Friday, February 23, 2024

"A Comprehensive Analysis of the Effect of Crime-Control Policies on Murder"

The title of this post is the title of this recent paper authored by Carlisle Moody that I just found via SSRN. Here is the paper's abstract:

This study investigates the effects of most of the major firearm and crime control policies on murder. We use two-way fixed-effects models based on state-level panel data from 1970-2018.  We include a comprehensive list of relevant policy variables to control for their influence in determining the effect of each.  We do a specification search using four commonly used econometric methods to estimate three models of the crime equation. A Bonferroni correction is used to control for false rejections.  A robustness check using new difference-in-differences estimators confirms the results.  We find that, with the possible exception of constitutional carry laws, no firearm policy can be shown to have a significant long-run effect on murder.  However, we find that the traditional policies of prison incarceration and police presence significantly reduce murder in the long run.  We also find that executions have no significant long-run effect on murder.  Finally, there is considerable evidence that three-strikes laws increase murder in the long run.

February 23, 2024 in National and State Crime Data, Offense Characteristics | Permalink | Comments (3)

Thursday, February 22, 2024

"Decriminalizing Condemnable Conduct: A Miscalculation of Societal Costs and Benefits"

The title of this post is the title of this new paper authored by Paul Robinson and Jeffrey Seaman now available via SSRN. Here is its abstract:

Criminal law distinguishes itself from other bodies of law by focusing on conduct the community sees as sufficiently condemnable to deserve stigmatization and punishment.  Unfortunately, a number of recent practices serve to effectively decriminalize conduct even though the community sees it as criminally condemnable.  This Article examines this understudied phenomenon, with an assessment of the societal costs and benefits from such decriminalizations.

Decriminalization can occur through a variety of mechanisms.  Prosecutors or other local officials rejecting legislative criminalization decisions can effectively decriminalize by prohibiting arrest or prosecution of certain offenses – e.g., drug possession, lower-level theft, domestic violence, immigration offenses – or of offenses committed by certain groups – e.g., rioters or statue vandals motivated by a cause the officials support.  State legislators and even voters in state referendums can (often unknowingly) effectively decriminalize conduct that the community sees as criminally condemnable – e.g., supporting a public referendum to reduce the grade of lower-level theft without realizing that, because of other provisions, it effectively decriminalizes the conduct.

The Article identifies four common motivations for such decriminalizations.  First, the decriminalization may come from an anti-justice motivation, where the decriminalizer believes that crime ought to be dealt with as a medical, mental health, or social services issue, rather than through the justice system.  Second, the decriminalization may be motivated by a desire to reduce the sanctions that would otherwise be imposed upon a group seen as “oppressed.” Third, many decriminalizers see themselves as having superior moral judgment about what should and should not be seen as criminally condemnable.  Finally, some decriminalizers believe that their locale, rather than the larger jurisdiction, ought to have criminalization-decriminalization power even though the state or federal constitution allocates that authority otherwise.  Decriminalizers may be motivated by any one or combination of these motivations.

After reviewing the societal benefits that are claimed to follow from the various justifications for decriminalizing what the community sees as condemnable, the Article examines the societal costs, including the loss of deterrence from the announced policy, the loss of incapacitation of repeat offenders, the reduction in the criminal law’s moral credibility by refusing to treat as criminal conduct that the community sees as criminally condemnable, and the reduction in the criminal justice system’s legitimacy when ideological bias is seen as influencing prosecution decisions.  Perhaps the most unfortunate societal cost is that the resulting increases in crime are disproportionately borne by vulnerable minority communities, even though many decriminalizers claim to be motivated by a desire to help those same communities.

On the other hand, the societal costs of such decriminalizations also apply in reverse situations of over-criminalization.  To avoid those societal costs, the criminal law must enlarge its current justification and excuse defenses, as well as mitigations, to reflect the greater breadth that empirical research shows that ordinary community members would support, which in many instances provides defenses even broader than the common modern formulations taken from the Model Penal Code.  However, that expansion of defenses ought not extend to ideologically driven excuses like “rotten social background,” as some have advocated, usually for the same motivations that drive improper decriminalizations.

This same societal cost-benefit analysis also means that just as criminally condemnable conduct should not be decriminalized, conduct that is no longer criminally condemnable should be decriminalized if the criminal law is to maintain its moral credibility and legitimacy.  For example, adultery ought to be officially decriminalized where it remains an offense, and, of more immediate relevance, private marijuana use ought to be decriminalized as soon as community views have shifted to the point that it is no longer seen as criminally condemnable, a shift that has already occurred in much of the country.

Ensuring that the criminal law tracks society’s criminalization-decriminalization judgements should not be controversial in a democratic society, and this Article argues for a fair and consistent application of that principle to all areas of criminal law.

February 22, 2024 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, February 21, 2024

"Going Federal, Staying Stateside: Felons, Firearms, and the ‘Federalization’ of Crime"

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

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers.  Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity.  Yet, no one has obtained the state-court data needed to substantiate these comparisons.  This Article fills that gap with an examination of the crime of being a felon in possession of a firearm, an offense that now accounts for nearly 10% of the federal criminal docket.

The Article makes three main contributions to the literature.  First, it shows how the literature’s claims about the superiority of federal prosecutions (compared to state ones) are rarely substantiated by data about actual state court prosecutions.  In essence, the literature considers only the cases that went federal, not the far more numerous cases that could have gone federal yet stayed in state court.  Second, using a novel case study of all the federal and state felon-in-possession prosecutions in one of the nation’s largest counties — Alameda County, California — the Article tests several bedrock claims about federalization.  The testing leads to surprising results regarding conviction rates, sentencing severity, and racial disparities in charging practices.  Finally, the Article connects these findings to the larger problem of academia’s fixation on all things federal — a fixation that comes at the expense of state and local topics.

February 21, 2024 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, February 16, 2024

Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried?

The question in the title of this post is prompted by this new CoinDesk article headlined "Sam Bankman-Fried's Sentence Might Be Lighter Than You'd Expect."  Here are excerpts:

Former FTX boss Sam Bankman-Fried (SBF) may be handed a lighter sentence than otherwise when he faces District Judge Lewis A. Kaplan next month because customers of the bankrupt exchange will probably be made whole thanks to a bounce in crypto markets and the buoyancy of certain investments held by the estate.

Bankman-Fried was found guilty of fraud in November 2023, about a year after his crypto trading empire collapsed. During the bankruptcy process, the crypto market has risen sharply -- CoinDesk Indices' CD20 gauge has gained more than 130% -- meaning many thousands of hapless creditors are going to receive all the funds they had locked in, albeit at November 2022 prices.  In July last year, the bankruptcy team said customers were owed $8.7 billion.

The jump in crypto markets matters because restitution can be taken into account for sentencing.  For example, for low losses, the guidelines suggest a range of 24-30 months.  A high-loss amount, in contrast, could lead to a draconian range of upwards of 20 years’ imprisonment, or even life, according to Jordan Estes, a partner at the New York City office of law firm Kramer Levin. “I would expect the loss amount to be hotly contested at sentencing,” said Estes, a former assistant U.S. attorney who co-led the general crimes unit in the Southern District of New York, where the trial took place.  “In particular, the defense may argue for a substantially lower loss amount, or even a loss amount of $0, if all customers and creditors will be made whole,” she told CoinDesk via email.

That said, the U.S. sentencing guidelines that give defendants credit for amounts returned to victims apply only when the return took place before the offense was detected.  In this case, it’s clearly not SBF who is giving the money back, and the payments come well after discovery of the offense.  A possible parallel is the case of fraudulent financier Bernie Madoff, who died in prison at the age of 82 while serving a series of consecutive sentences that ran to 150 years. In Madoff's case, the bankruptcy trustee also recovered large sums of stolen money, but he didn't receive any credit for that.

Prior related post:

UPDATE: In the comments, Professor Todd Haugh flagged his recent LinedIn posting discussing these issues.  Here is how his discussion concludes:

In the federal system, the sentencing range applicable to an economic offender like SBF is heavily determined by the loss amount. The higher the loss, the higher the sentencing range, and the higher the eventual sentence (even though judges don't have to follow the range they are anchored by it).

You might ask (as DealBook does), if customers are made whole and there is no loss, doesn't that help SBF at sentencing?  You would think, except sentencing loss isn't loss like we think of it -- it's actual or intended loss according to the Sentencing Guidelines and most caselaw.  So even though Ray found all the money and there may be very little actual loss, SBF's fraud caused an intended loss of about $8B.  That's the number that will set the loss amount regardless of how much is recovered for customers (subject to a lot-and I mean a lot-of argument between prosecutors and SBF).

But what about the "sort of" part?  Even though the intended loss is what it is, because the guideline range is only advisory, Judge Kaplan can ignore it and impose a lower sentence. That almost always happens in high loss white collar cases because the loss amounts push the sentencing ranges to outlandish heights.  And when the judge is considering how low to go, he's going to be considering that "actual loss" amount, which may be $0 here.

It's not a get out of jail free card, but it matters.

February 16, 2024 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Wednesday, February 14, 2024

Noting the first beneficiaries of Minnesota’s felony murder reforms

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

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

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

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

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

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

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

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

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

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

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

February 14, 2024 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Should AI be treated like a firearm for federal sentencing purposes?

The question in the title of this post is prompted by a speech given today by Deputy Attorney General Lisa Monaco "on the Promise and Peril of AI."  The full speech, as prepared for delivery, is available at this link, and here are excerpts including the portion leading to the query in the title of this post:

Today, as the Chief Operating Officer and the Number 2 person in the Justice Department, I — along with Attorney General Garland — am laser-focused on what may well be the most transformational technology we’ve confronted yet: artificial intelligence, and what it portends for our core mission.

Every new technology is a double-edged sword, but AI may be the sharpest blade yet. It has the potential to be an indispensable tool to help identify, disrupt, and deter criminals, terrorists, and hostile nation-states from doing us harm....

[But] we’ve already seen that AI can lower the barriers to entry for criminals and embolden our adversaries. It’s changing how crimes are committed and who commits them — creating new opportunities for wanna-be hackers and supercharging the threat posed by the most sophisticated cybercriminals.....

The U.S. criminal justice system has long applied increased penalties to crimes committed with a firearm.  Guns enhance danger, so when they’re used to commit crimes, sentences are more severe.

Like a firearm, AI can also enhance the danger of a crime.

Going forward, where Department of Justice prosecutors can seek stiffer sentences for offenses made significantly more dangerous by the misuse of AI — they will.  And if we determine that existing sentencing enhancements don’t adequately address the harms caused by misuse of AI, we will seek reforms to those enhancements to close that gap.

This approach will deepen accountability and exert deterrence. And it reflects the principle that our laws can and must remain responsive to the moment.

I am still thinking through the firearm/AI analogy, and I am not sure it really works. But I do get the idea that "AI can lower the barriers to entry for criminals" and that AI can, in various ways, make some criminal threats and dangers greater.  Just how our sentencing systems should deal with AI-involvement in crime is a topic sure to be of great interest in the years ahead.

February 14, 2024 in Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

Tuesday, February 06, 2024

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

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

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

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

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

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

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

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

February 6, 2024 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Thursday, February 01, 2024

"Resisting Mass Immigrant Prosecutions"

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

Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes.  This has mostly happened through a federal program called “Operation Streamline.” In that program, immigrants are convicted without any semblance of due process.  They are charged with the crime of entering the United States, have a brief conversation with a defense lawyer, plead guilty in a mass plea hearing with up to one hundred defendants at once, and receive their sentence — all in a single court appearance.  In 2018, this program encountered its first organized resistance.  In that year the Trump Administration tried to bring Operation Streamline to California for the first time.  There, immigrant defendants and their lawyers did not acquiesce to a norm of immediate guilty pleas.  Instead, they fought their cases by securing release on bond, raising objections, taking their cases to trial, and appealing their convictions.  This unexpected resistance prevented federal prosecutors from processing dozens of cases per day.  In 2021, something similar happened in Texas.  Governor Greg Abbott created a state law version of Operation Streamline called “Operation Lone Star.”  Immigrant defendants and their lawyers have resisted this program as well, securing release on bond and fighting through motions, writs, and trials.

This Article documents, analyzes, and draws lessons from these immigrants’ defiance.  It does so using court records, transcripts, and firsthand accounts.  In the process this Article uncovers the institutional logic of these mass immigrant prosecution systems, which have become a major feature of U.S. immigration policy.  It shows how these systems prioritize efficiency above all else, resulting in inferior jail conditions, summary court proceedings, and coerced guilty pleas.  In particular, it critiques the role defense lawyers typically play in these systems.  Defense lawyers are expected to facilitate these prosecutions by coaching their clients to plead guilty quickly.  Their presence gives the proceedings a false legitimacy, as these systems are designed to prevent lawyers from providing competent counsel.  As this Article argues, defense lawyers should instead undermine these systems by helping defendants assert their rights and litigate.  Indeed, immigrant defendants have powerful incentives to fight their cases if their lawyers will help them.  The battles in San Diego and Texas reveal several effective strategies for immigrant defendants to resist mass criminalization through collective litigation.  These include pushing for bail, going to trial, taking legal issues up on appeal, forcing prosecutors and judges to spend time on each case, and coordinating with outside groups like bail funds, immigration organizations, activists, and the media.

February 1, 2024 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, January 29, 2024

Federal judge criticizes ex-IRS tax leaker (and DOJ) when imposing five-year sentence

I flagged today's notable DC sentencing in this post last night, and this lengthy CBS News accounting of the sentencing highlights that there were some notable comments from the judge.  Here are snippets from the press report:

The Internal Revenue Service contractor who pleaded guilty to leaking the federal tax records of former President Donald Trump and some of the nation's wealthiest individuals was sentenced Monday to 5 years in prison, 3 years supervised release and a $5,000 fine. The sentence brings an end to a criminal case that exposed the source of a number of high-profile tax information leaks in recent years.

Charles Littlejohn, 38, pleaded guilty to one count of unauthorized disclosure of tax returns and return information in October and faced a maximum sentence of 5 years in prison. Investigators said he used his position as a contractor with the nation's tax collector to illegally obtain and then disperse the financial records of the former president, which resulted in "numerous articles" based on the information.

Before sentencing Littlejohn on Monday, federal District Judge Ana Reyes called his conduct "an attack on our constitutional democracy." "He targeted the sitting president of the United States of America, and that is exceptional by any measure," Judge Reyes said. "It cannot be open season on our elected officials."...

Littlejohn's explanations did not appear to sway the court's sentencing decision. Reyes said courts must be an "unbreakable bulwark" for American democracy in the face of increased threats. The court's job, the judge said, was to make sure that others never viewed "this type of conduct as acceptable or justifiable or worth the trade-off…We are a nation of laws."...

The Justice Department's court filing revealed that the other tax returns Littlejohn admitted to acquiring dated as far back as 15 years, and they belonged to thousands of the nation's wealthiest Americans. Investigators alleged he mailed a storage device containing the information to another unnamed news organization, identified by CBS News as ProPublica....

The judge appeared frustrated at times with prosecutors as she wrestled with a guideline sentencing range of just 18 months and a crime that she said warranted serious punishment and deterrence.  Reyes asked prosecutor Jonathan Jacobson for information on any additional charges Littlejohn may have faced if he had opted not to enter the guilty plea, but the government attorney did not provide further detail.  "The fact that he did what he did and he is facing one felony count, I have no words for," the judge said, with exasperation in her voice.

Especially in light of some recent blog comment discussions about plea deals and DOJ transparency, I find it interesting that the DOJ apparently rebuffed the sentencing judge's efforts here to find out any more information about DOJ's notable charging and bargaining decisons in this case. I guess what happens inside DOJ, stays inside DOJ.

UPDATE: The comment thread here started a discussion of the terms of plea deal in this case.  Attorney Webb Wassmer kindly sent me a copy of the (public) plea agreement agreement (which was filed back in October 2023), and other case documents accessed from the court website.  I have posted the plea agreement below, and here is a snippet of his helpful summary:

[The agreement calculated] him at total offense level 11, CH I, for a range of 8-14 months with a further reduction possible, [but] there was no agreement as to actual sentence, with the Government stating that it would seek an upward departure and/or variance.

[T]here is a limited appeal waiver. Most significantly, defendant reserved the right to appeal if the Court granted an upward departure or variance above the advisory guideline range identified at sentencing. Thus, he can appeal the five year sentence. As others have noted, that type of appeal almost never succeeds.

Download Littlejohn Plea Agreeement 10-12-23

January 29, 2024 in Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (39)

Sunday, January 28, 2024

Notable players and politics surrounding sentencing of leaker of Prez Trump's and many others tax records

A notable sentencing of a notable crime is scheduled for Monday morning in DC, and this new Roll Call piece provides links to the sentencing arguments and notes the interesting people and politics connected to the case.  The piece is headlined "Lawmakers back maximum prison sentence in tax record leak case," and here are extended excerpts (with helpful links from the original):

Members of Congress have backed a tough prison sentence for a man who pleaded guilty to leaking to the media tax records of Donald Trump, Sen. Rick Scott and billionaires Elon Musk, Warren Buffett and Jeff Bezos.  A sentencing hearing is set for Monday morning in Washington for Charles Littlejohn, a former contractor for the Internal Revenue Service, on one charge of disclosing tax return information without authorization.

Prosecutors have recommended that Judge Ana C. Reyes of the U.S. District Court for the District of Columbia sentence Littlejohn to five years in prison, arguing that he leaked the returns of over a thousand people, damaging the tax system and the public trust.  Prosecutors said the “unparalleled” disclosure warranted the maximum statutory sentence.  “There simply is no precedent for a case involving the disclosure of tax return and return information associated with ‘over a thousand’ individuals and entities,” prosecutors wrote.

Scott, R-Fla., announced Thursday that he was one of the people whose tax information was leaked by Littlejohn and said he intended to read a victim impact statement during Monday’s hearing.  Scott also published a letter that asked Attorney General Merrick B. Garland to attend and criticized prosecutors for allowing Littlejohn to plead guilty to a single criminal charge.  Scott wrote that Littlejohn’s crimes were “entirely aligned with the agenda of the Biden administration” and that Garland had politicized the Justice Department.  “Since you have steered the Justice Department down this partisan political path, you should be on hand personally to in some way be accountable,” Scott wrote....

Republican members of the House Ways and Means Committee, in a letter to the judge, criticized the DOJ’s handling of the case, particularly the fact that Littlejohn pleaded guilty to only one criminal count.  The letter, led by committee Chairman Jason Smith, R-Mo., argued Littlejohn took great steps to damage the tax system and evade justice and should receive the maximum five-year prison sentence.  “Mr. Littlejohn’s actions showed disdain for the rule of law and American confidence in our voluntary tax system.  He acted with an apparent political motivation and perhaps with an intent to impact a Presidential election,” the letter states.

According to court papers, Littlejohn stole information about “Public Official A” over several months in 2019 and provided them to a news organization which later published them.  In September 2020, The New York Times published a lengthy investigation about former President Trump’s finances, which showed he routinely lost money and paid little in taxes.  Littlejohn later stole information on thousands of wealthy taxpayers in 2020, according to court documents.  He later provided that information to another news organization, according to court documents, which published them in 2021....

In a filing last year in court, the government and Littlejohn stipulated to a sentencing guidelines recommendation for between eight and 14 months in prison, but both sides reserved the right to push for departures from those guidelines.  Littlejohn’s attorneys have argued for leniency, saying that Littlejohn believed he was acting in the public interest after becoming concerned about income inequality and tax dodging.  “He did not disclose the information for personal gain; nor did he intend to harm the taxpayers,” the sentencing memorandum said.

January 28, 2024 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (22)

Thursday, January 25, 2024

Federal judge sentences Peter Navarro to 4 months of imprisonment for contempt of Congress

As reported in this Fox News piece, "Peter Navarro, who served in the White House under former President Donald Trump, was sentenced Thursday for flouting a House Jan. 6 committee subpoena. U.S. District Judge Amit Mehta sentenced Navarro to four months in prison and ordered him to pay a fine of $9,500." Here is more:

That's two months shorter than the six prosecutors had sought, but Mehta drastically reduced the whopping $200,000 fine sought by the Justice Department.   

A former adviser to the president on trade and manufacturing policies, Navarro was convicted in September of two counts of contempt of Congress for defying a subpoena for documents and a deposition from the House select committee investigating the Jan. 6, 2021, riot at the U.S. Capitol. The subpoena required Navarro to appear and produce documents in February 2022, and sit for a deposition in March 2022, but Navarro refused to provide the materials and testify. As a private citizen, he was indicted on June 2, 2022....

Mehta on Thursday had gone through a tedious recounting of the sentencing guidelines and came to the conclusion that there is a "zero to six months range," of imprisonment in this case, as well as a fine range of $500 to $9,500. Sentencing guidelines are only a suggestion, and the judge could have sentenced Navarro to a longer sentence if he saw fit.

At the sentencing hearing, Navarro spoke in his own defense, saying he defied the subpoena because he believed in "good faith" that Trump had invoked executive privilege. "When I received that congressional subpoena, the second, I had an honest belief that the privilege had been invoked, and I was torn. Nobody in my position should be put in conflict between the legislative branch and the executive branch. Is that the lesson of this entire proceeding? Get a letter and a lawyer? I think in a way it is," Navarro said. "I am disappointed with a process where a jury convicted me, and I was unable to provide a defense, one of the most important elements of our justice system."

Navarro's defense attorney said the court of appeal will determine if executive privilege applies. The judge noted how in citing executive privilege, another White House adviser, Kellyanne Conway "had an (DOJ Office of Legal Counsel) OLC opinion she could rely on," but Navarro had no such opinion and didn't hire representation.

"I have a great deal of respect for your client and what he accomplished and that makes it more disappointing," Mehta said, also noting that Mark Meadows, who also faced a Jan. 6 committee subpoena, "produced documents, produced texts, he didn’t testify, but at least he did something." ...

Prosecutors had asked the judge to sentence Navarro to six months behind bars and impose a $200,000 fine. The Justice Department has previously noted that each count of contempt of Congress carries a minimum of 30 days and a maximum of one year in jail, as well as a fine of up to $100,000....

Navarro was the second Trump aide to face contempt of Congress charges. Former White House adviser Steve Bannon was convicted of two counts and was sentenced to four months behind bars, though he has been free while appealing his conviction.

January 25, 2024 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (30)

Tuesday, January 23, 2024

Another FIRST STEP Act sentence reduction for last of "Newburgh Four" defendants involved in "FBI-orchestrated conspiracy"

In this post six months ago, I flagged US District Judge Colleen McMahon's notable opinion in US v. Williams, in which she explained why she was reducing the sentences of three of the "Newburgh Four" defendants using her authority under the FIRST STEP Act's revisions to 18 USC § 3582(c)(1)(A).  The other shoe dropped late last week in this matter, as reported in this AP piece headlined "Judge orders release of ‘Newburgh Four’ defendant and blasts FBI’s role in terror sting."  Here are excerpts from the press account:

U.S. District Judge Colleen McMahon on Friday granted James Cromitie, 58, compassionate release from prison six months after she ordered the release of his three co-defendants, known as the Newburgh Four, for similar reasons. The four men from the small river city 60 miles (97 kilometers) north of New York City were convicted of terrorism charges in 2010.

Cromitie has served 15 years of his 25-year minimum sentence. The New York-based judge ordered Cromitie’s sentence to be reduced to time served plus 90 days.

Prosecutors in the high-profile case said the Newburgh defendants spent months scouting targets and securing what they thought were explosives and a surface-to-air missile, aiming to shoot down planes at the Air National Guard base in Newburgh and blow up synagogues in the Bronx. They were arrested after allegedly planting “bombs” that were packed with inert explosives supplied by the FBI.

Critics have accused federal agents of entrapping a group of men who were down on their luck after doing prison time.

In a scathing ruling, McMahon wrote that the FBI invented the conspiracy and identified the targets. Cromitie and his co-defendants, she wrote, “would not have, and could not have, devised on their own a crime involving missiles that would have warranted the 25-year sentence the court was forced to impose.” “The notion that Cromitie was selected as a ‘leader’ by the co-defendants is inconceivable, given his well-documented buffoonery and ineptitude,” she wrote.

Cromitie was bought into the phony plot by the federal informant Shaheed Hussain, whose work has been criticized for years by civil liberties groups. McMahon called him “most unsavory” and a “villain” sent by the government to “troll among the poorest and weakest of men for ‘terrorists’ who might prove susceptible to an offer of much-needed cash in exchange for committing a faux crime.”

Judge McMahon's full opinion in US v. Cromitie, 09 CR 558-01 (CM) (SDNY Jan. 19, 2024), is available at this link. Here is just one notable passage in an opinion filled with notable passages:

Nothing could be more certain than the fact that Cromitie and his codefendants would not have, and could not have, devised on their own a crime involving missiles that would have warranted the 25-year sentence the court was forced to impose.  See United States v. Cromitie, 727 F.3d 194 (2d Cir. 2013).  Then Chief Judge Jacobs, who would have overturned Cromitie's (and only Cromitie's) conviction on entrapment grounds, said it best: "It is clear that Cromitie in his unmolested state of grievance would (for all the evidence shows, and as the district court found) have continued to stew in his rage and ignorance indefinitely, and had no formed design about what to do.  The government agent supplied a design and gave it form, so that the agent rather than the defendant inspired the crime, provoked it, planned it, financed it, equipped it, and furnished the time and targets. He had to, because Cromitie was comically incompetent, possibly the last candidate one would pick as the agent of a conspiracy." Id. at 230.

Had the Government not contrived its elaborate sting operation, it is highly likely that Cromitie would have lived out his life in Newburgh, quite possibly cycling in and out of jail for a string of petty offenses, but never committing a crime remotely like the ones for which he has been sitting in a federal penitentiary for 15 years.  My misgivings about how the Government ensnared and then arranged things so that these men could be charged with crimes that carried a 25 year mandatory minimum factored significantly in my decision not to sentence them to more than the mandatory minimum (their Guideline, predictably, was life).  I was fully aware, at the time the sentence was imposed, that it did not accord with the so-called "parsimony clause" in 18 U.S.C. § 3553(a); as noted above, I said so.

Prior related post:

January 23, 2024 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Wednesday, January 17, 2024

"Redistributing Justice"

The title of this post is the title of this new article now available via SSRN authored by Benjamin Levin and Kate Levine. Here is its abstract:

This Article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system.  Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state.  Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas — often areas where defendants are imagined as powerful and victims as particularly vulnerable.

In this Article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment — the hope that the criminal system can be used to redistribute power and privilege.  We examine this redistributive theory of punishment via a series of case studies: police violence, economic crimes, hate crimes, and crimes of gender subordination.  It is tempting to view these cases as one-off exceptions to a general opposition to criminal punishment.  Instead, we argue that they reflect a vision of criminal law as a tool of redistribution — a vehicle for redistributing power from privileged defendants to marginalized victims.

Ultimately, we critique this redistributive model of criminal law.  We argue that the criminal system can’t redistribute in the egalitarian ways that some commentators imagine.  Even if criminal law somehow could advance some of the redistributive ends that proponents suggest, though, our criminal system would remain objectionable.  The oppressive and inhumane aspects of the carceral state still would be oppressive and inhumane even if the identity of the defendants or the politics associated with the institutions shifted.

January 17, 2024 in Elections and sentencing issues in political debates, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Feds reportedly to allow Colorado nightclub mass murderer to plead guilty to avoid capital charges

As reported in this new AP piece, a "shooter who killed five people and endangered the lives of over 40 others at an LGBTQ+ nightclub in Colorado Springs plans to plead guilty to new federal charges for hate crimes and firearm violations under an agreement that would allow the defendant to avoid the death penalty, according to court documents made public Tuesday." Here is more:

Anderson Aldrich, 23, made a deal with prosecutors to plead guilty to 50 hate crime charges and 24 firearm violations, the documents show. Aldrich would get multiple life sentences in addition to a 190-year sentence under the proposed agreement, which needs a judge’s approval....

Aldrich was sentenced to life in prison last June after pleading guilty to state charges of murder and 46 counts of attempted murder — one for each person at Club Q during the attack on Nov. 19, 2022.

Word of the new charges and planned agreement come just days after federal prosecutors revealed they would seek the death penalty in another hate crime case — against a white supremacist who killed 10 Black people at a supermarket in Buffalo, New York....

Aldrich, who is nonbinary and uses they/them pronouns, also pleaded no contest to state charges for hate crimes under a plea agreement. The plea was an acknowledgment there was a good chance Aldrich would be convicted of those crimes without admitting guilt. The pleas carried the same weight as a conviction....

At the time of Aldrich’s sentencing in state court, Colorado Springs area District Attorney Michael Allen said the possibility of receiving the death penalty in the federal system was a “big part of what motivated the defendant” to plead guilty to the state charges....

Aldrich declined to speak at the sentencing hearing in state court, and haven’t said why they hung out at the club, then went outside and returned dressed in body armor. Aldrich began firing an AR-15-style rifle as soon as they came back in. Prosecutors say Aldrich had visited the club at least six times before that night and that Aldrich’s mother had forced them to go.

In a series of telephone calls from jail, Aldrich told The Associated Press they were on a “very large plethora of drugs” and abusing steroids at the time of the attack. When asked whether the attack was motivated by hate, Aldrich said that was “completely off base.” The district attorney called those statements self-serving and characterized the assertion as ringing hollow. He said Aldrich’s claim of being nonbinary is part of an effort to avoid hate crime charges, saying there was no evidence of Aldrich identifying as nonbinary before the shooting.

During hearings in the state case in February, prosecutors said Aldrich administered a website that posted a “neo-Nazi white supremacist” shooting training video. A police detective also testified that online gaming friends said Aldrich expressed hatred for the police, LBGTQ+ people and minorities, and used racist and homophobic slurs. One said that Aldrich sent an online message with a photo of a rifle trained on a gay pride parade....

The 2022 attack came more than a year after Aldrich was arrested for threatening their grandparents and vowing to become “the next mass killer ″ while stockpiling weapons, body armor and bomb-making materials. Those charges were eventually dismissed after Aldrich’s mother and grandparents refused to cooperate with prosecutors.

January 17, 2024 in Death Penalty Reforms, Offense Characteristics, Who Sentences | Permalink | Comments (12)

Tuesday, January 16, 2024

"Refining the Dangerousness Standard in Felon Disarmament"

The title of this post is the title of this essay recently posted to SSRN and authored by Jamie G. McWilliam. Here is its abstract:

For a regulation of the Second Amendment right to be upheld, Bruen requires a showing of historically analogous laws.  In the context of felon disarmament, the primary group of laws that the government has put forward involve disarming classes that the government deemed dangerous, such as Loyalists, Catholics, and Blacks.  While the theme of dangerousness within these laws is strong, their prejudicial nature is concerning.  How can a court rely on them without implicitly importing a prejudicial analysis?

This essay argues that the takeaway from these historical analogues should be a broad theme of dangerousness, rather than the particular conceptions embodied therein.  Instead, to determine the scope of the dangerousness standard, courts should look to the principles embodies by the Second Amendment itself — in particular, defense against immediate personal violence.  Ultimately, this essay suggests that only those who have actually created the kind of danger that the amendment was meant to protect against — i.e., who have perpetrated physical violence — should be disarmed.  This standard may defend against potentially prejudicial discretion, while simultaneously upholding Second Amendment rights and protecting our community.

January 16, 2024 in Collateral consequences, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (0)

Friday, January 12, 2024

"Red Codes, Blue Codes? Factors Influencing the Formulation of Criminal Law Rules"

The title of this post is the title of this new paper now available via SSRN authored by Paul Robinson, Hugh Rennie and Clever Earth. Here is its abstract:

The U.S. appears to be increasingly politically divided between “red states” and “blue states,” to the point that many serious public voices on both sides are urging that the country seriously consider separating along a red-blue divide.  A range of stark public disagreements over criminal law issues have fed the succession movement.  Consider obvious examples such as abortion, decriminalization of marijuana, “stand your ground” statutes, the death penalty, and concealed weapon carry laws.  Are red and blue values so fundamentally different that we ought to recognize a reality in which there exists red codes and blue codes?

To answer that question, this study examined the criminal codes of the six largest deep red states and the six largest deep blue states — states in which a single political party has held the governorship and control of both legislative bodies for at least the past three elections.  It then identified 93 legal issues on which there appeared to be meaningful difference among the 12 states’ criminal law rules.  An analysis of the patterns of agreement and disagreement among the 12 states was striking.  Of the many thousands of issues that must be settled in drafting a criminal code, only a handful — that sliver of criminal law issues that became matters of public political debate, such as those noted above —  show a clear red-blue pattern of difference.

If not red-blue, then, what does explain the patterns of disagreement among the 12 states on the 93 criminal law issue?  What factors have greater influence on the formulation of criminal law rules than the red-blue divide?

The Article examines a range of possible influences, giving specific examples that illustrate the operation of each: state characteristics, such as population; state criminal justice characteristics, such as crime rates; model codes, such as the ALI’s Model Penal Code; national headline events, such as the attempted assassination of President Reagan; local headline cases that over time grow into national movements, such as Tracy Thurman and domestic violence; local headline cases that produced only a local state effect; the effect of legislation passed by a neighboring state; and legislation as a response to judicial interpretation or invalidation.

In other words, not only is the red-blue divide of little effect for the vast bulk of criminal law, but the factors that do have effect are numerous and varied.  The U.S. does not in fact have red codes and blue codes.  More importantly, the dynamics of criminal law formulation suggest that distinctive red codes and blue codes are never likely to exist because the formulation of most criminal law rules are the product of a complex collection of influences apart from red-blue.

January 12, 2024 in Elections and sentencing issues in political debates, Offense Characteristics | Permalink | Comments (5)

Thursday, January 11, 2024

Split Massachusetts top court rules "life without parole for emerging adults" violates state constitution

The Massachusetts Supreme Judicial Court today handed down a very legnthy ruling, reflecting a 4-to-3 vote among the justices, addressing a constitutional challenge to LWOP sentencing imposed on persons under 21 at the time of thier offense. The ruling of the majoirty in Commonwealth v. Mattis, No. SJC-11693 (Mass. Jan. 11, 2024) (available here), gets started this way:

When it comes to determining whether a punishment is constitutional under either the Eighth Amendment to the United States Constitution or art. 26 of the Massachusetts Declaration of Rights, youth matters.  See, e.g., Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); Roper v. Simmons, 543 U.S. 551 (2005); Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), S.C., 471 Mass. 12 (2015).  In Miller, supra at 465, 476, the United States Supreme Court struck down mandatory life imprisonment without the possibility of parole for juveniles based in part on the "mitigating qualities of youth."  Approximately one and one-half years later, this court went further than Miller and concluded that sentencing a juvenile to life without parole in any circumstance would violate art. 26.  See Diatchenko I, supra at 669-670.

The defendant, Sheldon Mattis, was convicted of murder in the first degree, among other charges, and was sentenced to a mandatory term of life in prison without the possibility of parole, see G. L. c. 265, § 2 (a). Commonwealth v. Watt, 484 Mass. 742, 754-756 (2020).  On appeal, he challenged the constitutionality of his sentence as applied to him. He argued that because he was eighteen years old at the time of the murder, he is entitled to the same protection as juvenile offenders (i.e., those from fourteen to seventeen years of age) convicted of murder in the first degree, who receive a term of life with the possibility of parole. See G. L. c. 265, § 2 (b).

Here, we consider whether our holding in Diatchenko I should be extended to apply to emerging adults, that is, those who were eighteen, nineteen, and twenty years of age when they committed the crime.  Based on precedent and contemporary standards of decency in the Commonwealth and elsewhere, we conclude that the answer is yes.

There are a number of concurrences and dissents, and here are a few paragraphs paragraph from the start of the lead dissent authored by Justice Jowy:

I cannot say that society, through its elected officials, may not express its revulsion of the crime of murder in the first degree by imposing a punishment of life without the possibility of parole on adults without offending our Declaration of Rights.  Therefore, I respectfully dissent....

Our assessment under art. 26 is not whether the mandatory imposition of life without the possibility of parole for individuals from eighteen to twenty-one is, in our view, wise, prudent, or even best for society.  Our inquiry is limited to whether the punishment, chosen by the Legislature, is so disproportionate that it reaches the level of cruel or unusual. See Diatchenko I, 466 Mass. at 669.  Because, under our contemporary standards of decency and precedent, the mandatory imposition of life without the possibility of parole on adults who commit murder in the first degree when they are from eighteen to twenty-one is not "so disproportionate" that "it 'shocks the conscience and offends fundamental notions of human dignity,'" id., quoting Cepulonis, 384 Mass. at 497, the sentence does not violate art. 26's proscription against cruel or unusual punishment. It therefore must be upheld.

January 11, 2024 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (15)

Friday, January 05, 2024

A more detailed accounting of Jan 6 riot sentencings

In this post yesterday, I noted a new New York Times review and accounting of the prosecutions of January 6 rioters three years after their misdeeds.   A helpful reader alerted me to this new Washington Post piece which provides an even more detailed accounting of sentencing outcomes for this large group of federal defendants.  The WaPo piece is headlined "Most Jan. 6 defendants get time behind bars, but less than U.S. seeks," and here are excerpts from a lengthy article worth reading in full:

Judges have ordered prison time for nearly every defendant convicted of a felony and some jail time to about half of those convicted of misdemeanors.

But in the vast majority of the more than 700 sentencings to date, judges have issued punishments below government guidelines and prosecutors’ requests. Though more than 60 percent of the defendants sentenced so far have received jail or prison terms, the judges have gone below federal sentencing guidelines in 67 percent of the cases, Post data shows. Nationally, federal judges go below the advisory guidelines about 51 percent of the time, according to federal statistics....

Sentencings greatly increased in 2023, with nearly 370 defendants sentenced in one year, after less than 360 were sentenced in the previous two years. And the percentage of people receiving terms of incarceration increased from 56 percent to 64 percent as more serious felony cases were completed.

For those charged with lesser misdemeanors, about half received a jail sentence averaging 58 days, while about a third received probation and 18 percent were ordered to spend time in home confinement. The incarceration rate for Jan. 6 misdemeanants is higher than for other federal misdemeanants because it came in the context of a mob assault that helped make the breach possible. For those convicted of felonies, 94 percent were ordered behind bars, a consistent rate every year.

Of 244 felony sentencings for all charges, the average sentence has been 41 months, or about 3½ years, The Post’s data shows. For those who pleaded guilty, the average felony sentence is now about 2½ years, but those who were convicted at trial received an average of 5 years in prison....

The average sentence for those convicted of assaulting a police officer is more than 45 months, The Post’s data shows. The average sentence for those convicted of obstructing an official proceeding has been 39 months. Nearly 400 defendants have been placed on probation, either as their full sentence or after their incarceration, for periods that extend beyond this November’s presidential election....

The sentencings by the 15 judges appointed by Democratic presidents are not much different from the nine appointed by Republicans. Those appointed by Democrats have imposed jail or prison sentences in 65 percent of the cases, compared with 63 percent of cases sentenced by Republican appointees, according to Post data....

Four Trump appointees have imposed incarceration in 57 percent of cases, compared with 67 percent for nine Obama appointees and three George W. Bush appointees. Three Biden appointees have imposed jail or prison only 20 percent of the time, but they have heard only 30 cases and four felonies. Only one active judge has sent every single defendant to jail or prison: Tanya S. Chutkan, the judge handling the D.C. prosecution of Trump, has ordered all 39 of her defendants behind bars.

January 5, 2024 in Celebrity sentencings, Data on sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (8)

Thursday, January 04, 2024

Recapping the state of Jan 6 riot prosecutions and sentences at three-year mark

The New York Times gets a slight jump on the three-year anniversary of the Jan 6 riot with this new piece headlined, "The Jan. 6 Riot Inquiry So Far: Three Years, Hundreds of Prison Sentences."  Here are some excerpts:

Nearly three years after a mob attacked the Capitol on Jan. 6, 2021, in support of former President Donald J. Trump, the criminal investigation into the events of that day pushes on. Prosecutors have called the riot inquiry the largest in the history of the Justice Department, and there is no doubt it is vast by any measure.

Every week, a few more people are arrested. As of December, about 1,240 people had been arrested in connection with the attack, accused of crimes ranging from trespassing, a misdemeanor, to seditious conspiracy, a felony. More than 350 cases are still pending.

Around 170 people have been convicted at trial, while only two people have been fully acquitted. Approximately 710 people have pleaded guilty and among those, around 210 pleaded guilty to felony offenses.

After being convicted or pleading guilty, more than 720 people have received sentences so far and more than 450 of them were sentenced to periods of incarceration, ranging from a handful of days to more than 20 years....

While some of the cases have attracted nationwide attention, particularly those involving far-right groups like the Proud Boys and the Oath Keepers militia, most of the prosecutions have flown beneath the radar, unfolding in quiet hearings often attended only by the defendants and their families. These proceedings have helped to flesh out the story of how an angry crowd of Mr. Trump’s supporters, egged on by his lies about a stolen election, stopped the democratic process, if only for several hours.

The bulk of the riot cases, more than 710, were resolved without trial through guilty pleas.  As of the Justice Department’s latest update in December, about 170 people have gone to trial in Federal District Court in Washington, in front of either a jury or just a judge, with a vast majority resulting in convictions.

As for punishment, more than 450 people have been sent to jail or prison, with the longest term so far being the 22-year sentence imposed on Enrique Tarrio, the former leader of the Proud Boys. Several people who were not associated with extremist groups but who assaulted the police in what officers have described as a “medieval” battle outside the Capitol have been sentenced to a decade or more behind bars....

One of the most common charges used against rioters has been entering or remaining in a restricted federal building or grounds. More than 1,100 have faced that count.

About 450 people have been charged with assaulting or impeding law enforcement officers at the Capitol, and about 330 have been accused of obstruction of the certification of the election that was taking place inside the building on Jan. 6. But the Supreme Court recently announced that it was going to review the obstruction charge to see if it should apply to the Capitol attack.

January 4, 2024 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (17)

"Acquitted But Not Free: How Sentencing Based on Acquitted Conduct Undermines the Jury’s Purpose"

The title of this post is the title of this new student comment authored by Ethan Evans and now available via SSRN.  Here is its abstract:

Acquitted conduct sentencing is a controversial practice that allows judges to increase a defendant's sentence based on facts tried before a jury and not found beyond a reasonable doubt.  This practice undermines the effect of an acquittal, the right to a jury trial, and due process of law.  In 1997, the Supreme Court authorized this practice under a double jeopardy challenge in United States v. Watts.  However, the Court refused to hear the drastic consequences of that decision earlier this year in 2023.  In McClinton v. United States, the district court increased a defendant’s sentence from a range of five to six years to almost twenty by finding he was responsible for murder, a charge explicitly rejected by the jury.  The Supreme Court declined to hear the issue, despite recognizing the serious constitutional concerns, stating that the proper avenue for change is the United States Sentencing Commission.  While an amendment to the United States Sentencing Guidelines may discourage the practice, an absolute prohibition on acquitted conduct sentencing is needed.

This comment outlines the problems with acquitted conduct sentencing under the Sixth Amendment’s right to a jury trial and the Due Process Clause of the Fifth and Fourteenth Amendments. Looking at the possible avenues for change, this comment critiques the United States Sentencing Commission’s newly released draft amendment restricting the use of acquitted conduct.  While the current draft amendment would limit the use of acquitted conduct to rare instances where a departure may be necessary, an absolute prohibition is required to uphold respect for a jury’s acquittal.  This is because the purpose of the jury, as envisioned by the founders, was to protect against the government unjustly depriving an individual of liberty.  Thus, a judge cannot increase a criminal penalty where the jury explicitly refuses to authorize punishment, without superseding their role as a guard against the government.

January 4, 2024 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14)

Tuesday, December 19, 2023

Council on Criminal Justice releases new report, "Trends in Homicide: What We Know"

Via email I learned of this notable data report and analysis by the Council on Criminal Justice titled "Trends in Homicide: What We Know."  I recommend the entire reader-friendly, online report, which starts with an Introduction and Highlights.  Here is the starting text:


The Council on Criminal Justice’s mid-year crime trends report found that murders in 30 large American cities declined by 9.4% in the first half of 2023 compared to the first half of 2022.  If this trend continues through the end of 2023, the nation will have experienced one of the largest single-year homicide reductions in the era of modern record keeping.  CCJ’s full report on trends in homicide and other crimes will be released in January.

This brief, prepared for CCJ’s Crime Trends Working Group, explores data on homicide from multiple sources. It examines victimization by age, race, and sex, as well as changes in arrests, clearance rates, the victim-offender relationship, and other key measures.  Drawing on Working Group presentations and conversations, the brief also explores possible explanations for the rise in homicide seen during the height of the pandemic and social justice protests of mid-2020, and, in most cities, its subsequent decline.

The recent decrease in murders is encouraging.  But far more can and must be done to achieve lasting reductions in homicide and other violent crime.  Government agencies and community organizations are testing myriad approaches. CCJ’s Task Force on Policing and Violent Crime Working Group highlighted numerous evidence-based strategies and reforms to improve law enforcement, increase police collaboration with community organizations, and strengthen the overall effectiveness of violence reduction efforts.  Multiple jurisdictions have drawn on this guidance.  And, in December, the U.S. Department of Justice released a violence reduction “roadmap” based on the Ten Essential Actions framework produced by the Violent Crime Working Group.  The roadmap organizes the department’s grant programs, training and technical assistance, and other resources by the ten action steps; the Police Executive Research Forum will assist jurisdictions seeking to implement the recommended strategies.


  • The U.S. homicide rate began to trend upward in 2015 after a long-running decline.  After reaching a peak in 2021, it remained 24% higher in a sampling of 30 cities in the first half of 2023 than it was before the COVID-19 pandemic.

  • People aged 15 to 19 years old were three times more likely to die by homicide in 2020-2021 than in 1960.

  • Black males were eight times more likely and Black females were four times more likely to die by homicide in 2020-2021 than their White counterparts.

  • Arrests of Black adults for homicide dropped 65% from 1980 to 2020, but Black people were six times more likely to be arrested for homicide in 2020 than White people.

  • Since 2020, more than three-quarters of homicides have been committed with guns. This marks an increase from 1980 to 1990, when firearms were used in fewer than two-thirds of reported homicides.

  • The homicide clearance rate has dropped steadily since the 1960s. In 2022, the clearance rate was about 50%, meaning that just half of murders resulted in an arrest and fewer than half resulted in a conviction.

December 19, 2023 in National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Monday, December 18, 2023

Possible Florida test case for new capital child rape statute now in the works

Almost eight months ago, I asked in this post: "With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?"  In that post, I wondered aloud "about the facts of any 'Kennedy test case', [and] how long it might take to get to SCOTUS."  As reported in this recent press peice, we now have a a possible test case getting started: 

In a first for the state of Florida, prosecutors in the Sunshine State will be pursuing capital punishment against a man accused of raping a child where no death occurred under a new law that runs counter to the U.S. Supreme Court’s current Eight and Fourteenth Amendment precedent.

The Fifth Judicial Circuit State Attorney Office on Thursday filed court documents stating its intent to seek the death penalty against 36-year-old Joseph Andrew Giampa, who was indicted by a grand jury on six counts of sexual battery on a child under age 12 and three counts of promoting a sexual performance of a child. According to a news release from the state attorney’s office, prosecutors want to put Giampa to death due to “the severity of the crime and its impact on the community.”

The notice filed in Lake County Circuit Court lists numerous aggravating factors, which prosecutors say implore the state to seek the death penalty. Such factors include that the crime was committed for “pecuniary gain,” it was “especially heinous,” the victim was “particularly vulnerable,” and Giampa had previously been convicted of a violent felony....

According to a probable cause affidavit obtained by Law&Crime, authorities responded on Nov. 2 to Giampa’s home about a possible sexual battery. Once there, deputies detained Giampa. In his camper, deputies said there was a computer with a video showing an adult sexually assaulting a child under 12. After the sexual assault, the assailant who was recording the attack “set the camera down” and then “walked in front of the camera.” Authorities said the adult male in the recording was Giampa. Giampa then sexually assaulted the juvenile several more times as the video continued before exiting the room as “the juvenile victim begins cleaning up in view of the camera.”

The case is certain to pose constitutional challenges as the legislation adopted and signed by Gov. Ron DeSantis earlier this year is patently contra to the Supreme Court’s 2008 case Kennedy v. Louisiana, which prohibits the death penalty as punishment “where no life was taken in the commission of the crime.”...

Of the four justices who dissented — Samuel Alito, John Roberts, Antonin Scalia, and Clarence Thomas — three are still on the court, while all five of those who voted in the majority have been replaced, predominantly by justices whose overall judicial ideology is far more right-leaning.

The legislation’s text explicitly states that the high court’s earlier rulings on death penalty prohibitions were “wrongly decided and that such cases are an egregious infringement of the states’ power to punish the most heinous of crimes.”

DeSantis already released a statement indicating his intent to take the case up with the justices. “Today, the State’s Attorney for the Fifth Judicial Circuit announced that they will seek the death penalty in a case of sexual battery against a child under age 12,” he wrote in a Facebook post. “It will be the first case to challenge SCOTUS (U.S. Supreme Court) since I signed legislation to make pedophiles eligible for the death penalty. The State’s Attorney has my full support.”

Because I do not know the intricacies of Florida criminal procedure, I do not know if there are (appealable) means for the defendant here to seek some kind of dismissal/striking of the capital aspect of these charges.  I noted in my prior post that the Florida death penalty law, House Bill 1297, states expressly that "a sentence of death shall be imposed under this section notwithstanding existing case law which holds such a sentence is unconstitutional under the Florida Constitution and the United States Constitution."   But is it really proper for a state judge to entertain and allow criminal charges to move forward contrary to on-point state and federal constitutional law?  (Imagine if New York passed a statute, hoping SCOTUS might change its approach to the Second Amendment since Bruen is proving problematic, that ordered state courts to enforce a problematic gun law "notwithstanding existing case law.")

Whatever the possible procedures at an early stage of Florida's capital litigation, I wonder if the defendant here may be eager to seek to plea given what sounds like damning evidence of guilty.  Indisputably guilty murderers who face capital charges often offer to plead guilty to avoid a possible death sentence, but a prosecutor must be willing to make such a plea deal.  It will be interesting to see if this local Florida prosecutor will want to persistently pursue this capital charge which is certain to come with years and years of litigation.

Prior related post:

December 18, 2023 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (13)

Friday, December 15, 2023

Noting the already notable echoes of SCOTUS cert grant in Fischer Jan 6 case

A couple of days ago, as noted in this post, the Supreme Court granted cert in Fischer v. USNo. 23-5572Fischer arises from a Jan 6 prosecution in DC and raised issues as to the scope and reach of 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations.  I believe there are hundreds of other Jan 6 defendants who have or had faced such a charge, and this new CBS News article highlights how the SCOTUS grant is already having ripples in other cases:

Just days after the Supreme Court agreed to examine the breadth of an obstruction law used to prosecute hundreds of defendants for their alleged actions during the Jan. 6, 2021, Capitol riot, the court's very consideration of the law is already being invoked in both federal district court proceedings and by those already convicted in high-profile Jan. 6 cases.  In one such hearing Friday, U.S. District Judge Beryl Howell warned of a possible backlog of cases involving the federal statute, known as 1512, which accuses defendants of obstructing an official proceeding....

The Justice Department has charged more than 327 defendants with the crime, which carries a maximum of 20 years in prison, and more than 50 have pleaded guilty to the count, according to a CBS News review of court documents and proceedings. Former President Donald Trump has also been charged with two counts under the obstruction law — conspiracy to obstruct an official proceeding and obstruction of an official proceeding — by special counsel Jack Smith. He has pleaded not guilty to both of these counts, as well as two others that arose over his alleged actions in the wake of the 2020 presidential election.

Howell said from the bench Friday she has heard from fellow judges in Washington's federal district court that they have already come across requests from Jan. 6 defendants who are either charged with or have pleaded guilty to the obstruction charge and are now asking to pause proceedings until the Supreme Court determines whether the statute can be applied to Jan. 6-related conduct.  Howell said that such requests are not "unreasonable" and suggested a federal prosecutor narrow a plea offer involving the 1512 count to focus on another charge to avoid delaying the case.  Howell indicated the judges in the court could encounter backlogs in scheduling because of the high court's review....

Gene Rossi, a former federal prosecutor who went on to represent a member of the Oath Keepers charged for his conduct on Jan. 6, said a Supreme Court ruling that is favorable to defendants could benefit those who either pleaded guilty to obstruction or were convicted of violating the statute.  Defendants whose cases have already been adjudicated can return to the trial court and request either new trials or lesser sentence. The obstruction charge "permeated" every major Jan. 6 trial in the district court in Washington, he said.  "The 1512 charge for the prosecutors was their gold standard, it was their North Star. It was the capstone of their prosecutions," Rossi told CBS News. "If the Supreme Court removes that capstone, that gold star, that North Star, that could be a tremendous game-changer for many defendants."

For defendants whose cases are in earlier stages and have not yet gone to trial, Rossi said the Supreme Court's decision to hear the case helps them, and may change how prosecutors pursue plea agreements.  "The Supreme Court's acceptance of this case for argument is a significant bargaining chip because any smart, wise and seasoned prosecutor would say listen, I'm not going to insist on 1512 because there's a risk, and if the defendant wants to plead to lower charges, lower felonies or misdemeanors, I'd rather have a bird in the hand than risk not having anything," Rossi said....

Already, high-profile defendants have asked for temporary remedies in their cases as the justices consider Fischer's appeal.  On Wednesday, former Oath Keepers affiliate Thomas Caldwell asked the federal judge overseeing his case to delay his sentencing scheduled for later this month.  Caldwell was acquitted of more serious charges but convicted of the 1512 obstruction statute after standing trial with leader Stewart Rhodes.

"The government is requesting a 14-year sentence for Caldwell based almost entirely upon his finding of guilt" on the obstruction charge, his attorney David Fischer wrote, asking the judge to put a hold on the sentencing until the high court rules.  "We believe that Mr. Caldwell will ultimately be exonerated by a favorable ruling in the Supreme Court, and therefore believe it is appropriate to delay his sentencing," Fischer told CBS News in a statement.

Another high-profile defendant, Kevin Seefried, who rose to prominence after he was seen carrying a Confederate flag throughout the Capitol at the height of the breach, asked a federal judge in Washington to release him from his three-year prison sentence as the case is considered. Seefried was convicted of five counts including obstruction of an official proceeding and disorderly conduct last year and has since challenged the legality of the 1512 statute himself.  His lawyers argued in court filings Friday that if the obstruction count is dismissed, his prison sentence should be substantially reduced. "A favorable resolution of the substantial question raised by Mr. Seefried is very likely to result in a sentence less than the total of the time he has already served given the expected duration of the appeal process," the attorney wrote.

A lawyer for Donovan Crowl, a member of the Oath Keepers who was convicted in July of conspiracy to obstruct an official proceeding and civil disorder, asked Judge Amit Mehta on Friday to pause his sentencing, set for Jan. 12, pending the Supreme Court's resolution of Fischer's case.  If the 1512 conviction is tossed out as a result of a ruling from the high court, Crowl's sentencing "would be materially impacted," as a number of factors that courts consider at sentencing would be more favorable to Crowl, his lawyer Carmen Hernandez argued in a filing.  Hernandez told CBS News she sought to have Crowl's sentencing pushed back because she thinks the Supreme Court case "bodes well" for Jan. 6 defendants.

December 15, 2023 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

Sunday, December 10, 2023

Thorough account of sentencing of Michigan school shooter Ethan Crumbley to LWOP

Constitutional law now requires a juveline murderer can be sentenced to life without parole "only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment."  Jones v. Mississippi, 141 S.Ct. 1307, 1311 (2021).  Last week in Michigan brought these procedural realities into sharp relief in the sentencing of a high-profile school shooter.  This Detroit Free Press article provides a very lengthy and quite wrenching account of the sentencing and victim statements. Here are a few excerpts focused on some legal particulars:

In the end, whatever mental illness Ethan Crumbley may have, the judge concluded it did not interfere with the teen's ability to plan and carry out the deadliest school shooting in Michigan's history.

Rather, Oakland County Circuit Court Judge Kwame Rowe said in locking up the teenage killer forever, Crumbley has an obsession with violence, planned the massacre for weeks in advance, carried it out — and chose to stay alive so that he could witness the suffering and enjoy the notoriety he desired.

Mental illness, the judge noted, didn't interfere with any of that. “This started with him asking for a better gun to carry out the school shooting," Rowe said of the killer, who was sentenced to life without the possibility of parole Friday for the 2021 massacre that killed four Oxford High School students and injured seven others, including a teacher.

“He could have changed his mind (after shooting his first victim)," Rowe said in handing down the sentence. “But he didn’t. He continued to walk through the school picking and choosing who was going to die.”...

Crumbley's punishment was handed down after a day of gut-wrenching statements from grieving parents, victims who survived and traumatized students whose sense of security has forever been shattered, including a 16-year-old student who looked at the killer in court and said: "Today I want you to look at me.” Crumbley, who kept his head down nearly the entire hearing, briefly glanced up to look at the girl....

In pushing for the harshest punishment possible, Oakland County Prosecutor Karen McDonald argued Crumbley's crimes triggered a tsunami of trauma for scores of students, parents and an entire community. All of it could have been avoided, she said, but the teen chose to keep his plan a secret. "He could have disclosed that he had a gun and was planning to shoot up his school, but he did not," McDonald said.

"Today was about victims. We heard their voices," the prosecutor said. But the trauma was far more severe than what was heard in court, she said, noting the parents suffered far more than what they discussed Friday....

Crumbley pleaded guilty to murder and terrorism charges last year, admitting he planned and carried out the shooting, and meant to cause panic and fear in the school that day. In September, Rowe determined that Crumbley was eligible for a sentence of life without parole following a lengthy and emotional Miller hearing, a mandatory proceeding that helps judges decide whether juveniles should spend the rest of their lives in prison.

Meanwhile, his parents, James and Jennifer Crumbley, continue to maintain their innocence in the unprecedented case as the first parents in America charged in a mass school shooting. They are accused of ignoring their son's mental health troubles and buying him a gun instead of getting him help — the same gun he used in the November 2021 massacre.

The parents maintain they had no way of knowing their son would shoot up his school, and that the gun was safely stored. They will face separate trials in January on involuntary manslaughter charges.

December 10, 2023 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Thursday, December 07, 2023

"Firearms Carceralism"

The title of this post is the title of this notable new article authored by Jacob Charles and now available via SSRN. Here is its abstract:

Gun violence is a pressing national concern.  And it has been for decades.  Throughout nearly all that time, the primary tool lawmakers have deployed to staunch the violence has been the machinery of the criminal law.  Increased policing, intrusive surveillance, vigorous prosecution, and punitive penalties are showered on gun offenders.  This Article spotlights and specifies this approach — what it calls “firearms carceralism” — and details how a decades-long bipartisan consensus generated a set of state-centered solutions to gun violence that has not meaningfully impacted the problem.  Instead, those policies have exacerbated racial inequity and compounded civic and community harms.

The Article traces the escalating punitive measures visited on gun offenders over the past half century.  It first peers down into one microcosmic exemplar of firearms carceralism etched into federal mandatory minimum provisions and Supreme Court case law magnifying those penalties.  It describes how criminal justice reforms have traditionally excluded those whose offenses are categorized as violent, and specifically and emphatically those who offend with guns by their side.  It then draws out promising hints of a path to including gun offenders in efforts to reform the criminal legal system.  Most fundamentally, however, the Article wages a sustained critique of the system of firearms carceralism that fronts aggressive law enforcement and draconian terms of incarceration.  It describes the unjustifiable breadth and depth of these practices and the harmful, racialized, and exclusionary values they simultaneously draw from and reinscribe.

Finally, the Article argues in favor of three alternative paths for equitable peace and safety.  First, it outlines private sector steps to, for example, dampen illicit firearms supply.  Second, it highlights civil legal interventions like red flag laws and tort lawsuits against irresponsible gun sellers.  Third, and most prominently, it underscores the promise of community violence intervention and restorative justice programs to bring meaningful safety apart from the carceral tools of coercive control.

December 7, 2023 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, December 05, 2023

Local judge allows assaulter to serve some of her jail time by serving fast food

This new Washington Post piece, headlined "Woman sentenced to fast-food job after hurling Chipotle bowl at worker," reports on a notable local crime resulting in a notable fitting sentencing provision.  Here are the details:

Emily Russell was a store manager at an Ohio Chipotle when an irate customer hurled a chicken burrito bowl at her face. Now a judge has sentenced the customer to work at a fast-food job to avoid further jail time.

Rosemary Hayne, 39, was found guilty of one count of assault on Nov. 28 after admitting to throwing the burrito bowl at Russell in September.... Hayne’s behavior went viral in a video showing her screaming at Russell, 26, then grabbing her food and throwing it directly in Russell’s face.

At first, Hayne was slated to pay a fine and undergo a 180-day jail term, with 90 days suspended. However Gilligan offered her a chance to reduce her sentence with a highly unusual proposition. The judge presented her with an opportunity to cut her sentence by 60 days in exchange for consenting to work 20 hours per week at a fast-food restaurant for two months. Hayne agreed.

In the courtroom, Russell, the victim, told the judge the past two months have been the worst of her life. And she said she deals with the trauma of the incident daily. She told The Washington Post that she was protecting a 17-year-old employee who was getting yelled at by Hayne. She remade her order twice and included extra protein and other ingredients to appease Hayne, she said. Hayne left with her food but returned a few minutes later. “She started screaming at me. … The next thing I knew she threw the food in my face. I was so embarrassed and in shock.”...

Russell, who worked at Chipotle for more than four years, and has been in the service industry for nine, says she had drinks and sandwiches thrown at her by customers but never experienced something so violent at work before....

She has gotten supportive comments from people across the United States and is glad to share her story if it can help other fast-food workers. “Everyone has bad days, but it should never come to a point where you have to mistreat a human being,” she said. She’s happy with the judge’s sentence, saying “she got exactly what she deserved” and now gets to walk in her shoes.

December 5, 2023 in Criminal Sentences Alternatives, Offense Characteristics | Permalink | Comments (6)

Sunday, November 26, 2023

SCOTUS hearing two criminal cases to start latest argument session

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

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

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

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

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

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

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

November 26, 2023 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 20, 2023

Supreme Court grants cert on application of Sixth Amendment rights for key issue for applying ACCA

In this post two weeks ago, I flagged the Supreme Court filing by the United States in response to a cert petition in an Armed Career Criminal Act (ACCA) case in Erlinger v. US, No. 23-370.  In that post, I noted the feds wanted cert granted in this case:

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

This morning, via this order list, the Supreme Court granted cert in Erlinger. Here is the formal Question Presented from the federal government's cert petition:

Whether the Constitution requires that a jury find (or the defendant admit) that a defendant’s predicate offenses were “committed on occasions different from one another” before the defendant may be sentenced under the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(1).

And though this case deals with a relatively little issue in the application of ACCA, I cannot help but wonder if this case could prove to be a big Sixth Amendment case.  Notably, we have not had a significant Sixth Amendment case on sentencing issues before SCOTUS since Haymond, and that was before Justices Barrett and Jackson were member of the Court. Moreover, as I noted in my prior post, Justice Thomas has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights (on originalist grounds), so maybe this ACCA issue could even provide the Court an opportunity to reconsider that (historically suspect) exception altogether.

I assume Erlinger v. United States, will get argued in the spring and may end up one of the last (small?) cases to get decided by the Justices this Term.  I also expect that SCOTUS will end up appointing someone to defend the Seventh Circuit's decision below since both the feds and the defendant here have the same (pro-defendant) view of this issue.

November 20, 2023 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

Monday, November 13, 2023

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

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

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

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

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

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

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

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

Prior related post:

November 13, 2023 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, November 09, 2023

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

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

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

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

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

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

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

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

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

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

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

November 9, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Split Oklahoma Pardon and Parole Board recommends clemency for condemned inmate based on (jury-rejected) self-defense claim

As detailed in this AP piece, the "Oklahoma Pardon and Parole Board narrowly voted Wednesday to recommend sparing the life of a man set to be executed later this month for what he claims were the self-defense killings of two men in Oklahoma City in 2001." Here is more:

The board voted 3-2 to recommend clemency for Phillip Dean Hancock, who has long maintained he shot and killed Robert Jett Jr., 37, and James Lynch, 58, in self-defense after the two men attacked him.  Republican Gov. Kevin Stitt must now decide whether to grant clemency to Hancock, who is scheduled to receive a lethal injection on Nov. 30.

The board’s decision came after it heard from Hancock, 59, his attorneys, lawyers from the state and members of Jett and Lynch’s families.  Two Republican state legislators who say they strongly support the death penalty, Reps. Kevin McDugle and Justin Humphrey, also testified on Hancock’s behalf. “If any one of us were in that same exact situation ... we would have fought for our lives,” said McDugle, R-Broken Arrow.

Hancock’s attorneys claim that Jett and Lynch were members of outlaw motorcycle gangs who lured Hancock, who was unarmed, to Jett’s home and that Jett ordered him to get inside a large cage before swinging a metal bar at him. After Jett and Lynch attacked him, Hancock managed to take Jett’s pistol from him and shoot them both....

But attorneys for the state argued Hancock gave shifting accounts of what exactly happened and that his testimony didn’t align with the physical evidence at the scene.  Assistant Attorney General Joshua Lockett said the jury took all of this into account before rendering its verdict, which has been upheld by numerous state and federal appeals courts. “Hancock’s credibility was absolutely eviscerated at trial because his claims conflicted with the evidence,” Lockett said.

Lockett also said after Hancock shot Jett inside the house, a witness who was at the scene testified Hancock followed Jett into the backyard and heard a wounded Jett say: “I’m going to die.” Hancock responded, “Yes, you are,” before shooting him again, Lockett said. “Chasing someone down, telling them you are about to kill them and then doing it is not self-defense,” Lockett said.

Jett’s brother, Ryan Jett, was among several family members who testified and urged the panel not to recommend clemency.  “I don’t claim that my brother was an angel by any means, but he didn’t deserve to die in the backyard like a dog,” Ryan Jett said.

Hancock also was convicted of first-degree manslaughter in a separate shooting in 1982 in which he also claimed self defense. He served less than three years of a four-year sentence in that case....

Stitt has granted clemency only one time, in 2021, to death row inmate Julius Jones, commuting his sentence to life without parole just hours before Jones was scheduled to receive a lethal injection.  Stitt has denied clemency recommendations from the board in two other cases: Bigler Stouffer and James Coddington, both of whom were later executed.

November 9, 2023 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 07, 2023

Council on Criminal Justice’s Crime Trends Working Group releases "Shoplifting Trends: What You Need to Know"

Via email, I received notice of this notable new report released today by Council on Criminal Justice.  The report is titled  "Shoplifting Trends: What You Need to Know November 2023" and was authored by Ernesto Lopez, Robert Boxerman and  Kelsey Cundiff.  Here is part of the report's "Introduction" and "Key Takeaways":

Since shortly after the onset of the COVID-19 pandemic, the Council on Criminal Justice has tracked changing rates of violent and property crime in large cities across the United States. The pandemic, as well as the social justice protests during the summer of 2020 and other factors, have altered the motives, means, and opportunities to commit crimes.

Retail theft, especially organized retail theft, has received extensive media coverage and has caught the attention of policymakers. Dozens of shoplifting and “smash and grab” incidents in a variety of cities have been captured on video and have gone viral on social and mass media. Major grocers, drugstores, and other retail outlets have cited shoplifting as their reason for closing multiple locations and placing goods behind counters and in locked cases. California allocated $267 million in 2023 to a new initiative to combat retail thefts. In June 2023, the House Judiciary Subcommittee on Crime and Federal Government Surveillance held a hearing on incidents of organized retail theft.

Prepared for the Council on Criminal Justice’s Crime Trends Working Group, this report focuses on trends in shoplifting, a subset of retail theft which, in turn, is a subset of overall larceny-theft. The FBI defines larceny-theft as the unlawful taking of property without force, violence, or fraud.

The report looks at shoplifting patterns from before the onset of the COVID-19 pandemic through mid-year 2023. To date, attempts to measure changes in retail theft, including organized retail theft, have relied on retail industry data or have been limited to one state.

The city-specific data included in this report are drawn from open-data sources from 24 cities that, over the past five years, have consistently reported specific shoplifting data. Additional data come from the U.S. Justice Department’s National Incident-Based Reporting Program (NIBRS). The NIBRS data include a sample of 3,812 local law enforcement agencies. The analyses examine the changing frequency of reported shoplifting, trends in other property offenses, changes in the value of stolen goods, offenses that co-occur with shoplifting, and the number of people involved in each incident....

Shoplifting incidents reported to police have rebounded since falling dramatically in 24 large American cities during 2020. But whether the overall tally is up or down compared with pre-pandemic levels depends on the inclusion of New York City. With New York’s numbers included, reported incidents were 16% higher (8,453 more incidents) in the study cities during the first half of 2023 compared to the first half of 2019; without New York, the number was 7% lower (-2, 552 incidents).

New York (64%) and Los Angeles (61%) had the largest increases in reported shoplifting among the study cities from mid-year 2019 to mid-year 2023. St. Petersburg (-78%) and St. Paul (-65%) had the largest decreases.

Comparing the most recent trends, from the first halves of 2022 and 2023, Los Angeles (109%) and Dallas (73%) experienced the largest increases among the study cities; San Francisco (-35%) and Seattle (-31%) saw the largest decreases.

Shoplifting generally followed the same patterns as other acquisitive crimes (except motor vehicle theft) over the past five years, according to the FBI’s national data. But unlike other types of larcenies, shoplifting rates remained below pre-pandemic levels through 2022.

November 7, 2023 in National and State Crime Data, Offense Characteristics | Permalink | Comments (13)

Monday, November 06, 2023

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

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

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

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

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

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

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

A few prior related posts:

November 6, 2023 in Offender Characteristics, Offense Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (3)

Friday, November 03, 2023

Prohibiting Punishment of Acquitted Conduct Act receives unanimous bipartisan support in US House Judiciary Committee

I noted in this post a few days ago that the US House of Representative Committee on the Judiciary on November 2 had a markup scheduled on a set of bills including the Prohibiting Punishment of Acquitted Conduct Act of 2023 (HR 5430).   I predicted that HR 5430 bill would move forward, but I was still pleased to see this press release from a bill sponsor about what transpired:

Congressman Steve Cohen (TN-9) today led the Prohibiting Punishment of Acquitted Conduct Act through the Judiciary Committee.  His bipartisan measure was approved 23 to 0.  In September, Congressman Cohen introduced the bipartisan, bicameral measure with Representative Kelly Armstrong and Senators Dick Durbin and Chuck Grassley. This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  It will now advance to the full House of Representatives for a floor vote.

During today’s markup of the bill, Congressman Cohen said in part:  “I would like to emphasize that Kelly Armstrong (R-N.D.) was a strong supporter and an excellent cosponsor and I appreciate him and Senators (Dick) Durbin and (Chuck) Grassley on the Senate side as sponsors. Just about every Supreme Court Justice who’s been around lately – John Paul Stevens, Anthony Kennedy, and Antonin Scalia…Ruth Bader Ginsberg, Clarence Thomas, going down to (Neil) Gorsuch and (Brett) Kavanaugh have all said this needs to be changed.  So with that I would ask that we move forward and arrive at justice.  People should be convicted of proven crimes and sentenced for those crimes. That’s why we need this bill – to make sure that people are only sentenced for the crimes they were convicted of.”

So now we know that there is a least one issue that can garner bipartisan and even unanimous support in the US Congress, namely a statutory reform to prohibiting federal punishment based on acquitted conduct.  This notable vote committee certainly does not ensure Congress will get this bill to the desk of the President, but it should serve as a strong message to the US Sentencing Commission that it should have bipartisan support for any acquitted conduct reforms it might be considering during its current amendment cycle.

November 3, 2023 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, November 02, 2023

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

This CNBC article reports on the high-profile federal jury convictions handed down this evening.  Here are the highlights with an eye on sentencing prospects:

A jury has found Sam Bankman-Fried guilty of all seven criminal counts against him. The FTX founder faces a maximum sentence of 115 years in prison.

Bankman-Fried, the 31-year old son of two Stanford legal scholars and graduate of Massachusetts Institute of Technology, was convicted of wire fraud and conspiracy to commit wire fraud against FTX customers and against Alameda Research lenders, conspiracy to commit securities fraud and conspiracy to commit commodities fraud against FTX investors, and conspiracy to commit money laundering.

He had pleaded not guilty to the charges, which were all tied to the collapse late last year of FTX and sister hedge fund Alameda. “Sam Bankman-Fried perpetrated one of the biggest financial frauds in American history,” Damian Williams, U.S. attorney for the Southern District of New York, said in a briefing after the verdicts were read. “The cryptocurrency industry might be new. The players like Sam Bankman-Fried, Fried might be new. But this kind of fraud, this kind of corruption, is as old as time and we have no patience for it.”

The trial, which began in early October, pitted the testimony of Bankman-Fried’s former close friends and top lieutenants against the sworn statements of their former boss and ex-roommate. The jury returned a swift verdict after receiving the case at around 3:15 p.m. on Thursday....

Judge Kaplan thanked the jurors for their service, and they were escorted out. Kaplan then asked about the second trial Bankman-Fried is facing on March 11. The government has until Feb. 1 to to let the court know if it it plans to still proceed. The sentencing date is March 28 at 9:30 a.m....

The monthlong trial was highlighted by testimony from the government’s key witnesses, including Caroline Ellison, Bankman-Fried’s ex-girlfriend and the former head of Alameda, and FTX co-founder Gary Wang, who was Bankman-Fried’s childhood friend from math camp. Both pleaded guilty in December to multiple charges and cooperated as witnesses for the prosecution. Most of the defense’s case was built on the testimony of Bankman-Fried himself, who told the court that he didn’t commit fraud or steal customer money, but just made some business mistakes.

The central question for jurors to consider was whether Bankman-Fried acted with criminal intent in taking customer funds from FTX and using that money to pay for real estate, venture investments, corporate sponsorships, political donations and to cover losses at Alameda after crypto prices plunged last year....

Bankman-Fried now awaits sentencing. His case has been compared to that of Elizabeth Holmes, the founder of medical device company Theranos, which ceased operations in 2018. Holmes, 39, was convicted in early 2022 on four counts of defrauding investors in Theranos after testifying in her own defense. She was sentenced to more than 11 years in prison, and began serving her punishment in May at a minimum-security facility in Bryan, Texas.

For sentencing purposes, I do not think Elizabeth Holmes is a perfect comparison for Sam Bankman-Fried.  But I expect SBF's lawyers are going to be eager to argue that Holmes and her sentence provide a proper benchmark for SBF's sentencing.  But I also expect the guideline range calculated for SBF to be higher than Holmes' calculated guideline range; in fact, it seem likely that the guidelines will recommend a life sentence for SBF.

But, of course, because the guidelines are only advisory, Judge Lewis Kaplan will have to assess all the 3553(a) factors to decide what sentence for SBF is "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress in 3553(a)(2). Though sentencing is not scheduled to take place for nearly five months, it is surely not too early for folks to use the comments to share their own views on a "sufficient, but not greater than necessary," sentence for SBF.

November 2, 2023 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (33)

Notable coverage of Third Circuit's latest jolt to loss calculation in federal fraud guidelines

In this post more than 30 months ago, I asked "Did a Sixth Circuit panel largely decimate the federal sentencing fraud guidelines (and perhaps many others)?"  That post was focused on US v. Riccardi, No. 19-4232 (6th Cir. Mar. 3, 2021) (available here), where the panel ruled that a quirky part of the commentary to the 2B1.1 fraud guideline improperly expanded the guideline term "loss."  I thought that ruling could further undermine the key 2B1.1 guideline commentary stating that "loss is the greater of actual loss or intended loss."  Notably, last year in US v. Banks, No. 19-3812 (3d Cir. Nov. 30, 2022) (available here), a Third Circuit penal embraced that thinking when holding that "the loss enhancement in the Guideline’s application notes impermissibly expands the word 'loss' to include both intended loss and actual loss." 

Savvy administrative law folks (or regular readers) likely know that this jurisprudence flows from the Supreme Court's work in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which recast  "the deference [courts] give to agencies ... in construing agency regulations."  (Of course, the Kisor case had nothing to do with the federal sentencing guidelines, but lower courts have since grappled with whether and when Kisor means that the commentary to the guidelines no longer should always be followed.)  And savvy white-collar practitioners  likely know that this jurisprudence can be an especially big deal in high-profile fraud cases.  And this week, Bloomberg News has this lengthy discussion of some of the fall-out of the Banks ruling under the headline "Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling."  I recommend the piece in full, and here are extended excerpts:

In the case of [Gary] Frank, who pleaded guilty in 2019 to inflating the revenue of his legal benefits company to borrow millions, there was a big difference between the amount he intended to cheat his victims (as much as $150 million) and their actual losses (as much as $34 million).  And that just may help him get out of prison early.

The fallout started last year after the 3rd Circuit US Court of Appeals ruled that Frederick Banks, a Pennsylvania man convicted of attempting to dupe Gain Capital Group LLC out of $246,000, should be resentenced.  The online trading company, the court found, suffered no actual losses given that it never sent him the funds.  The Banks decision is significant since the gap between actual and intended losses in fraud cases can be vast, greatly skewing the amount of prison time from barely any to more than a decade.

“The No. 1 variable that moves the needle in sentencings for white collar cases is the loss amount,” said Andrew Boutros, a white-collar defense attorney at Dechert. “The loss amount has a huge impact on the ultimate advisory sentencing range that the court calculates.”...

The ruling has sparked a debate on how much deference to give the US Sentencing Commission’s interpretation of its own guidelines, which includes a scale for federal judges across the country to follow for ratcheting up prison time based on losses to victims.  The commission suggests in its commentary using the greater of actual or intended loss when determining sentences.  But the appellate panel in Banks used a Supreme Court decision to challenge the commission’s authority to interpret its own rules in finding that only actual loss should be used to calculate sentences.

Prosecutors have tried to persuade judges that the sentencing commission’s interpretation deserves deference.  The Justice Department has warned that relying only on actual losses would let certain defendants off the hook who are unsuccessful in pulling off a scheme.  Defense attorneys for years have argued that relying on intended loss under the commission’s guidelines leads to overly harsh sentences that don’t reflect the criminal conduct. “We are getting these absurd results where nonviolent criminals are getting extraordinary sentences,” said defense attorney Tama Kudman.

Kudman successfully used the Banks ruling in Florida to persuade a judge that actual losses should only be taken into account when sentencing a lab owner found guilty of billing Medicare for unnecessary genetic tests.  Minal Patel billed Medicare for more than $463 million in tests but the actual loss to taxpayers was $187 million.

The Banks decision could significantly reduce prison time for defendants in securities and commodities cases since it is difficult to figure out actual losses in those situations.  “Prosecutors often rely upon intended loss as a proxy for actual loss in securities and commodities fraud cases,” wrote Paul Hastings attorneys in a client alert.  “This practice has allowed the government to calculate large loss amounts and seek high guidelines sentences where actual loss is incalculable or impractical to determine.”  It could also impact charging decisions, especially in 3rd Circuit territory, where prosecutors may think twice about devoting resources to cases with small actual losses.

In the year since the Banks ruling, defense attorneys have had limited success using the decision outside of the 3rd Circuit, which covers Pennsylvania, New Jersey, Delaware and the Virgin Islands.  In December, a federal judge in Michigan sided with the Banks ruling in a case involving a defendant who pleaded guilty to fraud against JPMorgan.  The judge reasoned that she didn’t have to defer to the sentencing commission because the definition of loss isn’t “genuinely ambiguous.”

In June, a North Carolina federal judge also agreed with the 3rd Circuit decision in supporting a lower sentencing guideline for a man who pleaded guilty to bank fraud against several financial giants, including JPMorgan, Wells Fargo and crypto exchange Coinbase Global Inc.  But the following month, a 6th Circuit panel shot down an attempt by a chemical engineer to rely on the ruling after she was convicted of stealing trade secrets from her former employers.  The panel criticized the 3rd Circuit for imposing a “one-size-fits-all definition” for loss that could “lead to vastly different sentences for similarly culpable defendants.”

In other cases, the 1st and 4th Circuits declined to take a position. “This is a new and fast-developing area of the law, and as of now, we do not have the kind of robust consensus in other circuits,” the 4th Circuit panel wrote.  That’s why some legal experts believe the Supreme Court will need to decide even though it has so far refused to take up the issue.

Judges, prosecutors and defendants have all urged the sentencing commission to make changes.  One defendant who is serving 95 years in prison for a cyber financial fraud scheme argued in an email to the commission to get rid of the intended loss interpretation since “it’s not based on fact, but rather off of subjective interpretation or ‘guess work.’”

November 2, 2023 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, October 26, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 26, 2023 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Thursday, October 19, 2023

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

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

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

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

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

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

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

October 19, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (12)

Tuesday, September 26, 2023

New US Sentencing Commission report covers "Federal Escape Offenses"

The US Sentencing Commission this morning released this new 30+-page report titled simply "Federal Escape Offenses."  This USSC webpage provides a summary and key findings, and here and highlights from the highlights:

This new publication expands upon the Commission’s previous research on federal escape offenses. In this report, the Commission combines data it regularly collects with data from a special coding project to provide a deeper understanding of escape offenses and the individuals who commit those crimes.  The report provides the characteristics of individuals who commit escape offenses, then chronologically examines their criminal histories before the instant offense through their alleged criminal behavior while on escape status. Next it provides information on their subsequent sentencing.  Finally, this report examines their criminal behavior after being released into the community by the recidivism rates of a cohort of individuals released from federal custody in 2010.

  • Escape offenses accounted for less than one percent (0.4%) of all federal offenses between fiscal years 2017 and 2021.

  • Individuals sentenced for escape offenses had extensive and serious criminal histories....

  • Most federal escapes were from non-secure custody. The majority (89.0%) of individuals escaped from a Residential Reentry Center (i.e., a halfway house)....

  • Nearly all (99.2%) individuals sentenced for an escape offense received a sentence of imprisonment. The average term of imprisonment was 12 months.

  • Nearly two-thirds (65.0%) of individuals sentenced for an escape offense were sentenced within the guideline range for their escape crime, compared to 40.2 percent of all other federally sentenced U.S. citizens.

  • The majority (85.7%) of individuals sentenced for an escape offense and released in 2010 were rearrested during an eight-year follow-up period, which was higher than individuals sentenced for any other type of federal offense.  By comparison, one-half (49.2%) of other individuals released in 2010 were rearrested during the same time period.

    • Individuals sentenced for escape offenses were rearrested sooner after release compared to other sentenced individuals. Their median time to rearrest was ten months, compared to 19 months for the remaining 2010 cohort.

September 26, 2023 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (1)

"Moral Judgments and Knowledge about Felony Murder in Colorado: An Empirical Study"

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

With funds provided by a Hughes Pilot grant, I conducted a survey of 523 Colorado residents to determine their knowledge of and moral attitudes towards the felony murder rule.  The survey showed that only a very small fraction of the participants knew that unintended killings in the course of predicate felonies was murder punishable at the time by life without the possibility of parole.  Similarly, only a very small fraction of survey participants believed that persons who committed unintended killings in the course of predicate felonies deserved a murder conviction or sentence of mandatory life without the possibility of parole.  Rather, the mean sentence that survey participants considered just for felony murder was just over six years in prison.  These results substantially undercut the two main justifications given for felony murder, namely deterrence and retribution.

September 26, 2023 in Offense Characteristics, Scope of Imprisonment | Permalink | Comments (4)

Sunday, September 24, 2023

Spotlighting disconcerting comments after a disconcerting crime

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

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

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

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

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

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

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

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

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

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

September 24, 2023 in Offender Characteristics, Offense Characteristics | Permalink | Comments (11)

Friday, September 08, 2023

Friday funnies?: Turkish court imposes sentence of 11,196 years in prison!

I surmise that any number of things associated with cryptocurrencies, including lots of numbers, are unbelievable.  But this Bloomberg story, headlined "Boss of Failed Crypto Exchange Gets 11,000-Year Sentence," has a sentencing number I could hardly believe.  Here are the details:

Faruk Fatih Ozer, who ran crypto exchange Thodex until it imploded in 2021, was sentenced to 11,196 years in prison by a Turkish court for crimes including fraud. Delivering its verdict late Thursday, the court in Istanbul sentenced Ozer and his two siblings to similar-length jail terms, finding them guilty of aggravated fraud, leading a criminal organization and money laundering.

Ozer, a high-school dropout who founded Thodex in 2017 and fled to Albania after Thodex went bust, appeared unrepentant at his final hearing. “I am smart enough to lead any institution on Earth,” state-run Anadolu Agency cited Ozer as saying in court. “That is evident in this company I established at the age of 22. I wouldn’t have acted so amateurishly if this were a criminal organization.”

The total amount of losses investors suffered when Thodex collapsed remains unclear. The prosecutor’s indictment estimates them at 356 million liras ($13 million), but Turkish media have reported figures as high as $2 billion.

I know nothing about Turkish sentencing law and practice, but I do know anyone tempted to calculate average prison terms in that country is now going to come up with a very large number.

September 8, 2023 in Offense Characteristics, Sentencing around the world | Permalink | Comments (4)

Thursday, September 07, 2023

New CRS document explores "Supreme Court’s Narrow Construction of Federal Criminal Laws"

The Congressional Research Service has this notable new "Legal Sidebar" reviews past and recent Supreme Court rulings that limit the scope of federal criminal statutes. This six-page document gets started this way:

Criminal law marks a boundary between conduct that society deems permissible and behavior that it deems worthy of punishment.  Those who cross the line may be subject to penalty and social disapproval.  In addition to punishment, transgressors may face wide-ranging collateral consequences, among other things.

Defendants charged with criminal offenses have mounted various legal challenges to the line drawn by criminal law itself.  One category of legal challenge centers on arguments related to where or how the boundary between lawful and unlawful conduct is established.  For example, defendants have argued that certain criminal statutes are unclear and fail to give fair notice to the public as to what conduct is wrongful; that other criminal statutes improperly reach those with no awareness that they have crossed the line and thus fail to reserve criminal punishment for those who are truly culpable; and that the application of particular criminal statutes in individual circumstances strays beyond what Congress intended or clashes with countervailing constitutional values.

In recent years, the Supreme Court has issued a series of decisions agreeing with defendants that have raised each of these arguments, narrowly construing some criminal statutes in the process.  A federal appellate judge described these rulings as “nearly an annual event.”  In the Court’s latest term, the Justices again issued opinions limiting the reach of specific criminal statutes.  This Sidebar addresses this apparent Supreme Court trend, identifying the substantive reasons why the Court has limited the scope of criminal statutes and offering examples from historic and modern cases.  The discussion and examples are not comprehensive but are representative in nature.  The Sidebar also summarizes four cases from the recently concluded 2022 Supreme Court term — Counterman v. Colorado, Dubin v. United States, United States v. Hansen, and Twitter v. Taamneh — in which the Court narrowly construed the criminal laws and concepts at issue.  The Sidebar closes with considerations for Congress.

September 7, 2023 in Offense Characteristics, Who Sentences | Permalink | Comments (3)

Tuesday, September 05, 2023

Proud Boys leader, Enrique Tarrio, sentenced to 22 years for his role in Jan 6 activities

As reported in this Politico piece, "Enrique Tarrio, the national leader of the Proud Boys on Jan. 6, 2021, was sentenced Tuesday to 22 years in prison for masterminding a seditious conspiracy aimed at derailing the transfer of power from Donald Trump to Joe Biden."  Here is more:

The sentence, the lengthiest among hundreds arising from the Jan. 6 attack on the Capitol, is a reflection of prosecutors’ evidence that the Proud Boys, helmed by Tarrio, played the most pivotal role in stoking the violent breach of police lines and the Capitol itself. “Mr. Tarrio was the ultimate leader of that conspiracy. Mr. Tarrio was the ultimate leader, the ultimate person who organized, who was motivated by revolutionary zeal,” U.S. District Court Judge Timothy Kelly said as he handed down Tarrio’s sentence. “That conspiracy ended up with about 200 men amped up for battle encircling the Capitol.”

Hundreds of Proud Boys from across the country, vetted and assembled by Tarrio and a group of top lieutenants, became a vanguard of sorts as a mob of Trump supporters descended on the Capitol, and members of the group were involved in nearly every breach of police lines that day.  Dominic Pezzola, a New York Proud Boy who triggered the breach of the Capitol itself by smashing a Senate window with a stolen police shield, was sentenced Friday to 10 years in prison.

Tarrio, unlike most of his co-conspirators, was not at the Capitol on Jan. 6. Upon his arrival in Washington on Jan. 4, 2021, he was arrested for his role in the theft and burning of a Black Lives Matter flag from a church after an earlier pro-Trump march. Tarrio was released the next day and ordered to leave Washington D.C., so he headed with a group of allies to a hotel in Baltimore.

Prosecutors say despite his absence, he remained in touch with his men and monitored their actions on Jan. 6. And after the attack, he repeatedly celebrated the attack, defended his allies and regretted that it didn’t fully derail the transfer of power. He was convicted in May of seditious conspiracy, conspiring to obstruct Congress’ proceedings and destroying government property, among other charges.

Tarrio’s sentence closes a significant chapter in the investigation of the Jan. 6 attack. His 22-year sentence is likely to remain the lengthiest for anyone charged in connection with the attack itself — a mark that exceeds the 18-year sentences handed down to Oath Keepers founder Stewart Rhodes and Tarrio’s ally Ethan Nordean....

Kelly, a Trump appointee, appeared largely unmoved by Tarrio’s words of contrition. He emphasized that as the attack unfolded, he used his platform to tell his allies “Don’t fucking leave.” And that night, Tarrio privately told a confidant, “Make no mistake. We did this.” Despite Tarrio’s contrition, Kelly again slammed him for comparing Pezzola to George Washington. “It slanders the father of our country to speak that way,” Kelly said. The judge added that he doesn’t see evidence, despite Tarrio’s apologies, that he feels remorse for the seditious conspiracy for which he was convicted.

September 5, 2023 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (17)

Friday, September 01, 2023

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

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

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

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

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

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

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

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

September 1, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (42)

Thursday, August 31, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

August 31, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (11)

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

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

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

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

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

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

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

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

August 31, 2023 in Collateral consequences, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (5)

Monday, August 21, 2023

Another "Set for Sentencing" podcast focused on acquitted conduct and uncharged conduct and other hot sentencing topics

In a number of past posts, I have highlighted the great podcast created by Doug Passon, a defense attorney and documentary filmmaker, which is called "Set for Sentencing."  I probably should blog about every new weekly episode because Doug produces, week in and week out, a whole lot of terrific sentencing content (and folks can catch up at this archive

I have been honored to speak on the "Set for Sentencing" podcast a few times, and I have had the distinct pleasure of discussing "acquitted conduct" sentencing on the blog multiple times.  As noted via this post from January, Mark Allenbaugh and I first spoke with Doug Passon about proposed amendment to the US Sentencing Guidelines on acquitted conduct and SCOTUS consideration of the issue in an episode titled, "PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences." 

This summer, in the wake of the US Sentencing Commission opting not (yet) to move forward with any Guideline amendments and SCOTUS seemingly deferring to the Commission on this issue, Mark Allenbaugh and I got back together with Doug Passon to tape another episode.  This one is brilliantly titled, "Acquitted Conduct Revisited: Mmmmm... Flavors of Evil."  This new podcast discusses the latest (lack of) developments on acquitted conduct, and also includes some heated discussions of whether and how we ought to distinguish between acquitted conduct and uncharged conduct.  Among other things I learned via this podcast, the definition of "uncharged conduct" can be as unclear as any definition of "acquitted conduct." 

Some of many prior related posts:

August 21, 2023 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Thursday, August 17, 2023

Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty

As reported in this AP piece, the "suspected architect of the Sept. 11, 2001, attacks and his fellow defendants may never face the death penalty under plea agreements now under consideration to bring an end to their more than decadelong prosecution, the Pentagon and FBI have advised families of some of the thousands killed." Here is more:

The notice, made in a letter that was sent to several of the families and obtained by The Associated Press, comes 1 1/2 years after military prosecutors and defense lawyers began exploring a negotiated resolution to the case.

The prosecution of Khalid Sheikh Mohammed and four others held at the U.S. detention center in Guantanamo Bay, Cuba, has been troubled by repeated delays and legal disputes, especially over the legal ramifications of the interrogation under torture that the men initially underwent while in CIA custody. No trial date has been set.

“The Office of the Chief Prosecutor has been negotiating and is considering entering into pre-trial agreements,” or PTAs, the letter said. It told the families that while no plea agreement “has been finalized, and may never be finalized, it is possible that a PTA in this case would remove the possibility of the death penalty.”

Some relatives of the nearly 3,000 people killed outright in the terror attacks expressed outrage over the prospect of ending the case short of a verdict. The military prosecutors pledged to take their views into consideration and present them to the military authorities who would make the final decision on accepting any plea agreement.

The letter, dated Aug. 1, was received by at least some of the family members only this week. It asks them to respond by Monday to the FBI’s victim services division with any comments or questions about the possibility of such a plea agreement. The FBI had no comment Wednesday on the letter....

Jim Riches, who lost his firefighter son Jimmy in 9/11, went to Guantanamo for pretrial hearings in 2009. He remains deeply frustrated that the case remains unresolved 14 years later.  He said he laughed bitterly when he opened the government’s letter Monday. “How can you have any faith in it?” Riches asked.  The update “gives us a little hope,” he said, but justice still seems far off.

“No matter how many letters they send, until I see it, I won’t believe it,” said Riches, a retired deputy fire chief in New York City.  He said he initially was open to the use of military tribunals but now feels that the process is failing and that the 9/11 defendants should be tried in civilian court.

The Obama administration at one point sought to do so, but the idea was shelved because of opposition from some victims’ relatives and members of Congress and city officials’ concerns about security costs.  As the 22nd anniversary of the attacks approaches, “those guys are still alive. Our children are dead,” Riches said.

August 17, 2023 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (10)

Wednesday, August 09, 2023

US Sentencing Commission releases more "Quick Facts" data on economic offenses

This week, the US Sentencing Commission has released another set of its "Quick Facts" publications.  Long-time readers have long heard me praise the USSC for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  Here are the latest postings by the USSC on this  "Quick Facts" page:

August 9, 2023 in Data on sentencing, Detailed sentencing data, Offense Characteristics | Permalink | Comments (0)