf or for someone else – as long as the person receiving that legal protection is referred to addiction treatment within 30 days....

Create the new offense of “strangulation,” which would range from a fifth-degree felony to a second-degree felony. Domestic-abuse advocates have worked for years to pass such a law, pointing to research indicating that victims who are strangled by their partner are more than seven times as likely to end up being murdered by their abuser....

Require a minimum five-year prison sentence for anyone convicted of “aggravated vehicular homicide” in cases where the victim is a firefighter or an emergency medical worker. The change was brought in response to the death of Cleveland firefighter Johnny Tetrick, who was killed during a hit-and-run along Interstate 90 last month.

Decriminalize fentanyl test strips, used to test substances for the opioid. Test strips are currently classified by Ohio law as “drug paraphernalia,” and people found to possess them can face up to 30 days in jail. Supporters of the move argue it will help reduce fatal overdoses in the state; critics say the strips can help drug users look for fentanyl, which was involved in 81% of Ohio overdose deaths in 2020, according to the Ohio Department of Health.

You be the judge: what federal sentence for Varsity Blues college admission scandal mastermind Rick Singer?

Wednesday afternoon brings a high-profile federal sentencing in Boston federal court, and I'd be interested in predictions (and/or recommendations) as to the sentence to be given to the man behind the Varsity Blues college admission scandal.  This lengthy NPR piece provides a preview, and here are excerpts:

The mastermind of the Varsity Blues college admissions scandal, Rick Singer, is set to be sentenced Wednesday in Boston for a scheme that federal prosecutors say is "staggering in its scope and breathtaking in its audacity." Prosecutors want him sentenced to six years in prison, while Singer is asking the judge to let him off with little or no prison time.

His sentencing is the capstone in the years-long investigation and prosecution of Singer and more than 50 co-conspirators, and puts the focus back on what has and has not changed since the scandal broke open in March 2019.

Singer, 62, pleaded guilty to raking in some $25 million by selling what he liked to call "a side door" into highly selective universities such as Yale, Georgetown and USC to dozens of clients, from actresses Felicity Huffman and Lori Loughlin to business titans and big-shot lawyers.  "We help the wealthiest families in the U.S. get their kids in school," Singer bragged as he pitched one of his clients on a call recorded by the FBI. "They want guarantees. They want this thing done."

His scheme involved, for instance, bribing college coaches to take students as athletic recruits, even if they were mediocre or had never even played the sport.  Singer would just make up a totally fake resume, complete with a student's face photoshopped onto an image of a real athlete.  His menu of cheating services also included fixing students' wrong answers on their college admissions tests or having someone take the test in their place....

Of the more than 50 parents, coaches and others caught up in the scheme, more than a third were sentenced to three months or less in prison.  Roughly a quarter of the defendants got no time at all behind bars, including five people who cooperated with prosecutors.

Singer is hoping his cooperation will earn him leniency, too. "He believes he will get some time, but I don't think he believes it will be a lot of time," says Bill Blankenship, who lives next door to Singer in a mobile home park in St. Petersburg, Fla.... "I have lost everything," Singer wrote in court filings pleading for leniency. He says he's "woken up every day feeling shame, remorse and regret."

"He is already serving a life sentence of sorts," his lawyers say, "vilified by the public, and ostracized, living an isolated, lonely life," and having lost "the trust and respect of family, friends."  Despite pleading guilty to conspiracy to commit racketeering, conspiracy to commit money laundering, obstruction of justice and conspiracy to defraud the United States, Singer's lawyers have asked the court to sentence him to home confinement instead of prison.  Or if Singer must serve time, his lawyers suggest, he should get no more than six months behind bars.

The lawyers also say Singer deserves credit for his "crucial" cooperation, helping prosecutors nab his former clients. He secretly recorded hundreds of phone calls with some 30 co-conspirators, methodically and craftily getting them to incriminate themselves by acknowledging the payments and bribes they paid as the tape rolled.  His ruse was to tell them that his fake charitable foundation that he used to launder bribe money was being audited by the IRS....

"Prosecutors made a deal with the devil in this case, but they always do," says former federal Judge Nancy Gertner. What makes this case unusual is that the deal is not with low-level co-conspirators ratting out the kingpin, it's with the kingpin himself, flipping on his former clients.  "I think this is an extraordinarily difficult sentencing," Gertner says, "because on the one hand, Singer's cooperation is enormously important. And you get people to cooperate by telling them they will get a benefit in their sentencing."  On the other hand, she notes, as the kingpin who masterminded the whole scheme and used more than $15 million of his clients' bribe money for his own benefit, Singer would be considered "more culpable than anyone — his cooperation notwithstanding."

Indeed, prosecutors argue Singer is most culpable "by leaps and bounds" and his sentence must be longer than the longest one to date, which was the two-and-a-half years imposed on former Georgetown University tennis coach Gordon Ernst, who accepted nearly $3.5 million in bribes in cases of at least 22 students.

Prosecutors also argue that while Singer's cooperation was "singularly valuable," it was also "singularly problematic." After he was arrested for his con, Singer actually tried to con prosecutors, too.  At the same time he was vowing to cooperate to nab other targets, he tipped off at least six co-conspirators, warning they were under investigation and that if they got a call from him, they should assume they were being recorded and deny any wrongdoing.

It's partly why prosecutors are not recommending more of a reward for Singer's cooperation.  The six years they're calling for is just slightly below the range of 6 ½ to 8 years set by the sentencing guidelines that the court has accepted.

I will likely be on a plane when this interesting sentencing takes place, so I am not sure when I will get a chance to report on the outcome.  But I am inclined to predict that the judge here will land on a prison sentence between the recommendations of the parties, probably in the three- or four-year range.

A few of many prior posts on other defendants in college admissions scandal:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal
• Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal
• Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal 
• Napa Valley winemaker gets five months of imprisonment, the longest sentence so far in college admissions scandal
• Catching up with another round of sentencings in "Operation Varsity Blues"
• Reviewing the sentencing dynamics as more parents get (minimal) prison time in "Operation Varsity Blues" college admissions scandal 
• Nine-month federal prison term (the longest yet) given to former CEO who paid nearly $1 million to benefit four kids in college admission scandal 
• Felicity Huffman sentenced to 14 days in college bribery scandal 
• Via video, Lori Loughlin and her husband get agreed fixed short prison sentences in college admission scandal 
• Trial penalties lead to longest (but still not so long) sentences for two Varsity Blues defendants 
• Longest prison sentence yet in Varisity Blues case, 30 months, given to Georgetown tennis coach

UPDATE: This CNN report on the sentencing, headlined "College admissions scam mastermind sentenced to 3.5 years in federal prison," documents that my prediction was actually pretty sound.  (If only there was a fantasy sentencing league instead of the sports leagues in which my outcome predictions fare much worse.)

Federal judge sentences Michigan man who plotted to kidnap Gov to 16 years despite feds seeking LWOP ... and thereafter give other leader 235 months

As reported in this NBC News piece, headlined "Man sentenced to 16 years for plotting to kidnap Michigan Gov. Gretchen Whitmer," a high-profile case reached a sentencing outcome this morning in Michigan federal court. Here are some of the notable details:

A federal judge on Tuesday sentenced a man to 16 years in prison for his role in a plot to kidnap Michigan Gov. Gretchen Whitmer — opting against the prosecution's bid for life behind bars.

Adam Fox, 39, was convicted in August of conspiracy to commit kidnapping and to use a weapon of mass destruction to attack Whitmer, who had drawn the ire of far-right groups for her efforts to curb the spread of Covid-19 in 2020. Jurors in April failed to come to verdicts against Fox and co-defendant Barry Croft, forcing a judge to declare a mistrial before a second trial proved decisive.

U.S. District Judge Robert Jonker questioned whether Fox was a true "natural leader" of the plot, worthy of a life sentence.  "I don't think life is needed to achieve the important public deterrent factors," Jonker said in Grand Rapids, explaining the 192-month sentence.

While a terrorism enhancement set up Fox for a possible life term, Jonker said that harshest sentence isn’t automatic and that he had to carefully consider other factors.  Jonker said he leaned heavily on a 2018-19 Northern California case where U.S. District Judge Charles Breyer, brother of retired U.S. Supreme Court Justice Stephen Breyer, sentenced ISIS sympathizer Amer Alhaggagi to 188 months in prison, more than 15 years short of the 33 years sought by prosecutors.

“You have to calibrate, as judges, the overall seriousness of wrongdoing and the overall seriousness of the defendant’s history," Jonker said. “I see nothing in the record ... nothing that makes me think he’s (Fox) a natural leader and nothing that makes me think he’s the kind of person that anybody involved in this group was naturally going to follow.”

Assistant U.S. Attorney Nils Kessler had said Fox was out to spark an all-out war and needed to be put away for life. “They wanted a second Civil War or a revolution,” Kessler told the court on Tuesday.  "They wanted to ruin everything for everybody."  Kessler warned that Fox will still be a dangerous man when he someday walks free. “The problem is this defendant, he’s going to go into jail and probably emerge more radicalized than when he went in and will remain a danger to the public, your honor," the prosecutor said.

The plot was hatched in response to Whitmer's actions during the start of the pandemic in 2020 when she ordered various lockdowns aimed at curbing the spread of Covid. Far-right groups blasted Whitmer, and then-President Donald Trump appeared to back that opposition in an all-caps tweet.

Defense attorney Christopher Gibbons argued on Tuesday that a life sentence would have been too much.  "That overstates the reality of the conduct that has been alleged and that was actually accomplished by Adam Fox in summer of 2020," Gibbons said.

Based on various press reports, I surmise a terrorism enhancement under the federal sentencing guidelines led to a guildeine-recommended sentencing of life, which is turn served as a key basis for federal prosecutors to advocate for an LWOP term. But it seems Judge Jonker concluded that a 16-year prison term would be "sufficient but not greater than necessary" to serve the purposes set forth by Congress in 18 USC 3553(a)(2).

UPDATE:  On Wednesday (Dec. 28), another kidnapping plot leader was sentenced by the same judge as detailed in this Fox News account:

The other co-leader convicted of conspiracy charges in the foiled plot to kidnap Michigan Gov. Gretchen Whitmer in 2020 was sentenced Wednesday to nearly 20 years in prison.

Barry Croft Jr., who prosecutors recommended a life sentence, learned of his punishment a day after key ally Adam Fox was sentenced to 16 years. Croft was sentenced to 19 years and seven months.

Fox, 39, and Croft, 47, were convicted on two counts of conspiracy at a trial in August. Croft also was found guilty of possessing an unregistered explosive.  The conspirators were furious over tough COVID-19 restrictions that Whitmer and officials in other states had put in place during the early months of the pandemic, as well as perceived threats to gun ownership.

Croft, a Delaware trucker, regularly wore a tri-cornered hat common during the American Revolution and had tattoos on his arms symbolizing resistance -- "Expect Us" -- as he traveled to Ohio, Wisconsin and Michigan to meet with like-minded extremists, according to the Associated Press. "Although he may not have had hierarchical control over all the other participants, he coordinated and pushed the implementation of the conspiracy from its inception to its final stages," Assistant U.S. Attorney Nils Kessler said in a court filing....

"The abduction of the governor was only meant to be the beginning of Croft’s reign of terror," Kessler said. "He called for riots, ‘torching’ government officials in their sleep and setting off a ‘domino’ effect of violence across the country."

A key piece of evidence showed Croft, Fox and others traveled to see Whitmer's vacation home in northern Michigan, with undercover agents and informants inside the cabal. At one point, Croft told allies, "I don’t like seeing anybody get killed either. But you don’t make an omelet without breaking a few eggs, you know what I mean?"

Croft's attorney tried to soften his client's role. In a court filing, Joshua Blanchard said the Bear, Delaware, man did not actually have authority over others and often frustrated them because he "just kept talking." Croft was smoking 2 ounces of marijuana per week, Blanchard said. "Simply put, to the extent that the jury determined he was a participant, as they necessarily did, he was a participant to a lesser degree than others," Blanchard insisted.

Two men who pleaded guilty and testified against Fox and Croft received substantial breaks; Ty Garbin is already free after a 2 1/2-year prison term, while Kaleb Franks was given a four-year sentence.

In state court, three men recently were given lengthy sentences for assisting Fox earlier in the summer of 2020. Five more are awaiting trial in Antrim County, where Whitmer’s vacation home is located.

New crack sentence reductions (but not equalization or retroactivity) reportedly in Congress's year-end lawmaking

I think I am excited — though I might also be more than a bit disappointed — to see reports from a few press sources that Congress may be getting close to passing a version of crack sentencing reform, though apparently not one that will fully equalize powder and crack sentencing terms or that will make new reforms retroactive.  This Reuters piece, healdined "U.S. Senate set to address cocaine sentencing disparity in funding bill," provides these details:

Negotiators in the U.S. Senate have reached a tentative deal to narrow sentencing disparities between crack and powder cocaine and plan to tuck the measure into a bill funding the government, according to four people briefed on the matter....

Under a deal reached by bipartisan negotiators, that [crack/powder weight disparity] would be narrowed to 2.5 to 1, said the people, who requested anonymity to discuss private talks. Congress is likely to attach the measure to a year-end spending bill that lawmakers are currently hashing out, they added.

Legislation that would completely eliminate the sentencing disparity between crack and powder passed in the House of Representatives by a wide margin last year, though it has not advanced in the Senate.

Several Senate Republicans, including Chuck Grassley, the party's highest-ranking member on the Judiciary Committee, have publicly supported a 2.5-to-1 proportion instead. Grassley's office did not respond to a request for comment. Senator Dick Durbin, the No. 2 Senate Democrat and a key actor in cocaine sentencing talks, declined to comment.

The tentative deal does not include retroactive relief for people already convicted of crack-related offenses, which sentencing reform groups had been pushing for, the people said.

The disparities between crack and powder date back to war-on-drugs policies of the 1980s. In 1986, Congress passed a law to establish mandatory minimum sentences for drug trafficking offenses, which treated crack and powder cocaine offenses using a 100-to-1 ratio. Under that formula, a person convicted for selling 5 grams of crack cocaine was treated the same as someone who sold 500 grams of powder cocaine. That proportion was narrowed to 18 to 1 in 2010.

While the people involved in negotiations see the passage of the cocaine sentencing compromise as likely, they warned the deal could still fall apart as Congress races to pass the sweeping, expected $1.7 trillion government funding measure.

I always welcome "half-a-loaf" criminal justice reforms and better than getting nothing done at all.  And I had come to think this Congress was going to get nothing done at all on this front.  So, I am keen to be excited about something seemingly on a path to enactment.

But Senator Grassley's original proposal for a 2.5-1 cocaine sentencing ratio, as detailed here, called for essentially increasing punishment levels for powder cocaine along with loweing punishments for crack cocaine.  Given that US Sentencing Commission data show that there are now nearly three times as many powder cases sentenced in federal courts as crack cases, it is possible that efforts to reduce disparities here (depanding on the particulars) could actually raise sentences overall.  My guess is that any deal being stuck is likely to have a net reduction in expected prison time, but the devil will be in the statutory details.  In addition, how the new US Sentencing Commission responds to any statutory reforms will be most consequential in the long run.

"Criminal Justice Reform and the Centrality of Intent"

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

The nationwide movement for criminal justice reform has produced numerous proposals to amend procedural and sentencing practices in the American criminal justice system.  These include plans to abolish mandatory minimum schemes in criminal sentencing; address discrimination in charging, convicting, and sentencing; reform drug policy; rectify discriminatory policies and practices in policing; assist incarcerated individuals in re-entering society when released from prison; and reorganize our system of juvenile justice.  But less attention has been given to reforming the substantive content of the criminal law — specifically, to addressing flaws in how the law defines the elements of criminal culpability and deploys them in criminal cases.  Yet important change is needed in this area.

This article addresses that need, proposing to abolish three substantive doctrines which share a common flaw: They all reduce or eliminate the prosecution’s burden of proving a defendant’s mental culpability — their 'intent' — in criminal homicide cases.  The three doctrines arise in two overlapping areas of the criminal law: the law of homicide and the law of accomplice liability.  All three doctrines make it significantly easier to secure convictions, for serious crimes including murder, without requiring the state to prove the defendant’s mental culpability with respect to the specific crime charged.  The solution to this injustice — and the chief recommendation of this article — is therefore identical in all three cases: Amid the current national and bipartisan movement to reform the criminal justice system, legislatures and courts should abolish these doctrines.

Ohio Supreme Court splits over ineffectiveness of counsel who "failed to explain neonaticide" at sentencing

The Ohio Supreme Court today issued an notable split decision that ultimately rules that a notable defendant had received ineffective assistance of counsel when sentenced to life without parole in a sad case of neonaticide.  The ruling in State v. Weaver, Slip Op. No. 2022-Ohio-4371 (Oh. Dec. 8, 2023) (available here) is very well summarized at the start of this official court summary:

The Supreme Court of Ohio has ordered a new sentencing hearing for a former college student sentenced to life in prison for the murder of her newborn baby in the bathroom of her sorority house.  In 4-3 decision, the Supreme Court ruled that Emile Weaver received ineffective assistance of counsel when her lawyer failed to explain neonaticide, which is the murder of an infant within 24 hours of birth, at her sentencing hearing and how neonaticide is “not considered a premeditated act” but rather an act “within the context of extreme panic.”

The decision reversed the Fifth District Court of Appeals, which found the Muskingum County Common Pleas Court did not abuse its discretion by denying Weaver’s claim that her counsel was ineffective.  Weaver filed a petition for postconviction relief, alleging that her lawyer failed to present a complete explanation of neonaticide during sentencing which could have led to a less severe punishment.  The same judge who sentenced Weaver to life in prison without the possibility of parole denied her petition.  The trial judge discredited an expert witness who tried to explain Weaver’s condition.

Writing for the Court majority, Chief Justice Maureen O’Connor stated that the trial judge demonstrated an arbitrary and unreasonable attitude toward the evidence of neonaticide and pregnancy-negation syndrome. “Not only did the trial court misunderstand the evidence pertaining to neonaticide and pregnancy-negation syndrome, but it demonstrated a willful refusal to consider such evidence,” Chief Justice O’Connor wrote.

The Court remanded the case to the trial court with instructions that another trial judge conduct the sentencing.  Justices Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined the chief justice’s opinion.

In a dissenting opinion, Justice R. Patrick DeWine wrote that Weaver’s lawyer was not ineffective for failing to explain why she would commit neonaticide.  He noted that Weaver’s defense at trial was that she did not kill her baby, but rather that the baby died of natural causes.  Expecting the defense to explain how Weaver suffered from pregnancy negation would undermine the argument that she did not kill the baby, he concluded.  Justices Sharon L. Kennedy and Patrick F. Fischer joined Justice DeWine’s opinion.

Here are the basic details of the crimes as decribed by in the majority opinion:

In the fall of 2014, Weaver returned as a sophomore to Muskingum University in New Concord, Ohio, where she lived in a campus sorority house.  After Weaver visited a wellness center to obtain birth control, the center reached out to her to let her know that she was pregnant, but Weaver testified that she had never looked at or read the message from the center.  Weaver also testified that she did not “completely” believe that she was pregnant, because she did not show the normal signs of pregnancy — specifically, she did not (1) gain weight, (2) have morning sickness or exhaustion, or (3) stop menstruating.  Throughout her pregnancy, Weaver consistently denied that she was pregnant when either her sorority sisters or other people asked, and she never told her mother.  At trial, Weaver explained that she had lied about her pregnancy because she was scared, “felt like [she] had no one,” and was “worried about * * * getting in trouble.”  Weaver did, however, discuss her pregnancy with her boyfriend — whom she had a “rocky relationship” with — and he encouraged her not to tell anyone.  Weaver described him as “controlling and judgmental,” as well as “abusive.”

On April 22, 2015, believing that she was having a bowel movement, Weaver went to the sorority-house bathroom.  Shortly thereafter, she realized that she was in labor and silently, without assistance, delivered the baby into the toilet. Later that day, two sorority members discovered the baby in a trash bag lying next to the sorority house.

Buffalo mass shooter pleads guilty to first-degree murder charges in state court

As this AP article details, the "white gunman who massacred 10 Black shoppers and workers at a Buffalo supermarket pleaded guilty Monday to murder and hate-motivated terrorism charges, guaranteeing that he will spend the rest of his life in prison." Here is more:

Payton Gendron, 19, entered the plea Monday in a courthouse roughly two miles from the grocery store where he used a semiautomatic rifle and body armor to carry out a racist assault he hoped would help preserve white power in the U.S.

He pleaded guilty to all the charges in the grand jury indictment, including murder, murder as a hate crime and hate-motivated domestic terrorism, which carries an automatic sentence of life without parole. Gendron also pleaded guilty to wounding three people who survived the May attack.

Gendron, who was handcuffed and wore an orange jumpsuit, showed little emotion through the 45-minute proceeding, just occasionally licking and clenching his lips. He answered “yes” and “guilty” as the judge referred to each victim by name and asked whether he killed each victim because of their race.

Immediate relatives of the victims were joined by Buffalo Mayor Byron Brown and the police commissioner in the gallery. Many of the relatives appeared to be crying, dabbing their eyes and sniffling. The judge urged calm as the proceedings began. “I understand this is a momentous and tremendously emotional event,” Judge Susan Eagan said.

“Swift justice,” is how Erie County District Attorney John Flynn described the result, noting that it’s the first time anyone in the state of New York has been convicted of the hate-motivated terrorism charge....

Every victim was targeted because of their race, Flynn said, noting that Gendron spared and even apologized to a white person during the attack. He modified a rifle into an illegal assault weapon so that he could kill as many African Americans, in as short a period of time, as he could, Flynn said.

“This critical step represents a condemnation of the racist ideology that fueled his horrific actions on May 14,” said Gendron’s lawyer, Brian Parker. “It is our hope that a final resolution of the state charges will help in some small way to keep the focus on the needs of the victims and the community.”...

Gendron previously pleaded not guilty to separate federal hate crime charges that could result in a death sentence if he is convicted. The U.S. Justice Department has not said whether it will seek capital punishment.

Previewing SCOTUS arguments on reach of federal public-corruption laws

The Supreme Court starts a new round of oral arguments this Monday, beginning with a pair of political corruption cases, Ciminelli v. United States and Percoco v. United States.  SCOTUSblog has these previews of the coming arguments:

"A sharp business deal or a federal crime? Justices will review what counts as fraud in government contracting."

"Former aide to Andrew Cuomo wants court to narrow scope of federal bribery law"

In addition, here are a few media previews:

From The Buffalo News, "Supreme Court to hear Ciminelli, Percoco appeals – and decide shape of federal corruption laws"

From Reuters, "U.S. Supreme Court to weigh Cuomo-era New York corruption cases"

From the Wall Street Journal, "The Supreme Court Gets a Fraud Test: The Justices hear two major cases on prosecutorial overreach."

Local prosecutor seeking LWOP sentence for Michigan school shooter Ethan Crumbley

As reported in this local article, "Oakland County prosecutors plan to seek a life sentence without the chance of parole for the teenage boy who killed four classmates and injured a teacher and six other students at Oxford High School last year."  Here is more:

Ethan Crumbley, 16, pleaded guilty Oct. 24 to terrorism causing death, four counts of first-degree murder, seven counts of attempted murder and 12 counts of felony firearm. Crumbley killed Oxford students Madisyn Baldwin, Tate Myre, Hana St. Juliana and Justin Shilling.

The Oakland County Prosecutor's Office filed a motion Monday notifying the court that it planned to seek a life without parole sentence. "As we previously stated, there have been no plea bargains, no charge reductions, and no sentence agreements," David Williams, Oakland County's chief assistant prosecutor, said Tuesday in a statement. "The shooter has been offered and promised nothing. The motion filed yesterday is a formal declaration of our intent to seek the maximum possible sentence in this case."

Paulette Michel Loftin, Crumbley’s lawyer, said in October before Crumbley entered his plea that he was remorseful and wanted to accept accountability and do the right thing. Pleading guilty was his idea, she said. Crumbley was 15 years old at the time of the shooting on Nov. 30, 2021....

A first-degree murder conviction usually comes with an automatic life without parole sentence, but teenagers are entitled to a hearing where their attorneys can argue for a lighter sentence and present mitigating testimony and evidence about their client's life.  Prosecutors can also put on a case for why their requested sentence is warranted. This hearing is held because of a 2012 U.S. Supreme Court ruling that found mandatory life sentences without parole for juveniles are unconstitutional. The sentencing process is scheduled to start in February.

Oakland County Prosecutor Karen McDonald has said that "every person who was in Oxford High School that day will have a chance, if they want to, to speak in their own words about how this has affected them."

Ethan's parents, James and Jennifer Crumbley, are charged with four counts each of involuntary manslaughter. Prosecutors accused them of "gross negligence" leading up to the murders. They face up to 15 years in prison.

As detialed in this post, just a few months ago the Michigan Supreme Court issued a series of rulings addressing, and generally restricting, when and how juveniles convicted of homicide can receive sentences of life with or without parole.  I would expect that a mass shooting at a school would still be a prime case for a discretionary LWOP sentencing, but Crumbley’s relatively young age and his apparent remorsefulness could open up the possibility of a lesser sentence.

Prior related post:

• Michigan school shooter Ethan Crumbley pleads guilty to all counts with sentencing next year

Sentencing memos paint very different pictures of Elizabeth Holmes

Two Reuters articles and ledes highlight the very different portraites of Elizabeth Holmes drawn in recent sentencing filings:

"Elizabeth Holmes seeks to avoid prison for Theranos fraud":

Elizabeth Holmes urged a U.S. judge not to send her to prison, as the founder of Theranos Inc prepares to be sentenced next week for defrauding investors in the blood testing startup. In a Thursday night court filing, lawyers for Holmes asked that she receive 18 months of home confinement, followed by community service, at her Nov. 18 sentencing before U.S. District Judge Edward Davila in San Jose, California.

The lawyers said prison time was unnecessary to deter future wrongdoing, calling Holmes, 38, a "singular human with much to give" and not the robotic, emotionless "caricature" seen by the public and media. "No defendant should be made a martyr to public passion," the lawyers wrote. "We ask that the court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense."

"U.S. seeks 15 years for Elizabeth Holmes over Theranos fraud":

Theranos founder Elizabeth Holmes should spend 15 years in prison and pay $800 million in restitution to investors defrauded in the blood testing start-up, U.S. prosecutors recommended late on Friday.  The Department of Justice recommendation, made in a court filing, came as Holmes prepares to be sentenced next week.

"Considering the extensiveness of Holmes' fraud... the sentencing of 180 months' imprisonment would reflect the seriousness of the offenses, provide for just punishment for the offenses, and deter Holmes and others," the prosecutors said.

The sentencing filings in this high-profile case are, unsurprisingly, quite entextensive ensice.  Holmes sentencing memorandum runs 82 pages, is available at this link, and here is part of its "preminary statement":

Section 3553(a) requires the Court to fashion a sentence “sufficient, but not greater than necessary,” to serve the purposes of sentencing.  If a period of confinement is necessary, the defense suggests that a term of eighteen months or less, with a subsequent supervised release period that requires community service, will amply meet that charge. But the defense believes that home confinement with a requirement that Ms. Holmes continue her current service work is sufficient.  We acknowledge that this may seem a tall order given the public perception of this case — especially when Ms. Holmes is viewed as the caricature, not the person; when the company is viewed as a house of cards, not as the ambitious, inventive, and indisputably valuable enterprise it was; and when the media vitriol for Ms. Holmes is taken into account.  But the Court’s difficult task is to look beyond those surface-level views when it fashions its sentence.  In doing so, we ask that the Court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense conduct, and the important principle that “no defendant should be made a martyr to public passion.” United States v. Gupta, 904 F. Supp. 2d 349, 355 (S.D.N.Y. 2012) (Rakoff, J.).  As discussed in more detail in the pages that follow, this is a unique case and this defendant is a singular human with much to give.

The Government's sentencing memorandum runs 46 pages, is available at this link, and here is part of its "introduction":

The Sentencing Guidelines appropriately recognize that Holmes’ crimes were extraordinarily serious, among the most substantial white collar offenses Silicon Valley or any other District has seen.  According to the Presentence Investigation Report (“PSR”), they yield a recommended custodial sentence beyond the statutory maximum.  The factors set forth in 18 U.S.C. § 3553 — notably the nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense and promote respect for the law, and the need for both specific deterrence and general deterrence — demand a significant custodial sentence.  With these factors in mind, the government respectfully recommends a sentence of 180 months in custody.  The Court should also order Holmes to serve a three-year term of supervised release, pay full restitution to her investors (including Walgreens and Safeway), and pay the required special assessment for each count.

I think I'd put the over/under for this sentencing at around 10 years of imprisonment, but I could readily imagine a judge going much higher or much lower.

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied 

SCOTUS takes up case to address reach of federal two-year mandatory minimum added prison term for identity theft

I missed late yesterday that the Supreme Court issued a tiny order list on Thursday that granted cert on a single new case.  This news is exciting for those of us interest in seeing a bit more criminal action on the SCOTUS docket, and this SCOTUSblog posting has the details:

The Supreme Court announced on Thursday afternoon that it will weigh in on what it means to commit identity theft. After holding their private conference a day early because Friday is a federal holiday, the justices released a one-sentence order list that added one new case to their merits docket for the 2022-23 term: Dubin v. United States.

The defendant in the case is David Dubin, who was convicted of Medicaid fraud.  As the dispute comes to the Supreme Court, Dubin is challenging a separate conviction under a federal law that makes it a crime to use another person’s identity in the process of committing another crime.  Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld Dubin’s conviction and sentence, and on rehearing a deeply divided full court affirmed that decision. Dubin appealed to the justices in June, and they agreed on Thursday to take up his case, which will likely be argued sometime early next year.

Here is how the question in the case is presented by the defendant in his cert petition:

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.

Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied

As detailed in this AP article, headlined "Bid for new trial fails, Elizabeth Holmes awaits sentencing," a high-prfole federal sentencing is now on track for later this month.  Here are the basics:

A federal judge rejected a bid for a new trial for disgraced Theranos CEO Elizabeth Holmes after concluding a key prosecution witness’s recent remorseful attempt to contact her wasn’t enough to award her another chance to avoid a potential prison sentence for defrauding investors at her blood-testing company.

The ruling issued late Monday by U.S. District Judge Edward Davila is the latest setback for Holmes, a former Silicon Valley star who once boasted an estimated net worth of $4.5 billion but is now facing up to 20 years in prison that would separate her from her 1-year-old son.

In the latest twist in a Silicon Valley soap opera, Holmes appeared to be pregnant when she showed up for an Oct. 17 hearing about her request for a new trial....

Davila has scheduled Nov. 18 as the day he will sentence Holmes, 38, for four felony counts of investor fraud and engaging in a conspiracy with [Rawesh “Sunny”] Balwani.  Earlier Monday, Davila postponed Balwani’s sentencing for his conviction on 12 counts of investor and patient fraud from Nov. 15 to Dec. 7.

I plan to wait until we see the formal sentencing submissions from the parties before even trying to make any predictions as to what kind of prison term Holmes might get.  But I welcome others' predictions in the comments as we gear up for what should be an interesting (and unpredicatable) sentencing proceeding.  

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?

Michigan school shooter Ethan Crumbley pleads guilty to all counts with sentencing next year

As reported in this AP piece, a "teenager pleaded guilty Monday to terrorism and first-degree murder in a Michigan school shooting that killed four students and may be called to testify against his parents, who’ve been jailed on manslaughter charges for their alleged role in the tragedy."  Here is more with an emphasis on sentencing dynamics:

Ethan Crumbley, 16, pleaded guilty to all 24 charges, nearly a year after the attack at Oxford High School in southeastern Michigan.  In the gallery, some relatives of the victims wept as assistant prosecutor Marc Keast described the crimes.  “Yes,” Crumbley replied, looking down and nodding in affirmation, when asked if he “knowingly, willfully and deliberately” chose to shoot other students.

The prosecutor’s office said no deals were made ahead of Monday’s plea. A first-degree murder conviction typically brings an automatic life prison sentence in Michigan, but teenagers are entitled to a hearing where their lawyer can argue for a shorter term and an opportunity for parole.

“We are not aware of any other case, anywhere, in the country where a mass shooter has been convicted of terrorism on state charges,” Oakland County Prosecutor Karen McDonald said.

The teenager withdrew his intent to pursue an insanity defense, and repeatedly acknowledged under questioning by Judge Kwame Rowe that he understands the potential penalties.

His parents, James and Jennifer Crumbley, are jailed on charges of involuntary manslaughter, accused of making the gun accessible to their son and ignoring his need for mental health treatment. Ethan Crumbley’s lawyer, Paulette Michel Loftin, said it’s possible he could be called upon to testify against them   She said they’re under a no-contact order, and he has not spoken to his parents.  Parents have rarely been charged in school shootings, though the guns used commonly come from the home of a parent or close relative....

Sheriff Michael Bouchard told reporters Monday that Ethan Crumbley still had 18 rounds of ammunition when he was arrested. “It’s my belief he would have fired every one of those had he not been interrupted by deputies going immediately in,” said Bouchard who also called Ethan Crumbley “a twisted and evil person.” “I hope he gets life without parole,” the sheriff added. “He has permanently taken lives away from four lovely souls and he’s permanently affected many, many more.”

Prosecutors earlier this year disclosed that Ethan Crumbley had hallucinations about demons and was fascinated by guns and Nazi propaganda.  “Put simply, they created an environment in which their son’s violent tendencies flourished.  They were aware their son was troubled, and then they bought him a gun,” prosecutors said in a court filing....

In addition to the counts of first-degree murder and terrorism causing death, Ethan Crumbley admitted guilt to seven counts of assault with intent to murder and 12 counts of possessing a firearm in the commission of a felony.

The judge set Feb. 9 for the start of hearings to determine if he’ll be sentenced to life without parole or get a shorter sentence due to his age, and a chance at release. His lawyers will be able to argue a variety of mitigating circumstances, including family life and mental health.  Prosecutors didn’t signal in court if they will argue for a no-parole sentence.

Federal judge sentences Steve Bannon to 4 months of imprisonment for contempt of Congress

As reported in this USA Today piece, "Trump White House strategist Steve Bannon was sentenced to four months in prison Friday, three months after his conviction on contempt of Congress charges for defying a subpoena from the special House committee investigating the Jan. 6, 2021 Capitol attack." Here is a bit more:

The Justice Department had sought a six month prison term for Bannon and recommended that he pay a maximum fine of $200,000 for "his sustained, bad-faith."... While Bannon initially refused to comply with the panel's summons, citing a claim of executive privilege, prosecutors said Monday that the Trump operative's actions were "aimed at undermining the Committee’s efforts to investigate an historic attack on government."

Bannon's attorneys argued that a sentence of probation was more appropriate. "The legal challenges advanced by Mr. Bannon were not meritless or frivolous and were aimed at protecting his constitutional rights," attorney Evan Corcoran argued in court documents. "For these reasons, the fact that Mr. Bannon chose to put the Government to its burden at trial should not preclude him from receiving a reduction to his offense level based on acceptance of responsibility."

Prior related posts:

• Should "pardoned conduct" be part of Steve Bannon's sentencing after his convictions for contempt of Congress? 
• Feds urging six months' imprisonment and $200,000 fined for Steve Bannon as punishment following his convictions for criminal contempt of Congress 

Might the recent marijuana pardons by Prez Biden "make things worse for criminal legal reform"?

The question in the title of this post is prompted by this new Slate commentary by John Pfaff headlined "Biden’s Focus on Marijuana Is Part of the Problem." One should read the full lengthy piece to understand the full "hot take," but here are some excerpts (with my complaints to follow):

A bigger concern, though, is not just that the policy might accomplish very little, but that it might make things worse for criminal legal reform in the long run because it reinforces a false narrative about the causes of mass punishment in general and mass incarceration in particular.  It’s a narrative that shapes — or, better put, misshapes — policy.

Most Americans are deeply misinformed about why people are in prison.  A survey in 2017 found that solid majorities across the ideological spectrum agreed with the claim that a majority of people in U.S. prisons are there for drug crimes. That’s a far cry from reality: 14 percent of people in state prisons were locked up for drug offenses at the time, a number that has fallen since then.  (Those held in state prisons make up 90 percent of the nation’s incarcerated population.)  This misbelief likely contributed to the next two results from that survey: while majorities of liberals, moderates, and conservatives favored lesser sanctions for those convicted of non-violent crimes who posed little risk of reoffending, majorities of all three groups also opposed lesser sanctions for those convicted of violence who likewise pose little risk of reoffending.

We think we can decarcerate with easy choices.  We cannot.

Nationally, in 2019 almost 60 percent of all people in state prisons were convicted of violence; those convicted of just homicide or rape make up nearly 30 percent of the overall prison population....  If we released everyone held in state prisons convicted not just of marijuana crimes, nor just of drug offenses, but of all non-violent offenses combined, we would still have one of the world’s highest incarceration rates.  Unsurprisingly, this means that violent crimes are also at the heart of racial disparities in U.S. prison populations, as a recent study by the Council on Criminal Justice made clear.

Yet reforms continue to refuse to grapple with this reality.  A 2020 report by the Prison Policy Initiative found nearly 100 state reforms in recent years that had explicitly refused to extend the changes to those convicted of violence.  In some cases, the tradeoff between non-violent and violent crimes is explicit.  In 2016, Maryland’s Democratic legislature scaled back sanctions for non-violent crimes, but also increased punishment for violent offenses.  And just recently, California Gov. Gavin Newsom vetoed a bill to limit the use of solitary confinement, long viewed by behavioral scientists as torture, an indication of the lack of stomach for deeper reforms even among so-called progressive state leaders.

The inability to discuss crimes of violence remains clear in our current politics. Oz’s attacks on Fetterman on crime are now echoed in Wisconsin, where Republican Sen. Ron Johnson says Democratic challenger Mandela Barnes demonstrated “far greater sympathy for the criminal or criminals versus law enforcement or the victims.”  Anecdotal attacks about violent crime have already caused two different New York governors to roll back the state’s 2020 bail reform law, before it was even possible to assess its impact.  Even with new evidence suggesting reform did not contribute much if anything to rising crime in 2020, further rollbacks loom for 2023.  And Virginia recently amended a law that expanded the ability of people in prison to earn good time credits to expressly exclude those who were serving time for any crime of violence.

Meanwhile, as state prison populations fell nationwide by 15 percent from 2010 to 2019, Bureau of Justice Statistics data suggests that the number of people locked up for violence fell by just 1 percent; a separate analysis of the BJS data conducted by the Council on Criminal Justice estimated that the numbers confined for violence actually rose over that time, undermining the declines in drug and property cases.

Talking exclusively about drugs does little in the short-run and reinforces a narrative that appears to affirmatively undermine the sorts of difficult discussions we need to have about the ways we respond to violence.  There are things that Biden could have done, or at least done at the same time, that could have taken advantage of his bully pulpit.

He could have encouraged state and local governments to think about alternative ways to address not just crime, but serious violence.  Biden’s August 2022 Safer America Plan did include some funding for just this but that part of the plan was always secondary to the push to hire more police; it was even framed merely as a way to free up the police to focus more on violence....

He could have announced a push for a repeal of the PLRA or AEDPA, two Clinton era laws that continue to impose real costs on people held in prison or challenging potentially wrongful convictions.  Or, he could have pushed harder to amend the federal code to eliminate qualified immunity for police, or pushed state legislatures to pass such bills, about 35 of which have been proposed in the aftermath of George Floyd’s murder only to almost all be thwarted by police union lobbying.  Such an approach could help improve police-community relations, which in turn could help address the single biggest challenge we face in reducing violence: the general unwillingness of victims of violence to contact the police.

It’s true that these are long-shot proposals.  But short of pardoning every single person in federal prison — an impossibility — nothing any president does will have a significant impact on the size and reach of a criminal legal system that is almost entirely driven by local politics, policies, and funding.  The president’s biggest power is his ability to shape the debate around criminal legal policy, not the policy itself.

Biden’s proposal here did nothing to shape that debate. There are lots of ways he could have taken steps to push the discussion in the direction it needs to go, but he disappointingly chose to highlight, once again, marijuana.  That choice will make it harder to move the reform discussion beyond where it has mostly been mired for the past decade.

I am a big fan of so much of Pfaff's work, especially his emphasis on "the numbers," but there is much about this commentary that just does not add up.  For starters, these World Population data of incarceration rates suggests that the US would easily fall out of the top 10 in incarceration rates if we cut our prison population 40% by releasing everyone held for non-violent offenses.  Pfaff has long been eager to say we must not ignore violent offenders when thinking about the problem of mass incarceration.  That is basically right, but dramatic decreases in our use of prison for non-violent offense would still make a very big impact AND his own commentary highlights why this is far more politically achievable than massive cuts to sentences for violent offenders.  (Indeed, there is good reason to hope and expect that much shorter and many fewer prison sentences for non-violent offenses would serve as an essential first step to laying the foundation for reducing the overall severity scale of all our punishments.)  

More generally, Pfaff claims there is an "inability to discuss crimes of violence," but I am seeing plenty of discussion (and political ads) about crimes of violence and especially murder having increased considerably over the last few years.  When violent crime has spiked — which it clearly has and which Pfaff does not discuss — and when many polls indicate many voters are troubled greatly by this spike — which they clearly have and which Pfaff does not discuss — one should not be surprised that politicians are responsive to voter concerns about violent crime in their actions and rhetoric.  Indeed, I think it notable (and encouraging) that some criminal justice reform efforts continue moving forward (at least for non-violent crimes) even when "tough on crime" political conditions seems to be prevalent.

And while I support various reforms to PLRA and AEDPA and qualified immunity, I am not aware of any significant research or evidence that such reform will reduce violence in our communities.  If there was such evidence, these reforms could and likely would become a central element of reform supported by politicians on both sides of the aisle.  There are all sort of good arguments for all sorts of criminal justice reforms, but wishing away the facts of increased violent crime (and increased voter concerns about violent crime) will surely "make things worse for criminal legal reform in the long run," much more than will Prez Biden granting blanket pardons to thousands of marijuana possession offenders. 

"Inflation and the Eighth Amendment"

The title of this post is the title of this new paper recently posted to SSRN and authored by Meara Maccabee, a student at The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by OSU's Drug Enforcement and Policy Center, and here is its abstract:

As inflation pushes the prices of goods higher and higher, the monetary thresholds that separate misdemeanor thefts from felony thefts deflate.  This paper argues that deflated felony thresholds provide courts a unique opportunity to wade into what is typically 'properly within the province of legislatures': sentence proportionality.  Because inflated thresholds are the result of a natural economic event, rather than legislative enactment, courts have more deference to find felony sentences disproportionate when the underlying theft would have constituted a misdemeanor absent inflation.

Extended Final Call for Papers: "Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms"

In this post a few months ago, I highlighted a new call for papers relating to an exciting event I am helping to plan on "Drugs and Public Safety Exploring the Impact of Policy, Policing, and Prosecutorial Reforms."  I am grateful we have already received a number of great proposals, and we have now  extended the closing date for proposals until the end of this month.  Here again is the call, which is available in full at this link:

The Drug Enforcement and Policy Center at the Moritz College of Law at The Ohio State University and the Academy for Justice at the Sandra Day O’Connor College of Law at Arizona State University are organizing a symposium titled “Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms” to examine the public safety impact of marijuana and other modern drug policy reforms.  The conference is committed to exploring, from a variety of perspectives and with the help of a variety of voices, how to better understand and assess the relationship between drug reforms (broadly defined, including clemency policy and criminal justice reform) and public safety (broadly defined, with an emphasis on violent and serious crime).  [The conference will take place at Arizona State University, Phoenix, AZ from March 14-16, 2022.]

Background

In 1996, California kicked off a new state-driven law reform era through a ballot initiative legalizing medical marijuana.  In subsequent decades, as dozens of states legalized marijuana use, various advocates, public officials, and researchers warned about the possibility of dire public safety consequences.  More drug crimes, more general criminality, more drugged driving, and all sorts of other public safety harms were often mentioned as the possible short- or long-term consequence of significant state-level marijuana reforms.

As of summer 2022, there are 37 states with robust medical marijuana regimes and 19 with full adult-use marijuana programs.  The continued support for state-level marijuana reforms seems to reflect, at least in part, the fact that so far, researchers have not documented direct connections between marijuana reforms and adverse public safety outcomes.  Though crime is a growing public concern given the rise in violent crimes in recent years, few advocates or researchers have documented clear connections or correlations between jurisdictions that have reformed their marijuana laws and increases in crimes.

As marijuana reforms have spread, so too has discussion of broader drug reforms such as decriminalization or legalization at both state and local level, as well as relief from drug-war excesses through clemency and expungement.  But given the increasing concern about violent crime, many advocates and lawmakers are wondering whether past and possible future drug policy reforms may be advancing or undermining the broad interest in creating safe and stable communities. As the country moves away from marijuana prohibition, a fully informed discussion of drugs, violence, and public safety is needed now more than ever.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication in Spring of 2024.

Though proposed papers can and should look to explore the relationship between drug reforms and public safety in any number of diverse ways, the conference organizers are particularly interested in explorations of the impact of: (a) legalization of medical and/or adult-use marijuana, (b) drug decriminalization efforts, and (c) back-end relief efforts (e.g., clemency) — on crime and violence, the enforcement of criminal laws, and the operation of criminal justice systems.

Deadlines and Length of Paper

A proposed abstract of no more than 300 words are now due by October 31, 2022.  Abstracts can be submitted to Jana Hrdinova at hrdinova.1@osu.edu.  Accepted researchers will be notified by November 18, 2022.

Participants should plan to have a full draft to discuss and circulate by March 1, 2023.  Papers may range in length from 10,000 words to 25,000 words.  Final papers for publication will be due on August 1, 2023.

Feds urging six months' imprisonment and $200,000 fined for Steve Bannon as punishment following his convictions for criminal contempt of Congress

As detailed in this extended ABC News piece, the "Justice Department is asking a federal judge to sentence Steve Bannon, adviser to former President Donald Trump, to six months in prison and make him pay a $200,000 fine for his conviction on two counts of criminal contempt of Congress, according to a new court filing." Here is more of the basics:

Bannon was found guilty in July of defying a subpoena from the House select committee investigating the Jan. 6 attack on the U.S. Capitol.  He had been subpoenaed by the Jan. 6 panel for records and testimony in September 2021.

Bannon is set to be sentenced on Friday at the D.C. courthouse by federal judge Carl Nichols at 9 a.m.  His lawyers are expected to submit their own sentencing memo Monday.

The Government's 24-page sentencing memorandum is available at this link, and it starts this way:

From the moment that the Defendant, Stephen K. Bannon, accepted service of a subpoena from the House Select Committee to Investigate the January 6th Attack on the United States Capitol (“the Committee”), he has pursued a bad-faith strategy of defiance and contempt.  The Committee sought documents and testimony from the Defendant relevant to a matter of national importance: the circumstances that led to a violent attack on the Capitol and disruption of the peaceful transfer of power. In response, the Defendant flouted the Committee’s authority and ignored the subpoena’s demands.  The Defendant, a private citizen, claimed that executive privilege—which did not apply to him and would not have exempted his total noncompliance even if it had—justified his actions.  Then, on the eve of trial, he attempted an about-face, representing to the Committee that former President Donald J. Trump had waived executive privilege and freed the Defendant to cooperate.  But this proved a hollow gesture; when he realized that his eleventh-hour stunt would not prevent his trial, the Defendant’s cooperative spirit vanished.  Despite the removal of the only purported barrier to his compliance, to this day the Defendant has not produced a single document to the Committee or appeared for testimony.  For his sustained, bad-faith contempt of Congress, the Defendant should be sentenced to six months’ imprisonment—the top end of the Sentencing Guidelines’ range—and fined $200,000—based on his insistence on paying the maximum fine rather than cooperate with the Probation Office’s routine pre-sentencing financial investigation.

UPDATE: Steve Bannon has also today submitted his sentencing memorandum, which can be found at this link. Here is its starting "summary":

The ear of a sentencing judge listens for the note of contrition. Someone was convicted. Did they learn their lesson? This case requires something more. It involves larger themes that are important to every American. Should a person be jailed when the caselaw which sets forth the elements of the crime is outdated? Should a person be jailed for the doing the exact same thing that was done by the highest law enforcement officers in this country, yet they received no punishment? Should a person who has spent a lifetime listening to experts – as a naval officer, investment banker, corporate executive, and Presidential advisor – be jailed for relying on the advice of his lawyers? Should a person be jailed where the prosecutor declined to prosecute others who were similarly situated – with the only difference being that this person uses their voice to express strongly held political views? If the answer to any of these questions is no, then a sentence of probation is warranted. Because we believe that the answer to each of these questions is no, we respectfully ask this Court to impose a sentence of probation, and to stay the imposition of sentence pending appeal.

Might new Justice Jackson create a whole new Court in criminal cases (at least on acquitted conduct)?

The question in the title of this post is a modified version of a question I asked at the end of this lengthy July 2022 post which set out some of my initial thoughts on the SCOTUS criminal justice work during October Term 2021.  Here is what said at that time in that post:

One often hears that every new Justice makes for a whole new Supreme Court.  That aphorism is, of course, technically true; but most folks, myself included, expect new Justice Jackson to approach and vote on issues quite similarly to how retired Justice Breyer did.  That said, Justice Jackson might not track Justice Breyer on some criminal justices issues (such as Apprendi rights), and perhaps she might encourage the Court to take up more or different types of criminal justice cases.  Stay tuned. 

In this Bloomberg Law piece, Jordan Rubin picks up this theme under the headline "Justice Jackson Can Shift High Court’s Crime Docket Post Breyer." Here is how this piece gets started:

Supreme Court Justice Ketanji Brown Jackson will face an early test of whether she can form a new majority in some criminal cases along with Republican-appointed colleagues on issues that cross ideological lines.

Jackson is expected to side with criminal defendants in cases involving sentencing and search and seizure more often than her predecessor, Stephen Breyer, who cast tie-breaking votes for the government.  But to make a majority on the court dominated by six Republican appointees, criminal defendants may need to attract not only Jackson and the other two Democratic appointees but two Republican appointees as well.

“Justice Jackson is going to bring all of her experiences in the criminal legal system to the table — and to conference — and I anticipate her voice and vote having added gravitas on criminal law, criminal procedure, and federal sentencing,” said Devi Rao, director of the MacArthur Justice Center’s Washington office and deputy director of its Supreme Court and Appellate Program.

“She’ll be more than just the ‘junior Justice’ when it comes to these issues,” Rao said of the former public defender who represented Guantanamo detainees and was a sentencing commissioner at the center of reducing drug punishments.

An upcoming test of a potential new criminal coalition comes as the justices prepare to consider taking a case that asks whether judges can punish defendants for conduct they’re acquitted of at trial.

The rest of the Bloomberg article discusses a case that should be familiar to readers, namely McClinton v. US, in which the Seventh Circuit affirmed a 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case (and I also have this amicus brief filed).  The government has now received three extensions on their response to the cert petition, so we likely will not have a cert decision until next month (if not later).

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• "Acquitted. Then Sentenced."
• Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing? 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements

Jury recommends LWOP sentence for Parkland school shooter Nikolas Cruz

As reported in this NPR piece, a state "jury has recommended that the shooter who killed 17 people at Marjory Stoneman Douglas High School in Parkland, Fla., be sentenced to life in prison."  Here is more:

Nikolas Cruz, 24, pleaded guilty last year to 17 charges of premeditated murder and 17 counts of attempted murder. The question facing jurors now was whether Cruz would spend the rest of his life in prison or be sentenced to death. Cruz carried out the massacre on Valentine's Day in 2018. He was 19 at the time, and had been expelled from the school. He entered a school building through an unlocked side door and used an AR-15-style rifle to kill 14 students and three staff members, as well as wound 17 others.

Jurors began deliberations on Wednesday. Late that day, the jury asked to see the murder weapon. On Thursday morning, the jury said it had come to a recommendation on a sentence, about 15 minutes after the jurors were able to examine the weapon, according to The Associated Press.

Prosecutors had pushed for the death sentence. In closing arguments Tuesday, lead prosecutor Mike Satz told jurors that Cruz had hunted his victims during his siege of the school, returning to some of those he'd wounded to shoot them again, and kill them....

In laying out their defense, lawyers for Cruz presented testimony from counselors and a doctor who say the defendant suffers from a fetal alcohol spectrum disorder, a condition that they argued affects his reasoning and behavior. Witnesses testified that his birth mother, Brenda Woodard, had abused alcohol and cocaine while she was pregnant with him....

Cruz's rampage is the deadliest mass shooting to go to trial in the U.S., according to The Associated Press. In other attacks in which 17 or more people were killed, the shooter was either killed by police or died by suicide. Still awaiting trial is the suspect in the 2019 shooting of 23 people at a Walmart in El Paso, Texas.

Some prior related posts:

• Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz
• In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida
• "Nikolas Cruz’s birth mom had a violent, criminal past. Could it help keep him off Death Row?" 
• A year after tragedy, taking stock of the agony (and wondering about the costs) already surrounding the capital prosecution of Parkland shooter Nikolas Cruz
• Father of Parkland school shooting victim urges state prosecutors to abandon capital prosecution of shooter
• Will guilty pleas and apology reduce odds that Nikolas Cruz is sentenced to death for Parkland school mass murder? 
• What is the price (for victims and taxpayers) of a four-month(!) capital trial for Parkland mass murderer Nikolas Cruz? 
• Defense beginning mitigation case in the capital trial of Parkland shooter Nikolas Cruz
• Notable developments as defense rests in capital trial of Parkland school shooter 

Notable new research on modern operation and impact of Three Strikes law in California

I just came across this notable new report from the California Policy Lab released a couple of months ago titled simply "Three Strikes in California." Here is the 45-page report's listing of "Key Findings" (with bolding in the original):

• Three-Strikes enhancements affect a large share of the currently incarcerated prison population, but a smaller share of admissions to prison.  Less than one-third of prison admissions since 2015 involve a strike enhancement, with most receiving a doubled-sentence enhancement and a smaller percentage receiving a third-strike enhancement. At a given point in time however, individuals with strike enhancements constitute a larger proportion of the incarcerated population because they serve longer sentences

• Nearly 65% of admissions to prison with a doubled-sentence enhancement are for a non-violent, non-serious offense.

• Given the longer sentences imposed for serious or violent offenses, the reverse is true for people currently incarcerated: approximately 71% of those with doubled-sentence enhancements were convicted of a serious or violent offense.

• Black individuals are heavily over-represented among people serving sentences with third-strike enhancements, and to a lesser degree, with doubled-sentence enhancements. Overrepresentation exists relative to the racial/ ethnic composition of the prison population, and overwhelmingly relative to the racial/ethnic composition of the resident population of California.

• Judicial and prosecutorial discretion can mitigate the severity of strike enhancements.  The data suggests that judges and prosecutors may mitigate the severity of doubled-sentence enhancements by choosing (or accepting) lower sentence length options, but the effect of discretion on overall sentence length is modest.

• The use of strike enhancements varies widely across counties.  While third-strike sentences are considerably more rare today than in past years and the ordering across counties has changed over time, high-use and low-use counties documented in the early 2000s are largely similar in terms of rank today.

• The implementation of Three Strikes does not explain statewide declines in crime over time.  Early evaluations claiming large impacts on crime fail to account for national crime trends and also suffer from methodological flaws. More recent research suggests that Three Strikes may have a modest deterrent effect on relatively less serious crime, but likely does not account for the declines in California’s crime rates beginning in the mid-1990s.  Crime fell contemporaneously throughout the nation, and comparisons of crime trends in California to states that did not pass Three-Strikes laws reveal very similar trends over the subsequent two decades.

A sadder Pennsylvania variation on Going in Style with elderly, ill, repeat bank robber

Hollywood has now twice made the movie Going in Style about a group of elderly gentlemen facing who decide to become bank robbers when facing hard financial times.  I recall getting a big kick out of the 1979 version of the movie as a kid, and I did not think quick as much about the 2017 version as an adult.  This movie came to my mind upon reading this local sad press piece, headlined "Pa. man says he robbed bank to stay in prison, not be an imposition to family," about a recent Pennsylvania state sentencing:

A 60-year-old man says he robbed a bank in Lycoming County so he would remain in jail and not burden the family with whom he has not had contact in 30 years with his medical bills. Robert A. Jones, after pleading guilty to a robbery charge Monday, told county Judge Ryan Tira his health is declining.

The judge expressed concern about Jones’ mental health but proceeded to sentence him to 45 to 90 months in state prison in accordance with the plea agreement. Restitution of $2,000 also was ordered.

Police recovered $3,000 of the $5,000 taken in the Sept. 6 robbery when Jones was arrested the next day at the halfway house in the Harrisburg area where he was living. When authorities confronted with a search warrant, Jones is alleged to have responded: “I have nothing to hide, this is my final chapter.” He was within two months of being released from the halfway house, it was noted in court.

“It’s an unfortunate situation,” his public defender Howard B. Gold said. “He prefers to spend the remaining years of his life in state prison.” Tira said he could not relate to Jones’ decision. Jones had been paroled on June 28, 2021, from the 15- to 30-year robbery sentence imposed in 2008 in Lackawanna County. He claimed when arrested last month he had robbed two dozen banks since the 1990s. Records confirm numerous charges in state and federal courts.

The Sept. 6 robbery was at the Jersey Shore State Bank office in Jersey Shore. The robber was wearing a surgical mask and a yellow rain jacket when he handed a note to a teller that stated, “this is a robbery” and then told her to “just remember your training.” He was handed $5,000 in $100, $50 and $20 bills and then left the bank.

Jones was observed on surveillance video running away from the bank and while cutting through a parking lot removing a yellow jacket. Shortly after he disappeared, a 1999 Toyota Camry appeared and a video showed a yellow object in the back seat. The license plate was visible so police were able to determine the car was owned by Jones....

Surveillance video showed Jones removing a black bag from the Camry in the halfway house parking lot and taking it inside. He was wearing clothing similar to that of the robber. Found inside the vehicle, police said, was a yellow rain jacket, beige colored hat, medical mask and more than $3,000 in currency.

Jones told Tiadaghton Valley Regional Police Officer Justin Segura this was the end of the road, it was a call for help and he had no intent to harm anyone in the bank, the arrest affidavit states. The state Parole Board has lodged a detainer against Jones so could face more court action.

Taking account of extreme sentences under "habitual offender" laws in Mississippi and Louisiana

Tana Ganeva has this lengthy new piece at The Appeal which details the impact and import of repeat offender laws in two southern states. The full title of this piece previews in coverage: "'Habitual Offender' Laws Imprison Thousands for Small Crimes — Sometimes for Life: Data obtained by The Appeal show nearly 2,000 people in Mississippi and Louisiana are serving long — and sometimes life — sentences after they were labeled “habitual offenders." But most are behind bars for small crimes like drug possession." I recommend the full piece and here are some excerpts:

The Appeal took a deeper look at Louisiana and Mississippi, states that changed their laws in 1994 or 1995 and now have some of the highest rates of incarcerated people in the country.  The Appeal sent freedom of information requests to both the Mississippi Department of Corrections and Louisiana Department of Public Safety and Corrections for data on people serving 20-year-plus sentences and, where possible, information regarding whether their sentences had been enhanced by a habitual offender statute.  We broke the data down by race, crime, time served, and sentence. In total, datasets suggest there are close to 2,000 people currently serving long sentences enhanced by habitual offender statutes in these two states.

A small number of these people in these two states committed serious crimes.  But most are serving 20-plus years primarily because of habitual offender status, where the triggering offense was drug possession, drug sale, illegal gun possession, or another crime besides murder or rape.  Scores of people are serving virtual or literal life sentences for nonviolent drug possession....

In the mid-1990s, Mississippi instituted some of the most restrictive habitual offender laws in the country and virtually did away with parole for repeat offenders....  According to data analyzed by The Appeal, as of August 4, 2021, there were nearly 600 people in Mississippi who were serving 20 years or more with no parole date and were considered habitual offenders....  In Mississippi, 75 percent of “habitual offenders” are Black, while 25 percent are white. (Other racial groups make up a negligible number.) ...

The majority of habitual offender convictions analyzed by The Appeal are linked to possession of drugs, possession of firearms, or contraband in prison. In the most extreme cases, multiple people convicted of drug crimes were given virtual life sentences because of their habitual offender status.  Perry Armstead is serving 63 years for five charges of cocaine possession and sales. Keith Baskin is serving 60 years for possession of cannabis with intent to distribute. Timothy Bell is serving 80 years after being convicted of possessing a firearm as a felon and selling meth twice. Malcolm Crump is serving 56 years for selling meth on three occasions. Paul Houser got 60 years for meth. Anthony Jefferson got 60 years for possession of cannabis with intent to distribute....

There are nearly 900 people serving sentences longer than 20 years in Louisiana because of habitual offender statutes who aren’t eligible for parole. (Overall, there are more than four thousand people serving life without parole in the state.)

According to data acquired through a freedom of information request, the most serious crimes are in the minority. Less than 3 percent of those imprisoned due to habitual offender status were convicted of first-degree murder.  Slightly less than 5 percent are serving time for second-degree murder. Almost 6 percent are serving time for rape. Meanwhile, 12.6 percent are serving 20-plus years because of habitual offender statutes triggered by a drug crime.  Of those serving decades for drug crimes, 49 people were convicted for possession, 34 for possession with intent to distribute, and 31 for distribution.

Kentucky parole board orders school shooter to serve out the remainder of his life sentence

In this post last month, titled "Grappling with parole possibilities a quarter-century after horrific school shooting by young teen," I flagged an article discussing the first modern teen school shooter who was due to receive parole consideration 25 years after his crime.  This new lengthy CNN piece reports on the results of the process, and here are excerpts:

The Kentucky Parole Board on Monday denied parole to Michael Carneal, a man serving a life sentence for killing three students in a school shooting in 1997 when he was 14 years old. The ruling by the full parole board to have Carneal serve out his sentence comes after a two-person panel failed to reach a unanimous decision about Carneal’s release last week.

“Due to the seriousness of your crime — your crime involved a weapon, you had lives taken, and the seriousness, again — it is the decision of the parole board today to allow you to serve out the remainder of your sentence,” Parole Board Chairperson Ladeidra Jones said Monday. Carneal, who attended the hearing via video conference, responded, “Yes ma’am,” and stepped out of frame.

Carneal has served nearly 25 years in prison for opening fire at Heath High School in Paducah on December 1, 1997, killing the three students and wounding five others just after the students’ prayer circle in the lobby said “Amen.” Carneal pleaded guilty to three counts of murder, five counts of attempted murder, and a count of first-degree burglary. While he was sentenced to life in prison, Kentucky law requires that minors be considered for parole after 25 years.

Many survivors and families of the victims were opposed to Carneal’s requested release.  But now 39, Carneal pleaded his case to members of the parole board in a hearing last week, saying that if he were released, he planned to live with his parents, continue undergoing mental health treatment and eventually get a job.

Carneal’s public defender, Alana Meyer, asked the board to remember Carneal was a teenager when he opened fire, was suffering from undiagnosed paranoid schizophrenia and was struggling with bullying and the transition from middle to high school. In the quarter century since, Carneal “has committed himself to his mental health treatment, to participating in available educational and vocational programs, and to being a helpful and positive person within the prison,” Meyer wrote....

Carneal told the panel he has received multiple mental health diagnoses and has long heard voices in his head – including on the day of the shooting.  He said that before opening fire he heard a voice telling him to “pick up the gun out of the backpack and hold it in front of me and shoot.”

“There’s no justification or excuse for what I did,” Carneal said. “I’m offering an explanation. I realize there’s no excuse for what I did.”  Carneal said he still hears voices in his head, but now knows when to ignore them.

A colleague has informed me that there is litigation in lower courts contesting the legality of the Kentucky parole board converting a life with parole sentence into a life without parole sentence via this kind of "serve out" order.  

Another look at Oregon's drug decriminalization efforts now a few years in

A have done periodic posts (some linked below) over the last couple of years based on press accounts of Oregon's drug decriminalization efforts after state residents in Fall 2020 passed Measure 110 to makes possession of small amounts of various illicit drugs punishable by only a civil citation.  This new AP article, headlined "After rocky start, hopes up in Oregon drug decriminalization," provides the latest "updates from the front."  Here are excerpts:

Two years after Oregon residents voted to decriminalize hard drugs and dedicate hundreds of millions of dollars to treatment, few people have requested the services and the state has been slow to channel the funds.

When voters passed the state’s pioneering Drug Addiction Treatment and Recovery Act in 2020, the emphasis was on treatment as much as on decriminalizing possession of personal-use amounts of heroin, cocaine, methamphetamine and other drugs.

But Oregon still has among the highest addiction rates in the country. Fatal overdoses have increased almost 20% over the previous year, with over a thousand dead. Over half of addiction treatment programs in the state lack capacity to meet demand because they don’t have enough staffing and funding, according to testimony before lawmakers.

Supporters want more states to follow Oregon’s lead, saying decriminalization reduces the stigma of addiction and keeps people who use drugs from going to jail and being saddled with criminal records. How Oregon is faring will almost certainly be taken into account if another state considers decriminalizing.

Steve Allen, behavioral health director of the Oregon Health Authority, acknowledged the rocky start, even as he announced a “true milestone” has been reached, with more than $302 million being sent to facilities to help people get off drugs, or at least use them more safely. “The road to get here has not been easy. Oregon is the first state to try such a bold and transformative approach,” Allen told a state Senate committee Wednesday.

One expert, though, told the lawmakers the effort is doomed unless people with addictions are nudged into treatment. “If there is no formal or informal pressure on addicted people to seek treatment and recovery and thereby stop using drugs, we should expect continuing high rates of drug use, addiction and attendant harm,” said Keith Humphreys, an addiction researcher and professor at Stanford University and former senior adviser in the White House Office of National Drug Control Policy.

Of 16,000 people who accessed services in the first year of decriminalization, only 0.85% entered treatment, the health authority said. A total of 60% received “harm reduction” like syringe exchanges and overdose medications. An additional 15% got help with housing needs, and 12% obtained peer support....

Under the law, people receive a citation, with the maximum $100 fine waived if they call a hotline for a health assessment.  But most of the more than 3,100 tickets issued so far have been ignored, Oregon Public Broadcasting reported. Few people have dialed the hotline.

Tera Hurst, executive director of Oregon Health Justice Recovery Alliance, which is focused on implementing Measure 110, said coerced treatment is ineffective. Hurst said it’s important to focus on “just building a system of care to make sure that people who need access can get access.”  Allen called the outlay of million of dollars — which come from taxes on Oregon’s legal marijuana industry — a “pivotal moment.”...

Centro Latino Americano, a nonprofit serving Latino immigrant families, plans to use its $4.5 million share to move treatment services to a bigger space and hire more staff, said manager Basilio Sandoval.  “Measure 110 makes it possible for us to provide this service free of charge,” Sandoval said. “This allows us to reach people we could not serve previously because of a lack of insurance.”

Scott Winkels, lobbyist for the League of Oregon Cities, said residents are running out of patience.  “People are going to need to see progress,” Winkels said.  “If you’re living in a community where you’re finding needles, how many times do you need to see a needle in a park before you lose your cool?”

Some prior related posts:

• Spotlighting many challenges "winning the peace" after drug decriminalization reform in Oregon 
• Checking in with Oregon's drug decriminalization effort one year in
• Different perspectives one year after Measure 110 took effect decriminalizing low-level drug possession in Oregon

Interesting report on the echoes of the Supreme Court's recent Ruan decision

As noted in this post last week, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law has this great panel discussion scheduled for tomorrow to discuss various aspects of the Supreme Court's work last term in Ruan v. United States.  (Folks can and should register here for this event.)  Coincidently, CBS News has this lengthy new piece discussing the case's impact under the headline "Doctors rush to use Supreme Court ruling to escape opioid charges."  Here are excerpts:

Dr. Nelson Onaro conceded last summer that he'd written illegal prescriptions, although he said he was thinking only of his patients. From a tiny, brick clinic in Oklahoma, he doled out hundreds of opioid pills and dozens of fentanyl patches with no legitimate medical purpose. "Those medications were prescribed to help my patients, from my own point of view," Onaro said in court, as he reluctantly pleaded guilty to six counts of drug dealing. Because he confessed, the doctor was likely to get a reduced sentence of three years or less in prison.

But Onaro changed his mind in July. In the days before his sentencing, he asked a federal judge to throw out his plea deal, sending his case toward a trial. For a chance at exoneration, he'd face four times the charges and the possibility of a harsher sentence.

Why take the risk? A Supreme Court ruling has raised the bar to convict in a case like Onaro's. In a June decision, the court said prosecutors must not only prove a prescription was not medically justified ― possibly because it was too large or dangerous, or simply unnecessary ― but also that the prescriber knew as much. Suddenly, Onaro's state of mind carries more weight in court. Prosecutors have not opposed the doctor withdrawing his plea to most of his charges, conceding in a court filing that he faces "a different legal calculus" after the Supreme Court decision.

The court's unanimous ruling complicates the Department of Justice's ongoing efforts to hold irresponsible prescribers criminally liable for fueling the opioid crisis. Previously, lower courts had not considered a prescriber's intention. Until now, doctors on trial largely could not defend themselves by arguing they were acting in good faith when they wrote bad prescriptions. Now they can, attorneys say, although it is not necessarily a get-out-of-jail-free card. "Essentially, the doctors were handcuffed," said Zach Enlow, Onaro's attorney. "Now they can take off their handcuffs. But it doesn't mean they are going to win the fight."

The Supreme Court's decision in Ruan v. United States, issued June 27, was overshadowed by the nation-shaking controversy ignited three days earlier, when the court erased federal abortion rights. But the lesser-known ruling is now quietly percolating through federal courthouses, where it has emboldened defendants in overprescribing cases and may have a chilling effect on future prosecutions of doctors under the Controlled Substances Act.

In the three months since it was issued, the Ruan decision has been invoked in at least 15 ongoing prosecutions across 10 states, according to a KHN review of federal court records. Doctors cited the decision in post-conviction appeals, motions for acquittals, new trials, plea reversals, and a failed attempt to exclude the testimony of a prescribing expert, arguing their opinion was now irrelevant. Other defendants have successfully petitioned to delay their cases so the Ruan decision could be folded into their arguments at upcoming trials or sentencing hearings.

David Rivera, a former Obama-era U.S. attorney who once led overprescribing prosecutions in Middle Tennessee, said he believes doctors have a "great chance" of overturning convictions if they were prohibited from arguing a good faith defense or a jury was instructed to ignore one. Rivera said defendants who ran true pill mills would still be convicted, even if a second trial was ultimately required. But the Supreme Court has extended a "lifeline" to a narrow group of defendants who "dispensed with their heart, not their mind," he said.

"What the Supreme Court is trying to do is divide between a bad doctor and a person who might have a license to practice medicine but is not acting as a doctor at all and is a drug dealer," Rivera said. "A doctor who is acting under a sincerely held belief that he is doing the right thing, even if he may be horrible at his job and should not be trusted with human lives ― that's still not criminal."...

To defense attorneys, the unanimous ruling sent an unambiguous message. "This is a hyperpolarized time in America, and particularly on the court," Enlow said. "And yet this was a 9-0 ruling saying that the mens rea ― or the mental state of the doctor ― it matters."

Some prior related posts:

• SCOTUS unanimously rejects federal convictions for opioid docs in Ruan, with majority stressing mens rea requirement 
• "Ruan v. United States: Implications for Criminal Law, Health Care, and Beyond"

"Ruan v. United States: Implications for Criminal Law, Health Care, and Beyond"

The title of this post is the title of this great panel discussion hosted by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law which is scheduled for midday on Tuesday, September 20.  Folks can and should register here for this event, which is described this way on this event page:

What must prosecutors prove about a defendant’s mental state in order to convict them of unauthorized distribution of controlled substances under federal drug laws?  In the case of Ruan v. United States, the Supreme Court ruled that the Government must prove the defendant knowingly or intentionally acted in an unauthorized manner.  But because the defendants in this case were medical doctors involved in questionable opioid prescribing practices, the case has generated an array of public policy questions.  The Government, stressing opioid overdose deaths and the broad harms of the opioid epidemic, argued the law should be interpreted to apply an objective standard for criminal liability.  The doctors, and many amici briefs, argued that an objective standard could criminalize merely careless prescribing and could deter responsible doctors from trying any novel medical therapies that had not yet been accepted by traditional medical practice.

Join the Drug Enforcement and Policy Center and our panel of experts as they discuss the doctrines and broader policies involved in the Ruan case and the implications for criminal law and beyond.

Panelists:

• Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center
• Kelly Dineen, Associate Professor of Law, Director of the Health Law Program, Creighton University School of Law
• Martin Fried, Clinical Assistant Professor of Internal Medicine, Wexner Medical Center, The Ohio State University
• Jennifer Oliva, Professor of Law, UC Hastings Law

Moderator:

Patricia Zettler, Associate Professor of Law, Ohio State University Moritz College of Law

Making the case for jury nullification in response to criminalization of abortion

LawProfs Peter Sali and Guha Krishnamurthi have this notable new Inquest piece talking up jury nullification as having "a role to play in securing reproductive rights" in the wake of the Supreme Court reversal of Roe.  The piece is fully titled "Nullifying Dobbs: Jurors’ conscientious refusal to convict people charged for violating abortion bans is perfectly legal — and what justice demands." (The Inquest piece is a shorter exposition of this essay on SSRN titled "Nullification in Abortion Prosecutions: An Equilibrium Theory.")  Here is an excerpt:

[W]e expect the effect of nullification on abortion prosecutions to be twofold.  First, it will reduce the range of cases that will be brought.  Prosecutors fearing the possibility of objectors on the jury will avoid bringing the most unpopular charges.  Second, when instances where prosecutors do bring charges, nullification may change the outcome of some cases.  This becomes more likely as criminal penalties become more obviously unjust.

There is some evidence beyond idle speculation of the above potential for nullification.  Marijuana prosecutions are a relevant precedent.  In roughly the past decade, public support for the criminal prohibition of marijuana has cratered — dropping by nearly half.  Today, only about a third of Americans approve of such laws.  Over the same period, federal prosecutions of marijuana cases likewise collapsed — dropping by over 86%.  We think that this was not a coincidence.  As with abortions, most of the possible prosecutions for marijuana possession simply became extremely unpopular.  Perhaps understanding this, prosecutors chose to devote their resources elsewhere, rather than risk losing factually solid cases because of the jury’s hostility to the law itself....

Nullification cannot and will not fix everything.  Nullification itself comes at the end of the criminal process.  The stress, anxiety, and fear of the criminal process can be overwhelming for defendants, and the consequences of being investigated and prosecuted — such as stigmatization and financial stress — can be devastating.  Nullification cannot directly alleviate those harms.  Thus, in some instances, prosecutors may bring charges despite the potential for nullification precisely to send a message through the harsh criminal process.  But we think that the equilibrium effect of nullification will be to reduce the number of cases prosecutors bring. And when unpopular cases are brought, nullification can avert the harshest part of the criminal process — the punishment....

Nullification is, at best, a shield against the most outrageous state actions — a way for the community to stand in the way of punishment.  The case of abortion is no different. Yet in this arena, unlike in other areas of criminal law, state lawmakers seem committed to outrageous acts — as evaluated by the standards of ordinary Americans.  Here, then, nullification may make a difference, at least until law moderates to reflect the values of the governed.

I have flagged the passage here discussing declining federal marijuana prosecutions in part because I co-wrote an article last year on this topic, "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition."   As explained in that article, a sharp decline in marijuana seizures at the southern US border (as states have legalized local grows) likely most directly explains the sharp decline of federal marijuana prosecutions.  Still, the disinclination of federal prosecutors to go after state-legalized marijuana activities — especially during the Trump Administration when many DOJ officials were clearly not so keen on marijuana reform — likely has reflected the reality that more and more citizens may be less and less likely to support using criminal laws to punish "responsible" marijuana activity.

A few prior related posts:

• What might be crime and punishment echoes if Supreme Court overturns Roe v. Wade?
• Without Roe, what does sentencing law and policy look like surrounding criminalized abortions? 
• Continuing to scratch the sentencing surface if Roe is overturned and abortions are criminalized 
• SCOTUS overrules Roe with Dobbs ruling, raising new criminal justice and sentencing issues
• A focus on local prosecutors as abortions now are subject to broad criminalization after Roe's reversal
• Reviewing and reflecting on what criminalization of abortion could and will mean 

Spotlighting disparities in voter fraud prosecutions and punishments

The New York Times has this lengthy new piece highlighting that the uneven application of justice around the country when it comes to cases of voter fraud.  The full headline of this piece highlights its themes: "In Voter Fraud, Penalties Often Depend on Who’s Voting: Cases in Florida and a survey of prosecutions nationally indicate that despite the furor over voter fraud, prosecutions remain exceedingly rare and penalties vary wildly."  Here is how this piece starts:

After 15 years of scrapes with the police, the last thing that 33-year-old Therris L. Conney needed was another run-in with the law. He got one anyway two years ago, after election officials held a presentation on voting rights for inmates of the county jail in Gainesville, Fla.  Apparently satisfied that he could vote, Mr. Conney registered after the session, and cast a ballot in 2020.  In May, he was arrested for breaking a state law banning voting by people serving felony sentences — and he was sentenced to almost another full year in jail.

That show-no-mercy approach to voter fraud is what Gov. Ron DeSantis, a Republican, has encouraged this year during his re-election campaign.  “That was against the law,” he said last month about charges against 20 other felons who voted in Florida, “and they’re going to pay a price for it.”

But many of those cases seem to already be falling apart, because, like Mr. Conney, the former felons did not intend to vote illegally.  And the more typical kind of voter-fraud case in Florida has long exacted punishment at a steep discount.

Last winter, four residents of the Republican-leaning retirement community The Villages were arrested for voting twice — once in Florida, and again in other states where they had also lived. Despite being charged with third-degree felonies, the same as Mr. Conney, two of the Villages residents who pleaded guilty escaped having a criminal record entirely by taking a 24-hour civics class. Trials are pending for the other two.

Florida is an exaggerated version of America as a whole.  A review by The New York Times of some 400 voting-fraud charges filed nationwide since 2017 underscores what critics of fraud crackdowns have long said: Actual prosecutions are blue-moon events, and often netted people who didn’t realize they were breaking the law.

Punishment can be wildly inconsistent: Most violations draw wrist-slaps, while a few high-profile prosecutions produce draconian sentences.  Penalties often fall heaviest on those least able to mount a defense.  Those who are poor and Black are more likely to be sent to jail than comfortable retirees facing similar charges.

Noticing surprisingly low federal guideline range for sexual abuse of prisoners

For a variety of reasons, it can be all too easy to conclude that all of the federal sentencing guidelines are set way too high.  After all, federal judges impose sentences below the guidelines in more than half of all cases (see Table 8), and they do so even more frequently in certain child porn, drug and economic cases (see Table 10).  But this AP report on a notable recent federal sentencing in California highlights that there can be cases in which federal judges conclude the applicable guideline is way too low.  The piece is headlined "Chaplain who sexually abused inmates gets 7 years in prison," and here are just some of the details:

Behind a closed chapel office door inside a federal women’s prison in California, a chaplain forced inmates seeking his spiritual guidance to have sex with him, exploiting their faith and their powerlessness behind bars for his own gratification, prosecutors said.

James Theodore Highhouse was sentenced Wednesday to seven years in prison — more than double the recommended punishment in federal sentencing guidelines.  U.S. District Judge Haywood S. Gilliam Jr. said the guidelines, which call for a sentence of less than three years, “seriously underestimate the seriousness” of Highhouse’s conduct. “It’s hard to come up with the right words to describe how egregious an abuse of these victims this was,” Gilliam said.

Highhouse is among five workers charged in the last 14 months with sexually abusing inmates at the Federal Correctional Institution in Dublin, California, and the first to reach the sentencing phase of his case.... Highhouse must register as a sex offender once he’s released from prison, Gilliam said.

Highhouse, who was arrested in January and pleaded guilty in February, would tell women he abused at the Bay Area lockup, that everyone in the Bible had sex and that God wanted them to be together, prosecutors said.  An Army veteran, he pressured one inmate into intercourse on Veterans Day by telling her she needed to serve her country and on Thanksgiving by telling her she needed to show her gratitude for him, prosecutors said.

While Highhouse, 49, was charged only with abusing one inmate and lying to authorities, prosecutors say he engaged in predatory conduct with at least six women from 2014 to 2019 — including one he counseled at a veterans hospital where he worked before joining the federal Bureau of Prisons, where allegations were routinely ignored.  “Highhouse ruined my life — he truly did,” one inmate said in a victim impact statement. “I don’t even go to Church anymore because of him.  I have no trust in the Church and really, I don’t trust anyone because of what he did.”

Highhouse, enabled by a toxic culture of abuse and coverups at the prison, warned victims not to report him, telling one of them “no one will believe you because you’re an inmate, and I’m a chaplain,” prosecutors wrote in a sentencing memorandum. At the same time, prosecutors wrote, a prison counselor would rail about inmates “snitching” on employees, suggesting they instead “tell Trump about it,” referring to then-President Donald Trump.

Prosecutors had sought a 10-year prison sentence.  His lawyers asked for two years, the low end of the federal guidelines, which called for a sentence of 24 to 30 months.  Gilliam’s seven-year sentence matched the recommendation of probation officers who conducted Highhouse’s pre-sentence investigation....

All sexual activity between a prison worker and an inmate is illegal. Correctional employees enjoy substantial power over inmates, controlling every aspect of their lives from mealtime to lights out, and there is no scenario in which an inmate can give consent.... Highhouse pleaded guilty on Feb. 23 to two counts of sexual abuse of a ward, two counts of abusive sexual contact and one count of making false statements to federal agents.

All of the charges stem from allegations Highhouse repeatedly abused a female prisoner over a nine-month span in 2018 and 2019. That woman said in a victim impact statement that she cried herself to sleep after testifying before a grand jury about Highhouse’s abuse....

Other allegations against Highhouse, previously kept quiet by Dublin officials, came to light during the investigation, prosecutors said....  In May, an inmate now incarcerated at another federal prison facility reported that Highhouse raped her multiple times in his chapel office after she sought him out for counseling, prosecutors said.

There are many disconcerting and notable aspects of this story, but I am still struck that a prison official/chaplain can sexually abuse a prisoner repeatedly and yet only face a guideline sentencing range of 24 to 30 months.  That range is, generally speaking, well below the guideline ranges typically facing lower-level drug offenders and lower-level fraudsters.