Sentencing Law and Policy

Supreme Court unanimously upholds broad reach of federal wire fraud prohibition

The Supreme Court handed down a unanimous opinion (with three interesting concurrences) this morning in Kousisis v. US, No. 23–909 (S. Ct. May 22, 2025) (available here).  Here is the accounting of the votes and opinon writing:

BARRETT, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, KAGAN, KAVANAUGH, and JACKSON, JJ., joined. THOMAS, J., filed a concurring opinion. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment. SOTOMAYOR, J., filed an opinion concurring in the judgment.

Here is how Justice Barrett's opinion for the Court gets started:

Stamatios Kousisis and the industrial-painting company he helped manage, Alpha Painting and Construction Co., secured two government contracts for painting projects in Philadelphia.  Both contracts required the participation of a disadvantaged business—and in its bids for the projects, Alpha represented to the Pennsylvania Department of Transportation (PennDOT) that it would obtain its materials from a qualifying supplier.  See 49 CFR §§26.21(a), 26.5 (2024).  This promise turned out to be an empty one: In addition to using the supplier solely as a pass-through entity, Alpha and Kousisis submitted multiple false certifications to cover up their scheme.  So although Alpha’s paint work met expectations, its adherence to the disadvantaged- business requirement did not.

The Government charged Alpha and Kousisis with wire fraud, asserting that they had fraudulently induced PennDOT to award them the painting contracts. See 18 U. S. C. §1343. Under the fraudulent-inducement theory, a defendant commits federal fraud whenever he uses a material misstatement to trick a victim into a contract that requires handing over her money or property — regardless of whether the fraudster, who often provides something in return, seeks to cause the victim net pecuniary loss. We must decide whether this theory is consistent with §1343, which reaches only those schemes that target traditional money or property interests. See Ciminelli v. United States, 598 U.S. 306, 316 (2023). It is, so we affirm.

Criminal law fans will want to read all the opinions, especially because the concurrences collectively run longer than the majority. I will highlight here the start of Justice Sotomayor's separate opinion because she uses sports well to help capture the ruling:

The Court today rightly rejects petitioners’ request to graft an economic-loss requirement onto the federal wire fraud statute. When a defendant tricks a victim out of their money by promising one thing and delivering something materially different, it is no defense to say that the delivered items are of equal economic value. Statutory text, precedent, and history mandate that conclusion, as the majority explains.  See ante, at 7–16.  Common sense, unsurprisingly, points in the same direction.  A Yankees fan deceived into buying Mets tickets is no less defrauded simply because the Mets tickets happen to be worth the same amount as the promised Yankees ones.  That straightforward conclusion is all that is necessary to resolve this case, and I would go no further.  To the extent the majority appears to speak more broadly, I part ways from its approach.

US Sentencing Commission releases notable new "Quick Facts" on firearm offenses

Earlier this week, the US Sentencing Commission released a few more of its terrific "Quick Facts" publications.  As regular readers know, I find so very interesting all the these 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."  The newest set of postings by the USSC on the "Quick Facts" page involve firearm offenses:

• NEW Section 924(c) (May 2025)
• NEW Section 922(g) (May 2025)

There are so many interesting elements to these data reports, especially against the backdrop of the uptick in Second Amendment litigation since the Supreme Court's landmark Bruen ruling in June 2022.  Notably, the report on 922(g) cases indicates that the number of gun possession sentencings from FY 2022 to FY 2024 declined about 15%.  And yet, there were still more 922(g) sentencings in FY 2024 than in FY 2020.  The USSC document also reports that the average sentencing outcomes in these cases has increased 15% in recent years: "The average sentence imposed was 62 months in fiscal year 2020 and 71 months in fiscal year 2024."

Could Prez Trump's new EO on overcriminalization prompt the US Sentencing Commission to review strict liability guideline enhancements?

As flagged in this post, just a couple of days before he left the Oval Office back in 2021, Prez Trump issued an exective order titled "Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform."  I am pretty sure that EO got quickly repealed in the early days of the Biden Administration.  But with a second stint in the Oval Office, Prez Trump this time prioritized this important criminal justice reform topic with this new EO dated May 9, 2025 titled "Fighting Overcriminalization In Federal Regulations." 

Because I have long been troubled by federal "overcriminalization," and because I have work with various public policy groups on advocating for various mens rea reforms, I am quite pleased to see this new EO.  And, as the title of this post suggests, I am keen to speculate about whether and how the EO could have some sentencing echoes.  The EO merits reading in full, but here are a few excerpts catching my attention:

Many ... regulatory crimes are “strict liability” offenses, meaning that citizens need not have a guilty mental state to be convicted of a crime....

This status quo is absurd and unjust.  It allows the executive branch to write the law, in addition to executing it.  That situation can lend itself to abuse and weaponization by providing Government officials tools to target unwitting individuals....

The purpose of this order is to ease the regulatory burden on everyday Americans and ensure no American is transformed into a criminal for violating a regulation they have no reason to know exists....

Strict liability offenses are “generally disfavored.”  United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978).  Where enforcement is appropriate, agencies should consider civil rather than criminal enforcement of strict liability regulatory offenses or, if appropriate and consistent with due process and the right to jury trial, see Jarkesy v. Securities and Exchange Commission, 603 U.S. 109 (2024), administrative enforcement.

Agencies promulgating regulations potentially subject to criminal enforcement should explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to those offenses....

Strict liability criminal regulatory offenses are disfavored.  Any proposed or final criminal regulatory offense that includes a strict liability mens rea for the offense shall be treated as a “significant regulatory action”...

Because this EO only formally applies only to "a Federal regulation that is enforceable by a criminal penalty" and adresses only executive agencies, the US Sentencing Commission and its federal sentencing guidelines are not subject to any direct mandates via this EO.  But given that the Trump Administration calls it "absurb and unjust" to prosecute persons when underlying conduct may not evince a guilty mental state, it arguably ought also be seen as  problematic for severe sentencing enhancements to be based on astrict liability and entirely untethered from proven criminal intent.  Yet many of the most severe guideline sentencing enhancements — particularly those related to "loss" amounts, to drug type/quantity, and to other quantitative metrics — are "strict liability" enhancements, meaning that persons need not have any culpable mental state connected to specific guideline factors that can double or triple or quadruple the recommended guideline sentence.

Especially give that criminal regulatory offenses will be subject to punishment under the federal sentencing guidelines, I believe this EO ought to, at the very least, prompt the Commission to review all of its existing to make sure mens rea issues are given full concern and due respect at sentencing.  Of course, given that judge have always been required to consider "the nature and circumstances of the offense" and to "provide just punishment" under 18 U.S.C. § 3553(a), mens rea concerns have been a viable element of sentencing arguments and decision-making.  But, the same could be said for the charging discretion of federal prosecutors before this EO, and yet the Trump Administration is here demanding our justice system give more express and focused attention to any "putative defendant’s general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue."  I hope the USSC might, perhaps spurred by both the letter and the spirit of this EO, consider review and revision of its guidelines to minimize the risk of "absurd and unjust" levels of punishment based on strict liability sentencing enhancements.

First plea to manslaughter brings 15-year sentence for NY corrections officer involved in brutal fatal beating of prisoner

I briefly flagged in this post this past December some reporting on the horrific video of multiple guards assaulting prisoner Robert Brooks, who was fatally beaten while handcuffed at Marcy Correctional Facility in Oneida, New York.  Now, as reported in this New York Times article, one of the ten officers involved has pleaded guilty with a fixed sentencing outcome:

One of the 10 corrections officers charged in connection with the vicious beating death of a prisoner in central New York last year pleaded guilty to first-degree manslaughter on Monday. The officer, Christopher Walrath, 37, agreed to a plea deal offered by the prosecution, under which he will spend 15 years in prison and receive five years of post-release supervision.

He is the first officer to take a plea deal in connection with the killing of the prisoner, Robert Brooks, 43, who was beaten to death in December at Marcy Correctional Facility, a state prison in Marcy, N.Y., near Utica.... During an appearance Monday morning before a judge in Oneida County Court, Mr. Walrath confirmed that he improperly left his post and joined the attack on Mr. Brooks in three separate areas of the prison. He said that he beat him in the groin and placed him in a chokehold, both acts that are prohibited by departmental guidelines.

Mr. Brooks was declared dead at a hospital in Utica the day after the beating. William J. Fitzpatrick, the Onondaga County district attorney and the special prosecutor in the case, told reporters on Monday that the attack on Mr. Brooks, who had arrived at the prison just 30 minutes earlier, appeared to have been a sort of violent initiation into life at Marcy Correctional Facility. He called the attack a “welcome to Marcy,” and said it was “emblematic of the problems here and throughout the system.”

Mr. Fitzpatrick said he would continue to prosecute the other nine officers, who have been charged with a range of crimes, including murder, manslaughter and tampering with evidence.... “Nothing in his story exonerates the other defendants,” Mr. Fitzpatrick said of Mr. Walrath after the hearing....

The attack was recorded by body cameras worn by four Marcy officers. Footage from the cameras, which was made public by New York’s attorney general, Letitia James, captured the beating in disturbing detail. The video showed officers wearing boots kicking and punching a shackled Mr. Brooks in the groin and chest, choking him, and pinning him onto an infirmary examination table while they punched him. In the footage, his face is covered in blood and his body appears to be limp....

Mr. Brooks was serving a 12-year sentence for first-degree assault at the time of his death. He had pleaded guilty in 2017 in the stabbing of a former girlfriend in Monroe County, according to court documents and prison records.

Based on my understanding of New York law, Walrath's determinate 15-year sentence for first-degree manslaughter could lead to release in less than 13 years based on good-time credit. Walrath plea lead to the dropping of a second-degree murder charge, which under New York law is subject to a sentence ranging from 15 years to life-with-parole after 25 years.

This local article details the criminal charges against the other nine defendants charged in this case.  It will be interesting to see if a number of other pleas may soon follow and whether they also come with (comparable?) fixed sentencing terms.

Has the US Sentencing Commisison's acquitted conduct amendment had much of an impact (and just how might we tell)?

Almost exactly one year ago (as noted in this post), the US Sentencing Commission voted to amend the US Sentencing Guidelines to "exclude federally acquitted conduct from the scope of relevant conduct considered under the sentencing guidelines, while not abrogating a court’s authority under 18 U.S.C. § 3661."   (This specific account of the amendment comes from this helpful "amendment in brief" document produced by the Commission.)  The amendment, which formally became law on November 1, 2024, means that "federally acquitted conduct" may no longer be used in the calculation of guideline sentencing ranges, but judges still have broad discretionary authority to consider such conduct when determining what exact sentence to impose on a defendant.

The question in the title of this post is prompted not only by the anniversary of the USSC's unanimous vote, but also by Billy Binion's terrific article in the new issue of Reason magazine titled "Not Guilty but Punished Anyway: Sentencing defendants based on acquitted conduct violates basic notions of justice."  I recommend the full article for its effective review of the history and intricacies of acquitted conduct sentencing, as well as its emphasis on the limited legal consequences of the Commission's guideline amendment.  As the article explains, the guideline amendment is just a policy change to the operation of now-advisory guidelines, and so legally has much less impact than might a constitutional ruling (or even congressional enactment) that could place more robust restrictions on the consideration of acquitted conduct at sentencing.  

That all said, "just" the exclusion of federally acquitted conduct from guideline calculations still seems quite important both symbolically and practically.  Of course, USSC data indicate that only a couple hundred defendants are sentenced in federal court after being acquitted on some charges, so it is possible to believe that the USSC's acquitted conduct amendment is likley only to impact (a subset of) the relatively few federal defendants who go to trial and get a split verdict from a jury.  And yet, the long-standing prospect of acquitted conduct guideline enhancements surely has long influenced, at least in some set of cases, how federal defendants, defense attorneys and prosecutors approached plea negotiations.  Even though federal judges still have discretion to consider acquitted conduct at sentencing, might some plea deals in some cases be in some ways influenced by the new reality that acquitted conduct cannot and will not be used in guideline calculations (while, of course, uncharged and dismissed conduct certainly still can and will be so used)?   But just how might we tell -- especially within a federal system of pleas that, as Professor Sam Merchant explains in his article in the latest issue of of the Federal Sentencing Reporter, involves a "framework of fictions." 

In this post a few years ago about acquitted conduct practices, I asked "Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing?".  I have still never gotten a satisfying (or even unsatisfying) answer to this question, though the Reason article suggests some might get a satisfying outcome if the new acquitted conduct amendment were to be made retroactive.  And so I will close this post with that article's closing paragraphs:

If neither Congress nor the Supreme Court intervenes, the sentencing commission's amendment will remain the best hope for critics of acquitted-conduct sentencing. But in addition to the question of whether judges will listen, it remains unclear whether the commission will decide that the amendment should apply retroactively, which would allow resentencing of previously convicted prisoners. Retroactivity could be a lifeline for many defendants—including McClinton, who has now been behind bars longer than the maximum the guidelines recommended based on his convictions.

Jessie Ailsworth was released from federal custody in 2019, but he is still paying close attention to this debate. "I stood with my lawyer and heard 'not guilty' over and over," he told the commission at a March 2024 hearing. His 1996 trial on drug conspiracy charges ended with 28 acquittals and seven convictions: three counts of possessing crack with the intent to sell it, three counts of food stamp fraud, and one count of using a communication facility to distribute drugs. But even though the jury found him not guilty of the most serious charges, the judge relied on those charges in sentencing him to 30 years in prison.

"I learned responsibility, which took some time," Ailsworth explained. "But the hardest lesson I've learned is the lesson I learned at sentencing….Not guilty verdicts are meaningless at sentencing if you have even one guilty verdict. In a system based on justice and fairness, where is the fairness in that?"

It's a question many similarly situated defendants, whose stories often go unnoticed, likely have found themselves asking. It is also a question that jurors, whose mandatory service purportedly serves as a check on the government, may continue to ask themselves.

"Not guilty means not guilty," Judge Reeves said as he unveiled the amendment aimed at curtailing acquitted-conduct sentencing. Time will tell if the government makes good on that promise.

Recent related posts (of hundreds on acquitted conduct over 20+ years):

• US Sentencing Commission votes to promulgate guideline amendment to limit use of acquitted conduct in guideline calculations 
• "Congress Must Abolish Acquitted Conduct Sentencing"
• Once again, a November starts, the new Guidelines are here, the new Guidelines are here!! 
• "New Acquitted Conduct Guideline: An Analysis"

"Sentencing Immigrants"

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

The federal government has created a separate and unequal sentencing system for undocumented immigrants.  Over a third of all federal felony cases involve immigrants charged with the crime of entering the United States.  With Donald Trump returning to the White House, that number will increase significantly.  Under the Federal Sentencing Guidelines, defendants in these cases have their criminal history counted against them twice.  U.S. citizen defendants only have their criminal history counted once.  This results in immigrants suffering significantly larger recidivist enhancements for the exact same prior convictions.  And these double enhancements are determined in a confusing and irrational manner, with multi-year swings turning on minor details like the timing of a deportation order or probation violation. Furthermore, under the First Step Act, undocumented defendants are barred from in-custody programs that can reduce sentences by up to one-third.  They therefore serve a significantly higher portion of their prison terms than do U.S. citizens.

This article details how federal sentencing law explicitly discriminates against undocumented immigrants.  It traces the history of their unequal treatment over the last three decades.  It also proposes a framework for judges to remedy this discrimination: sentencing constitutionalism.  When judges make discretionary sentencing decisions, they can and should enforce constitutional anti-discrimination principles to a greater degree than they do while reviewing legislation.  In keeping with this principle, judges should decline to follow the Sentencing Guidelines in double-counting illegal reentry defendants’ past convictions.  They should also reduce immigrants’ sentences to account for the fact that they serve a higher portion of their prison terms than do citizens.  Equal Protection doctrine erects numerous obstacles to challenging these discriminatory rules.  But judges’ discretionary sentencing decisions need not be constrained by the deference principles built into formal doctrine.  They can and should adhere to a higher standard of equality.  The principle of sentencing constitutionalism is illustrated by federal judges’ widespread rejection of federal crack cocaine sentencing guidelines.  Like crack cocaine sentencing, reentry sentencing is racially discriminatory in design and effect.  And, like they have with crack cocaine sentencing, judges should work to counteract that discrimination.

Judge rejects new Los Angeles DA's request to revoke predecessor's resentencing petition for Menendez brothers

As reported in this Los Angeles Times article, headlined "Menendez brothers to get resentencing after D.A. fails in bid to stop it," yesterday brough a notable development in a notable state resentencing effort. Here are excerpts from a lengthy article:

An L.A. County judge denied Dist. Atty. Nathan Hochman’s bid Friday to revoke a petition to resentence the Menendez brothers that was filed by his predecessor, setting the stage for a hearing that could offer the brothers a path to freedom next week.

Superior Court Judge Michael Jesic denied Hochman’s request after a tense, daylong hearing that saw prosecutors display bloody crime scene photos of the bodies of Jose and Kitty Menendez in a courtroom lined with their relatives, many of whom want their killers, sons Erik and Lyle Menendez, set free.

In October, former Dist. Atty. George Gascón sought to have the brothers resentenced to 50 years to life in prison — a move could have made them eligible for parole as youthful offenders because they carried out the killings before they were 26 years old. After Hochman thrashed Gascón in the November election, he promised to revisit the Menendez case.

Last month, Hochman formally announced his opposition to their release and said he’d ask a judge to rescind Gascón’s petition and only consider his filing as the official position of the district attorney’s office. He focused on the idea that the brothers had not shown proper “insight” into their crimes, but Jesic dismissed that as irrelevant to the resentencing proceedings and said “there was nothing really new” in the analysis of the case offered by Hochman....

Jesic’s ruling on Friday clears the path for a resentencing hearing, which is expected to last at least two days and begin in Van Nuys on Thursday....

While the brothers’ resentencing petition will draw droves of media to a Van Nuys courtroom over the next several weeks, it is not their only potential path to freedom. In addition to their motion for a new trial based on fresh allegations of sexual abuse by their father, Gov. Gavin Newsom is considering the brothers’ application for clemency and directed the state parole board to launch a risk assessment of the brothers.

If they were granted clemency and appeared before the parole board, however, Hochman has vowed to fight their release again.

Some prior related posts:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so
• LA District Attorney announces that he will seek resentencing for the Menendez brothers
• Continuing coverage and comment on Menendez brothers' possible resentencing 
• California Gov to hold off on Menedez clemency decision pending resentencing review by new DA
• New Los Angeles DA asks to withdraw prior DA's motion for resentencing in Menedez brothers' case 

In sentencing memos, feds advocate for 7+ years in prison while George Santos' team urges statutory minimum of 2 years

In this post last August, I asked "what sentence for former US Rep George Santos after his plea to fraud and identity theft?". US District Judge Joanna Seybert is scheduled to provide the official answer to this question at George Santos' scheduled federal sentencing on April 25, 2025.  And yesterday the parties filed their sentencing memoranda, and the AP provides this accounting of the filings:

Prosecutors are seeking more than seven years in prison for disgraced former U.S. Rep. George Santos after he pleaded guilty to federal fraud and identity theft charges.

The U.S. Attorney for the Eastern District of New York argued in a court filing Friday that a significant sentence was warranted because the New York Republican’s “unparalleled crimes” had “made a mockery” of the country’s election system....

Prosecutors also argued that Santos had been “unrepentant and defiant” for years, dismissing the prosecution as a “witch hunt” and refusing to resign from Congress as his web of lies was debunked. They said his claims of remorse after pleading guilty “ring hollow” and suggested he has a “high likelihood of reoffending” given he has not forfeited any of his ill-gotten gains or repaid any of his victims....

In their own sentencing memo Friday, they rejected the notion that Santos will fall back into criminal behavior, noting he has no prior criminal record and also provides “crucial” support to his sister and her young daughter.

They argued for a two-year prison term, which is the mandatory minimum sentence for aggravated identity theft. The lawyers maintain such a sentence is in line with those handed to former U.S. Rep. Jesse Jackson Jr. and other political figures facing similar financial crimes.

They also touted Santos’ cooperation in a separate federal investigation into a Texas man who tried to dupe Santos out of nearly $1 million by posing as a political fixer offering to destroy evidence in his cases. “This sentence, coupled with the significant collateral consequences Mr. Santos has already suffered—including the loss of his congressional seat and public humiliation — would send a clear message that such conduct will not be tolerated,” the lawyers wrote.

The filed memoranda from the parties make for interesting reads. In many cases, the defense sentencing filing is much longer than the the filing by the prosecution. But, as one can discover from the links below, the feds here had a whole lot more to say:

Prosecutors' sentencing letter in United States v. Devolder Santos

Defendant's Sentencing Memorandum in United States v. Santos

In "ghost gun" case, Justice Kavanaugh suggests due process defense "based on lack of fair notice" for potential federal firearm crimes

The Supreme Court this morning decided the so-called "ghost gun" case, Bondi v. Vanderstok, No. 23-852 (March 26, 2025) (available here), which addressed the lawfulnees of an ATF rule interpreting the Gun Control Act of 1968 to cover weapon parts kits.  By a 7-2 vote, the Court rules that the "GCA embraces, and thus permits ATF to regulate, some weapon parts kits and unfinished frames or receivers."  Some small interesting elements for criminal law fans include Justice Gorsuch, who wrote the opinion for the majority, disposing of a "rule of lenity" argument in just a sentence.  Justice Thomas, who authored a lengthy dissent, states at the end that he "would apply the rule of lenity here."

As the title of this post reveleas, the criminal justice item that caught my eye in Vanderstok was a short concurrence by Justice Kavanaugh. Here is his five-paragraph concurrence in full with my empahsis added toward the end:

I join the Court’s opinion in full. I add this concurrence to briefly address mens rea issues with respect to ATF’s 2022 rule.

Under ATF’s rule, an individual or business acting in good faith might nonetheless have substantial difficulty determining when weapon parts kits or unfinished frames or receivers qualify as firearms — and thereby become subject to the Gun Control Act’s licensing, recordkeeping, serialization, and background-check requirements. Some weapon parts kits and unfinished frames or receivers may qualify as firearms, and others may not. See ante, at 13, 21. The line is not entirely clear.  Despite the vagueness of the line, the penalties for violations are significant and can include fines and imprisonment.  See 18 U.S.C. § 924.

But importantly, under the Gun Control Act, someone can be penalized for violating the licensing, recordkeeping, or serialization requirements only if he does so “willfully.” § 924(a)(1)(D).  To prove “willfulness,” the Government must demonstrate that an individual knew that his conduct was unlawful, not merely that he knew the facts that made his conduct unlawful. Bryan v. United States, 524 U.S. 184, 191–196 (1998). Therefore, with respect to ATF’s rule, the “willfulness” requirement should help prevent the Government from unfairly penalizing an individual who is not aware that his conduct violates the law.

As to background-check violations, by contrast, the statute penalizes violations committed “knowingly.” §§ 922(t), 924(a)(5). The “knowingly” mens rea requires “proof of knowledge of the facts that constitute the offense.” Id., at 193.  Unlike the “willfully” mens rea, it generally does not require knowledge that the conduct was unlawful. See id., at 192–193.  That lesser “knowingly” mens rea requirement could therefore create concerns about fair notice, at least in certain cases. See Wooden v. United States, 595 U.S. 360, 379 (2022) (KAVANAUGH, J., concurring).

That said, at oral argument, the Government represented that it would “likely” decline to “charge someone” for a background-check violation in the “kind of situation” where the individual was not aware that he was violating the law. Tr. of Oral Arg. 46–47.  As the Government seemed to recognize, if the Government were to charge a backgroundcheck violation against an individual who was unaware that he was violating the law, that defendant might have a due process argument based on lack of fair notice. I expect that the Government will seek to avoid that potential fair-notice problem by adhering to its oral-argument representation that it would likely decline to bring charges in those circumstances.

Though I am not an expert on all jurisprudence supporting a "due process [criminal defense] based on lack of fair notice," I read Justice Kavanuagh as pushing existing jurisprudence here.  Notably, he just says a defendant "might" have a "due process argument," and he does not cite any caselaw in which such an argument was developed.  Moreover, I wonder how such a claim would get litigated.  What if an individual said he was unsure if a gun part was subject to the ATF rule because he decided not to research the matter? 

Generally speaking, the Supreme Court and lower courts have tended to treat mens rea issues as matters of statutory interpretation, not as matters of constitutional dispute.  But Justice Kavanaugh, who often raises mens rea issues in a variety of settings, once again highlights his particular concerns with mental states and criminal enforcement.  And it seems, based on the sentence highighted above, that his concerns sometimes are of a constitutional dimension.

Might other federal criminal prosecutions decline significantly with increased focus on immigration enforcement?

The question in the title of this post is prompted by this new Reuters article headlined "Exclusive: Thousands of agents diverted to Trump immigration crackdown." Here are a few excerpts from a lengthy article:

Federal agents who usually hunt down child abusers are now cracking down on immigrants who live in the U.S. illegally.  Homeland Security investigators who specialize in money laundering are raiding restaurants and other small businesses looking for immigrants who aren’t authorized to work.  Agents who pursue drug traffickers and tax fraud are being reassigned to enforce immigration law.

As U.S. President Donald Trump pledges to deport “millions and millions” of “criminal aliens,” thousands of federal law enforcement officials from multiple agencies are being enlisted to take on new work as immigration enforcers, pulling crime-fighting resources away on other areas — from drug trafficking and terrorism to sexual abuse and fraud....

This account of Trump’s push to reorganize federal law enforcement — the most significant since the September 11, 2001, terrorist attacks — is based on interviews with more than 20 current and former federal agents, attorneys and other federal officials.... "I do not recall ever seeing this wide a spectrum of federal government resources all being turned toward immigration enforcement," said Theresa Cardinal Brown, a former Homeland Security official who has served in both Republican and Democratic administrations.  "When you're telling agencies to stop what you've been doing and do this now, whatever else they were doing takes a back seat."...

Before this year, ATF had played almost no role in immigration enforcement.  It typically investigated firearms offenses, bombings, arson and illicit shipments of alcohol and tobacco.  But since Trump’s inauguration, about 80% of its roughly 2,500 agents have been ordered to take on at least some immigration enforcement tasks, two officials familiar with ATF's operations said.  The ATF agents are being used largely as “fugitive hunters” to find migrants living in the U.S. illegally, one of the officials said.

The DEA, whose roughly 10,000 staff have led the nation’s efforts to battle drug cartels, has shifted about a quarter of its work to immigration operations, said a former official briefed by current DEA leaders on the changes.  Two other former officials described the commitment as “substantial” but did not know precisely how much work shifted....

On the second day of Trump’s administration, a top Justice Department official, Emil Bove, told federal prosecutors in a memo that they should “take all steps necessary” to prosecute illegal immigrants for crimes in the U.S. In the memo, Bove called for increasing the number of immigration prosecutions, and said any cases that are declined must be urgently reported to the Justice Department.

As a result, federal prosecutors, who typically handle a variety of crimes, have been inundated with immigration cases, two of the sources said.  In San Diego, the number of people charged in federal court in February with felony immigration crimes more than quadrupled compared to the previous year, a Reuters examination of federal court records found.  The number of people charged with felony drug crimes dropped slightly over the same period.  In Detroit — where immigration prosecutions have been rare — the number of people charged with immigration offenses rose from two in February 2024 to 19 last month, Reuters found.

Just this past week, I posted here the Bureau of Justice Statistics' publication "Federal Justice Statistics, 2023," and the first three figures in that publication provide an interesting and helpful accounting of federal criminal caseloads over the past decade and more.  Figures 2 and 3 especially highlight that there is not an inherent "zero-sum" reality to the number of criminal immigration cases and other criminal cases in the federal system.  So it is certainly possible that immigration enforcement actions can go up significantly without other federal criminal cases going down significantly.

That all said, there is a reasonable basis to predict that at least two major categories of federal criminal case processing, namely firearm and fraud offenses, may be relatively low priorities in the Trump Administration.  (Also, I suspect some of the post-Bruen/Rahimi Second Amendment litigation might have some impact on some federal firearm prohibition enforcement caseloads.)  As for drug cases, I am not quite sure what to expect or predict with caseloads: fentanyl prosecutions seem a likely priority, but meth and cocaine cases have made up the bulk of the federal drug docket for the last decade (though the number of fentanyl cases have increased the most in recent years). 

Long story short, federal criminal justice and sentencing fans have a lot to watch in this space (and in lots of other spaces). 

Supreme Court, by 7-2 vote, rules that an omission can involve the “use of physical force” in Delligatti

This morning the US Supreme Court handed down an opinion in favor of the government on a statutory issue in Delligatti v. US, No. 23–825 (S. Ct. March 21, 2025) (available here).  The opinion for the Court, authored by Justice Thomas, begins and ends this way:

Title 18 U.S.C. § 924(c)(3)(A) defines a “crime of violence” to include a felony that involves the “use of physical force” against another person. In the context of a closely related statute, we have held that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force.” United States v. Castleman, 572 U. S. 157, 169 (2014). This case asks whether that principle extends to § 924(c)(3)(A) and, if so, whether the principle holds in cases where an offender causes bodily injury by omission rather than action. We answer both questions in the affirmative....

The knowing or intentional causation of injury or death, whether by act or omission, necessarily involves the use of physical force against another person. The judgment of the Court of Appeals for the Second Circuit is affirmed.

Justice Gorsuch authored a lengthy dissent, which was joined by Justice Jackson, and which starts this way:

Imagine a lifeguard perched on his chair at the beach who spots a swimmer struggling against the waves. Instead of leaping into action, the lifeguard chooses to settle back in his chair, twirl his whistle, and watch the swimmer slip away. The lifeguard may know that his inaction will cause death. Perhaps the swimmer is the lifeguard’s enemy and the lifeguard even wishes to see him die. Either way, the lifeguard is a bad man. In many States, he may be guilty of a serious crime for failing to fulfill his legal duty to help the swimmer. But does the lifeguard’s offense also qualify under 18 U. S. C. §924(c)(3)(A) as a “crime of violence” involving the “use . . . of physical force against the person . . . of another”? The Court thinks so. I do not. Section 924(c)(3)(A) may reach many crimes, but it does not reach crimes of omission.

Supreme Court unanimously limits reach of federal bank fraud statute to fraud in Thompson

This morning the US Supreme Court handed down a unanimous opinion in favor of a federal criminal defendant on a statutory issue in Thompson v. US, No. 23–1095 (S. Ct. March 21, 2025) (available here).  The opinion for the Court, authored by Chief Justice Roberts, begins and ends this way:

Patrick Thompson took out three loans totaling $219,000 from the same bank. Later, Thompson told the Federal Deposit Insurance Corporation (FDIC) that he had “borrowed . . . $110,000” from the bank. Thompson was indicted under 18 U.S.C. §1014 for making “false statement[s]” to the FDIC. Thompson argued that his statements were not false because he had in fact taken out a loan for $110,000 just as he said. Both the District Court and the Seventh Circuit held that they did not need to consider that argument. In their view, the prohibition in §1014 against “false statement[s]” extends to misleading ones as well, and Thompson’s statements were at least misleading in failing to mention the additional loans. The question presented is whether §1014 criminalizes statements that are misleading but not false....

In casual conversation, people use many overlapping words to describe shady statements: false, misleading, dishonest, deceptive, literally true, and more.  Only one of those words appears in the statute.  Section 1014 does not criminalize statements that are misleading but true. Under the statute, it is not enough that a statement is misleading.  It must be “false.”

The judgment of the Court of Appeals for the Seventh Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. 

Justice Alito authored a four-page concurrence making a number of points, and primarily stressing that "in considering whether a statement is 'false,' judges and juries must view the statement in 'the context in which it is made'.”

Justice Jackson authored a one-page concurrence contending that, in this case, "the jury was properly instructed that it could find Thompson guilty only if the prosecution proved beyond a reasonable doubt that Thompson 'made the charged false statement[s]'.”

Bureau of Justice Statistics releases "Federal Justice Statistics, 2023"

The Bureau of Justice Statistics just released this new report, titled "Federal Justice Statistics, 2023," which is decribed this way in the email sent my way:

The Bureau of Justice Statistics, in the Department of Justice’s Office of Justice Programs, today released Federal Justice Statistics, 2023. This report describes cases processed by the federal criminal justice system, including the U.S. Marshals Service, Drug Enforcement Administration, Administrative Office of the U.S. Courts, Executive Office for U.S. Attorneys, Federal Bureau of Prisons, and U.S. Sentencing Commission.

This is the 37th report in an annual series based on data from BJS’s Federal Justice Statistics Program, which began in 1979. It provides national statistics on the federal response to crime for fiscal year 2023 and some statistics on changes over time. The report describes case processing in the federal criminal justice system, including investigations by U.S. attorneys, prosecutions and declinations, convictions and acquittals, sentencing, probation and supervised release, and imprisonment.

This document has an extraordinary amount of interesting data, and here is a small portion of the case processing and sentencing particulars:

About 91% of the 71,866 defendants adjudicated in FY 2023 were convicted (table 6). Nearly all defendants charged with immigration (98%), weapons (94%), drug or other regulatory offenses (both 92%) offenses were convicted. About 89% of defendants adjudicated pled guilty. Two percent of defendants were convicted through a bench or jury trial. Defendants adjudicated in U.S.Mexico border districts had a higher conviction rate (96%) than defendants in non-border districts (88%).  Among felony offenses, rates of nonconviction ranged from 2% for immigration offenses to 12% for public order regulatory offenses.  The largest percentage of adjudicated cases that were not convicted were dismissed or otherwise concluded by the judge or prosecutor (9%).  Acquittals (median 475 days), dismissals (median 469 days), and guilty pleas (median 302 days) took less time to process from case filing to disposition than trials that ended in convictions (median 797 days)....

Of the 65,482 defendants convicted in U.S. district court in FY 2023, more than three-quarters (76%) were sentenced to prison (table 7).  The remainder received probation only (8%), a fine only (2%), or other sentence (15%), which includes case dismissals, sealed cases, or sentences to time served.  In 2023, about 79% of persons convicted of a felony received a prison sentence.  Persons convicted of violent (93%), drug (90%), or weapons (89%) felonies were most likely to receive prison terms. Twenty-one percent of persons convicted of a misdemeanor received a prison sentence in FY 2023....

Convicted defendants received a median sentence of 108 months in prison for a violent offense, 72 months for a drug offense, and 60 months for a nonregulatory public order offense.  Nonregulatory public order offenses include receipt and distribution of child sexual exploitation materials, or child pornography.  These offenses carry lengthy mandatory minimum penalties, which will increase the overall sentence length of this group of offenses. The median prison term for immigration defendants convicted of a felony was 14 months.

Two more states moving bills forward to make child rape a capital offense

In spring 2023, as detailed in this post, Florida became the first state to authorize the death penalty for the crime of child rape since the Supreme Court's ruling in Kennedy v. Louisiana, 554 U.S. 407 (2008).  (In Kennedy, the Court decided, by a 5-4 vote, that the US Constitution's Eighth Amendment prohibits a state from imposing a death sentence for the crime of child rape.)  In spring 2024, as detailed in this post, Tennessee became the second state to enact legislation allowing the death penalty for certain child rape convictions since Kennedy.

Now, as spring 2025 approaches, local press stories detail that two more states seem to be on track to put similar new capital punishment laws on their books:

From Alabama, "Committee approves bill expanding death penalty for child sexual assault"

From Idaho, "Idaho House unanimously passes child sex abuse death penalty bill"

Especially because Idaho barely ever uses its existing death penalty laws even against murderers (basics here from DPIC), the state's possible expansion of the death penalty to child rape seems unlikley to produce a lot more death sentences.  And yet, as one legislator in Idaho noted, legislative enactments matters in modern Eighth Amendment analysis:    

Rep. John Shirts, R-Weiser, a prosecutor in the Air Force Reserve, said “there are things that are so horrific that people do to children there’s nothing more than ultimate punishment that is just.”  And he suggested Idaho’s bill would help the court re-evaluate the issue. “Some people might argue that this doesn’t have any binding on the court. It really does,” Shirt said.  “It shows what our will, what the state’s will, in these types of cases, are. It goes to that national consensus analysis under the Eight Amendment.”

There were six states with capital child rape statutes on the books when Kennedy was handed down, so it seems unlikley that even four states with new capital child rape statutes woud alter the "national consensus analysis under the Eight Amendment." But it is unclear whether the current Supreme Court would continue to embrace and apply this jurisprudential approach to the Eighth Amendment. And, notably, the only three Justices still on the Court since the 2008 Kennedy decision, namely the Chief Justice and Justices Thomas and Alito, were all part of the dissent in that case.

That all said, I am unaware of any a capital child rape case going to trial in Florida's since its capital child rape statute was enacted in 2023.  So, it likely will take (many more?) years before a child rape death sentence is actually imposed and appealed in any jurisdiction to provide the Supreme Court an opportunity to reconsider its Kennedy ruling.

"Killing Through Their Kids"

The title of this post is the title of this new piece authored by Dyllan Taxman now available via SSRN. Here is its abstract:

In early 2024, James and Jennifer Crumbley were sentenced to over a decade in prison after their son, Ethan, shot and killed four classmates at Oxford High School in Michigan.  The Crumbley parents incurred manslaughter liability by ignoring Ethan’s deteriorating mental state, gifting him the murder weapon, and failing to act on concerns about Ethan’s behavior on the day of the shooting.  In this Article, I suggest they will be far from the last. Indeed, less than one year after the Crumbley convictions, Colin Gray — whose son committed the shooting at Apalachee High School — was charged with manslaughter and second-degree murder.

Current coverage of the Crumbley parents’ conviction has cabined their case as an outlier, unlikely to repeat due to uniquely egregious facts.  I argue that charging and convicting the parents of a school shooter will recur because similar conduct has produced parental homicide liability for over a century of widespread American jurisprudence via homicide by medical neglect and passive abuse.  By analyzing the Crumbley parents’ conviction in this context, I draw out a test to determine when parental homicide liability might attach following a school shooting.  This duty to prevent test asks if parents: (1) ignored clear warning signs about the child’s deteriorating mental health; (2) facilitated the child’s access to a weapon; and finally (3) ignored additional warnings about the child’s violent ideations.  Where each prong is met, parental homicide liability following a school shooting tracks not only the theory of liability upon which the Crumbleys were convicted, but also the traditional and well-established components of homicide liability for medical neglect and passive abuse.  Finally, I suggest that school officials who meet each prong of the test may incur similar liability under certain circumstances.

Federal judges rejecting defendants' and DOJ's efforts to expand reach of Prez Trump's Jan 6 pardons

As highlighted in a number of prior posts (see lonks below), in recent weeks federal criminal defendants and sometimes even the US Justice Department has been asserting that Prez Trump's Jan 6 pardons cover seemingly unrelated crimes.  This week, as detailed in press reports, judges in a few cases have been ruling and rejecting these claims:

From NBC News, "No, Trump’s blanket Jan. 6 pardon doesn’t cover a 2022 plot to kill FBI agents."  From the piece with links from the original:

Ever since Donald Trump granted blanket clemency to more than a thousand Jan. 6 defendants, an open legal question has been how far that executive grace extends beyond offenses committed that day in 2021.  For example, does it cover a defendant’s conviction for subsequently plotting to kill law enforcement who investigated him?  No, a federal judge in Tennessee ruled Monday.

It might seem like an obvious answer, but U.S. District Judge Thomas Varlan had to formally reach it nonetheless. In doing so, the George W. Bush appointee laid down a judicial marker in the litigation fallout from Trump’s blanket pardon, as defendants argue that the clemency reaches beyond the day of Jan. 6 — even as the Trump Justice Department sides with some defendants, opposes others and sometimes changes its mind about how far it goes.

From Politico, "Judge rejects DOJ’s effort to expand reach of Trump’s Jan. 6 pardon."  From the piece, with links from the original:

A federal judge has denied the Justice Department’s attempt to apply President Donald Trump’s blanket pardon for members of the Jan. 6 mob at the Capitol to one defendant’s conviction for possessing illegal guns hundreds of miles away, at his Kentucky home. In a ruling Thursday night, U.S. District Judge Dabney Friedrich, a Trump appointee, became the first judge to reject outright the Justice Department’s recently adopted position about the scope of Trump’s clemency.

Reversing its initial stance in the weeks after Trump’s inauguration, the department is now arguing that Trump’s pardon extends to crimes with no connection to the attack on the Capitol other than the fact that law enforcement agents uncovered evidence of them during the Jan. 6 investigation.  Friedrich said DOJ’s position “contradicts” the “clear and unambiguous” language of Trump’s Day 1 executive order granting pardons to about 1,500 people convicted of participating in the riot.

Prior related posts:

• Justice Department now asserting in some cases that Prez Trump's Jan 6 pardons covers gun and drug crimes 
• More press coverage of more Justice Department filings arguing Jan 6 pardons cover other crimes 
• Interesting report on interesting hearing over scope of Jan 6 pardons

US Sentencing Commission releases new report on "Overdoses in Federal Drug Trafficking Crimes"

As detailed on this webpage, the US Sentencing Commission has today released a notable new study analyzing federal drug trafficking offenses that involved an overdose.  Here is how the report is summarized on that page: "The Commission’s research report Overdoses in Federal Drug Trafficking Crimes covers the prevalence of these offenses, the drug types involved, the outcomes of each overdose, the victims’ awareness of the drugs they were taking, the conduct of the individuals who were sentenced, and the sentences imposed by the courts in these cases over the five-year study period."

The full 52-page report is available at this link, and the USSC has also produced this helpful "report at a glance" page with highlights.  The full run of data is fascinating and not readily summarized, but here are some of data points on the "at a glance" page:

Overdoses accounted for under 2% of the federal drug trafficking cases studied but their prevalence increased by 44% from fiscal years 2019 to 2023. 

Nearly two-thirds (65%) of the victims in this study suffered a fatal overdose. Fentanyl and its analogues were involved in 80% of the overdose cases studied.

Information available to the Commission in presentence investigation reports demonstrated that most of the individuals in the study who sold the drugs and most who overdosed on those drugs did not know the exact drugs involved.

• 79% of victims who overdosed on fentanyl did not realize they were taking it;
• 92% of victims who overdosed on a fentanyl analogue were similarly unaware;
• 5% of sentenced individuals in the study knowingly misrepresented drugs they sold.

Over half (55%) of the sentenced individuals in this study functioned as street-level dealers and nearly one-quarter (24%) functioned as wholesalers.

Federal courts imposed an average sentence of 149 months in drug trafficking cases that involved an overdose—approximately double the average sentence when no overdose was reported (76 months) but sentences imposed in cases with an overdose varied by offense conduct.

Citing state guidelines and proportionality, Virginia Gov communtes prison term offficer involved in fatal shooting

As reported in this Washington Post piece, "Virginia Gov. Glenn Youngkin (R) has granted clemency to a former Fairfax County police sergeant who fatally shot an unarmed man thought to have stolen sunglasses. Wesley Shifflett was sentenced to three years in prison on Friday, but spent just two nights in jail before walking free just before 8 p.m. Sunday."  Here is more:

A jury convicted Shifflett in October of reckless handling of a firearm, but acquitted him of a more serious involuntary manslaughter charge in the 2023 encounter in which he chased and shot Timothy McCree Johnson, 37, outside Tysons Corner Center mall. Youngkin’s announcement means Shifflett will serve no further jail time, but his felony conviction stands — although [his lawyer[ said he plans to appeal....

During the trial, jurors repeatedly watched body camera footage showing the night Shifflett pursued Johnson, who was accused of stealing sunglasses, into a dark wooded area near the mall before shooting at him twice. Shifflett testified he saw Johnson reaching into his waistband. Lawyers for Shifflett argued he followed his training, while prosecutors painted Shifflett as a man who — in a moment of unreasonable panic — made a reckless decision with lethal consequences.

Gov Youngkin's statement on "Commutation of Sentence for Sergeant Wesley Shifflett" is available at this link, and here are excerpts:

I am convinced that the court's sentence of incarceration is unjust and violates the cornerstone of our justice system—that similarly situated individuals receive proportionate sentences. I want to emphasize that a jury acquitted Sgt. Shifflett of the more serious charge of involuntary manslaughter, a conviction for which the sentencing guidelines recommend no jail time or up to six months’ incarceration.

In this case, the court rejected the Senior Probation and Parole Officer’s recommendation of no incarceration nor supervised probation and instead imposed a sentence of five years’ incarceration with two suspended and an additional five years of probation. Sgt. Shifflett has no prior criminal record, and was, by all accounts, an exemplary police officer. It is in the interest of justice that he be released immediately.

You be the judge: what federal sentence for prominent elderly state legislator convicted on 10 of 23 corruption counts?

The question in the title of this post is prompted by this lengthy Chicago Tribune article reporting on the results of a lengthy trial and jury deliberation under the headline "No sweep for either side, but Madigan jury’s split verdict still offers ‘historic’ corruption conviction." Here are a few details with a focus on a few legal particulars:

Illinois House Speaker Michael Madigan minced no words on the day Democratic Gov. Rod Blagojevich, his longtime political nemesis, was arrested on federal corruption charges in December 2008. “Today’s events are shocking and disappointing,” Madigan, the then-leader of the state Democratic Party, said on that infamous day 16 years ago. “It represents a new low for conduct by public officials.”

At the time, Blagojevich was the latest in a depressing array of governors, state legislators, county commissioners and aldermen accused of selling out the public’s trust for personal gain. On Wednesday, a federal jury added Madigan to that same, sad parade.

In a verdict sure to reverberate across the political landscape, the jury found Madigan, once the most powerful politician in the state, guilty of bribery conspiracy and other corruption charges alleging he used his public office to increase his power, line his own pockets and enrich a small circle of his most loyal associates.

But neither prosecutors nor Madigan could declare total victory. Jurors’ final verdict was overall mixed, deadlocking on several counts — including the marquee racketeering conspiracy charge — and acquitting Madigan on numerous others. Jurors also deadlocked on all six counts related to Madigan’s co-defendant, Michael McClain.

Jury foreman Tim Nessner told the Tribune late Wednesday that the panel was deadlocked 11-1 in favor of acquittal on the main racketeering charge as well as several other counts. He also said he felt much of the prosecution was “government overreach.”...

The split verdict does not avert the possibility of a significant sentence for Madigan, who turns 83 in April.  Several of the guilty counts carry a maximum of 20 years in prison, according to the U.S. attorney’s office.  No date has been set for Madigan’s sentencing.

It was a complicated conclusion to a complicated case, and leaves prosecutors to decide whether to go for a retrial. Speaking to reporters after the verdict, acting U.S. Attorney Morris Pasqual said it was too soon to make a decision on how to proceed. “We will obviously closely discuss the developments … and at the appropriate time we’ll make a decision about whether to seek a retrial,” Pasqual said....

Madigan was convicted on 10 of 23 counts, including one count of conspiracy related to a multipronged scheme to accept and solicit bribes from ComEd. Jurors also convicted him on two counts of bribery and one Travel Act violation related to payments funneled to Madigan associates for do-nothing ComEd subcontracts.

Madigan was also convicted on six out of seven counts — including wire fraud and Travel Act violations — regarding a plan to get ex-Ald. Daniel Solis, a key FBI mole who testified at length in the trial, appointed to a state board.

Jurors acquitted Madigan of one bribery count related to that plan. That charge specifically alleged Madigan took steps to find a board seat for Solis through the administration of incoming Democratic Gov. JB Pritzker.  One of the last pieces of evidence jurors heard before closing arguments was a stipulation that, if called to testify, Pritzker would say he has no recollection of discussing a Solis appointment with Madigan.

Jurors also acquitted Madigan of a bribery charge alleging he tried to have Juan Ochoa, a onetime political nemesis, put on the ComEd board. In addition, he was found not guilty of one Travel Act violation related to the ComEd scheme. And Madigan was acquitted of all four counts related to an alleged scheme to pressure developers of a West Loop high-rise into giving business to his law firm....

The verdict caps one of the most significant political corruption investigations in Chicago’s sordid history and cements an extraordinary personal fall for Madigan, the longest-serving state legislative leader in the nation’s history who for decades held an iron-tight grip on the House as well as the state Democratic Party.

There are a lot more details about Madigan and this trial in the full Tribune article, and many more details will surely be relevant to the determination of Madigan's advisory sentencing guideline range and at his eventual sentencing.  But, particulars aside, the foundational question at a forthcoming sentencing would seem to be whether and how much prison time would be fitting for a 83-year-old prominent career politicial convicted of some (but not a majority) of corruption charges.

"Of Two Minds: the Supreme Court's Divergent Approach to Constitutional Mens Rea"

The title of this post is the title of this new article authored by Rachel Barkow just posted to SSRN. Here is its abstract:

Constitutional law is typically conceived as a set of individual rights and a list of powers given to and restrictions on the government.  What typically goes unnoticed is that the Supreme Court often limits rights and narrows restrictions on the government by insisting that someone bringing a constitutional challenge demonstrate not only that they were harmed or that the government overstepped its bounds, but also that the governmental actor behaved with an improper mental state, or what criminal law refers to as mens rea.  These mens rea requirements are Court creations. On closer inspection, the Court’s rationales for insisting on mens rea requirements often fall short of justifying them and amount to little more than a backdoor way to undercut a constitutional right or avoid a constitutional remedy. This should be disconcerting to anyone who cares about the robust protection of the constitutional right at issue.

The Court’s eagerness to impose mens rea requirements on constitutional claims is troubling for another reason: it stands in sharp contrast to its unwillingness to establish constitutionally required mens rea requirements for substantive criminal law either as a matter of due process or pursuant to the Eighth Amendment when an individual faces incarceration.  The Court has instead allowed legislatures to set mens rea requirements or dispose of them to further public policy as they see fit.  For example, the Court has accepted strict liability offenses that impose terms of incarceration without a mens rea requirement and has dismissed the notion that the insanity defense is constitutionally required when criminal punishment is at stake.  If the Court truly cared about the history and tradition of fault and blame, it would be just as vigilant in policing legislative definitions of crime as it has been in imposing its own mens rea thresholds for constitutional claims.

This article will argue that, if anything, the Court has mens rea backward. It should be insisting on mens rea before individuals are punished with incarceration, and it should refrain from imposing judge-made mens rea requirements that undercut constitutional rights.

Eighth Circuit indicates Second Amendment limits federal gun possession crimes for drug users under § 922(g)(3)

A helpful comment made sure I saw that the Eighth Circuit today handed down a few notable Second Amendment rulings and limits on a federal gun possession prohibition.  The main substantive case, US v. Cooper, No. 24-1998 (8th Cir. Feb 5, 2025) (available here), is worth reading in full and here are excerpts from the start and heart of the decision:

In United States v. Veasley, we concluded that keeping firearms out of the hands of drug users does not “always violate[] the Second Amendment.” 98 F.4th 906, 908 (8th Cir. 2024). Now the question is whether it sometimes can. The answer is yes, so we remand for the district court to determine whether it does for LaVance Cooper....

Nothing in our tradition allows disarmament simply because Cooper belongs to a category of people, drug users, that Congress has categorically deemed dangerous.... Only later, in the mid-20th century, did legislative attention turn to the potential danger posed by mixing guns and drugs. These analogues make clear that “disarming all drug users,” regardless of the individual danger they pose, is not comparable to anything from around the time of the Founding.

US v. Baxter, No. 24- 1164 (8th Cir. Feb 5, 2025) (available here), also is in the same vein, though more procedural.  Baxter also rejects a claim that § 922(g)(3) is unconstitutionally vague in its prohibition of firearm possession by any "unlawful user of or addicted to any controlled substance." 

Extreme prison sentence for (extreme?) case of dog-fighting animal cruelty

As detailed in links below, this past Fall I noticed and blogged about a numbers of notable federal and state sentencings for various defendants convicted of various crimes involving animals.  I was reminded of this series after seeing this local article from Georgia headlined "Dog taken to court to hear Georgia man sentenced to 475 years in prison for abuse."  Here are some of the details:

A Paulding County courtroom was filled with emotion as a judge sentenced a man to 475 years in prison for dog fighting and animal cruelty, marking the maximum penalty possible under the law.

Vincent Lemark Burrell, 57, was found guilty of 103 charges, including 93 counts of dog fighting and 10 counts of cruelty to animals, following a four-day jury trial that concluded on Jan. 30, 2025. Animal advocates celebrated the sentencing alongside one of the rescued dogs, Baby Shark, who was just eight weeks old when she was saved from abuse. Prosecutors ensured her presence at the hearing, emphasizing the significance of the case.

The case began when an Amazon driver reported concerns after noticing numerous dogs chained to fence posts on Burrell's property. The dogs were secured with heavy chains just out of each other’s reach, a known tactic used to increase aggression for dog fighting, according to the Paulding County District Attorney’s Office.

Police discovered 107 dogs in Burrell's yard, all with heavy chains around their necks. The animals were rescued and taken to Friends of the Forlorn Animal Rescue, while Burrell was arrested on Nov. 8, 2022....

Sheriff Ashley Henson encouraged the public to report any suspected dog fighting by calling 911 or submitting anonymous tips to the Paulding Sheriff’s Office. “Justice was served today for the voiceless. This type of activity will not be tolerated in Paulding County,” Henson said.

As an animal lover, I am generally supportive of efforts to sanction animal cruely.  But is a maximum sentence of 475 years(!) in prison fairly described as "justice"?  For an offender in his late 50s, I suppose even a sentence of 47 years would be a de fact life sentence, so a prison sentence lasting until the year 2500 is just symbolism here.  But I wonder what Michael Vick might say.  As folks might recall, Vick got a federal sentence of less than two years for his role in a dog-fighting ring that included hanging dogs and animal cruelty arguably as or more extreme than this Georgia case.  

Prior recent related posts:

• A reminder that kicking a cat down the road can get you sentenced to years in a federal prison 
• Negligent owners get decades in prison for deadly failings to control dogs
• Another notable long sentence for cruel animal mistreatment 
• Yet another wild (and wildlife) animal crime leads to notable federal sentencing
• Still another variation on animal abuse produces another notable federal sentencing

You be the umpire: what sentence for Shohei Ohtani’s ex-interpreter?

January is always an exciting sports month, especially for football fans.  After a wonderful college football playoff can to a terrific end earlier this week, I am now especially looking forward to the NFL games this weekend that will deterine who goes to the SuperBowl in February.  And February is also a great sports month especially for baseball fans like me looking forward to spring and spring training.  And baseball is on my sentencing mind this morning because of reports on the memos filed before the upcoming sentencing of Shohei Ohtani’s ex-interpreter.  This detailed Heavy piece has the basics and links to the filings:

[A]n attorney for Ippei Mizuhara are asking a federal judge to sentence him to 18 months in prison in his fraud case, a sentencing memorandum filed on January 23, 2025, reveals.

Federal prosecutors are seeking just under five years (57 months) in federal prison, according to a document filed by the U.S. Attorney’s office on January 23.

The former interpreter for Los Angeles Dodgers star Shohei Ohtani admitted to stealing $17 million from Ohtani’s bank account to help pay off a sizable illegal gambling debt, according to prosecutors.

“Ippei Mizuhara faces sentencing for stealing from his boss, baseball star Shohei Ohtani, to fund his gambling addiction, which was exacerbated by the unique facts of this case,” his attorney, Michael Freedman wrote in the court filing. “As will be demonstrated in this sentencing memorandum and the accompanying letters and forensic psychologist’s report, Mr. Mizuhara made a terrible mistake as a result of his serious gambling addiction, an anomaly in an otherwise law-abiding life in which he was dedicated to his career as an interpreter for Mr. Ohtani and other baseball players.”

Freedman argued for a below guidelines sentence for Mizuhara. The guidelines call for a sentence of 57 to 71 months in prison. He argued that Mizuhara’s reputation was destroyed, he will face deportation after time in his time in prison and his family will suffer as well as him as a result of his crimes.

Mizuhara pleaded guilty to one count of bank fraud in May 2024 and faces up to 30 years in prison, though it is unlikely he would be sentenced to anywhere near that amount of time behind bars. He will be sentenced on February 6, 2025, in federal court in Santa Ana, California. U.S. District Judge John W. Holcomb will determine his sentence.

Prosecutors filed an audio recording of Mizuhara impersonating Ohtani while on a call with his bank on January 23, which has been obtained and posted online by The Athletic.  Mizuhara admitted that he began gambling in September 2021 using an illegal bookmaker and quickly racked up millions of dollars in debt.

“Unable to pay his gambling debts, Mizuhara orchestrated a scheme to deceive and cheat the bank to fraudulently obtain money from the account,” the U.S. Attorney’s Office for the Central District of California said in a press release. “From no later than November 2021 to March 2024, Mizuhara used Ohtani’s password to successfully sign into the bank account and then changed the account’s security protocols without Ohtani’s knowledge or permission. Specifically, Mizuhara changed the registered email address and telephone number on the account so bank employees would call him – not Ohtani – when attempting to verify wire transfers from the account.”

So, dear readers, if you were the umpire tasked with judging the fate of Mizuhara, what sentence would you impose?

Sleeper or dud? False or misleading? More questions than answers in SCOTUS argument over federal false statement law

The Supreme Court heard oral argument today in Thompson v. US, which has the potential to be a major white-collar criminal case because it could narow (or expand) how federal criminal law defines a "false statement."  But this review of this oral argument at SCOTUSblog by Amy Howe suggest what and how the Court might rule is quite uncertain.  I recommend the full review, and here is how it starts:

The Supreme Court on Tuesday grappled with the case of Patrick Daley Thompson, a former Chicago alderman and member of Chicago’s most storied political dynasty. Thompson served four months in a federal prison for making false statements to bank regulators about loans he took out and did not repay. He contends that the federal law under which he was convicted does not apply to statements -- like his -- that are misleading but not false. But after just over 75 minutes of oral arguments, it wasn’t clear whether the justices would actually decide that legal question, or whether a majority of the justices believed that a ruling on that question would even help Thompson.

"Does the United States Have High Recidivism Rates? New Data Raise Questions About Prevailing Beliefs"

The title of this post is the title of this essay authored by Barry Latzer available via SSRN. Here is its abstract:

A recent report on reincarceration by the Council of State Governments Justice Center (CSG) seems to challenge prevailing assumptions about recidivism by serious offenders. The study finds that discharged prisoners in the United States are returned to prison within three years of release at rates comparable to those of other nations.  This suggests, contrary to common assumptions, that recidivism rates in the United States are not especially high.  However, data from the federal Bureau of Justice Statistics (BJS), familiar to criminologists, paint a very different picture.  The BJS found that 66% of released state prisoners were rearrested within three years and 82% were arrested at least once during a ten year follow-up.  These data point to exceptionally high recidivism rates.  These analyses can be reconciled by examining prison-admissions-to-arrest ratios.  From 1995 to 2019 the ratio declined by 28%.  The decline in imprisonments explains the apparently modest return-to-prison rates found by the Council of State Governments.  Therefore it cannot be concluded that the United States is successfully rehabilitating prisoners.

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

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

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

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

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

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

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

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

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

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

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

Interesting times.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"The Rule of Lenity and Affirmative Defenses"

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

The rule of lenity is undergoing a renaissance.  Lenity requires courts to construct ambiguous penal statutes narrowly. In recent years, scholars have sought to reinvigorate lenity as an important tool for combatting the American crisis in overcriminalization.  At the same time, the Supreme Court has issued a series of decisions debating the breadth and importance of lenity.  This Article contributes a new and unexplored dimension to the growing scholarship on lenity by considering lenity’s implications for affirmative defenses.

Affirmative defenses negate criminal liability, and they fall into three categories: justifications, excuses, and public policy defenses.  Justifications, like self-defense, render conduct non-criminal; justified conduct is permissible conduct.  Excuses, like insanity, render an actor non-punishable, despite their criminal conduct, because the actor is not an appropriate subject for blame.  Excused conduct is thus impermissible yet also unpunishable.  Finally, public policy defenses preclude punishment for justification-like or excuse-like reasons; they either vitiate an act’s wrongfulness (justification-like) or prevent punishment even though the act was wrongful (excuse-like).  Along with criminal statutes, affirmative defenses define the boundaries of what the state can punish.

This Article advances a novel claim: lenity applies to justifications and justification-like public policy defenses but not excuses or excuse-like public policy defenses.  Because justificatory defenses render conduct non-criminal, they effectively narrow the scope of a penal statute — the broader the justification, the narrower the penal statute.  Excusatory defenses, however, do not alter the scope of the criminal law.  They preclude punishment despite an act’s criminal character, so they do not affect the breadth or narrowness of penal statutes and do not implicate lenity. Lenity thus applies to justificatory defenses but not excusatory ones.

The consequences of applying lenity to justificatory defenses are profound. As a practical matter, it helps ordinary criminal defendants raise uncertain defenses and provides courts with an interpretative guide for recently enacted justifications like stand-your-ground laws and affirmative defenses to anti-abortion laws.  This expanded role for lenity also creates new possibilities for environmental and animal activists aiming to exploit ambiguous justifications to advance their causes, thus laying the groundwork for potentially transformative legal change.  Further, the Article’s claims about the ambit of lenity have important implications for related scholarly debates.  For example, the Article argues for the first time that some public policy defenses may be justification-like in their function, and it proposes a staunchly textualist — or “empirical” — approach to drawing the distinction between justifications and excuses.  These novel arguments have implications for foundational questions regarding culpability and interpretative methodology in criminal cases.

Reduction granted on two bases to remedy extreme stash-house sting sentence

A helpful colleague alerted me to a notable recent sentence reduction ruling/opinion handed down last week in US v. Evans, No. 93-00123-CR (SD Fla. Dec. 10, 2024) (available download below). The case inolves a defendant who was initially sentenced three decades ago to 57 years in federal prison in a so-called "stash house sting" case. (I have posted on the ugly dynamics of stash-house stings in any number of prior posts, and I recommend two episodes of the Drugs on the Docket podcast (here and here).)  

The 33-page ruling in the Evans case should be read in full, as it covers lots of notable factual and legal ground.  The ruling defies easy summarization, and I will here just reprint the start of the opinion and some later notable passages:

Sherlon Evans has served over thirty-one years of a nearly fifty-year sentence, totaling 595 months.  Mr. Evans has now moved for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A), claiming that “extraordinary and compelling” reasons warrant review....   

Mr. Evans cites two “extraordinary and compelling” bases recognized by the recent policy statement issued by the U.S. Sentencing Commission (the “Commission”) as potentially justifying a reduction in sentence.  First, Mr. Evans contends that he is serving an “unusually long sentence” that is subject to a substantive change in law, which would produce a “gross disparity” between the sentence he is currently serving and the sentence that would likely be imposed today. USSG § 1B1.13(b)(6).  Second, Mr. Evans points to the “unique aspects of [his] case” under the “catch-all” provision of § 1B1.13(b)(5), which permits a reviewing court to consider “any other circumstance[s]” that are “similar in gravity” to the other extraordinary and compelling reasons recognized by the Commission.

The Government opposes Mr. Evans’s Motion in its entirety.  It first challenges the validity of the Commission’s new policy, claiming the Commission had no authority to issue it, that the policy conflicts with § 3582(c)(1)(A), and that the policy raises separation of powers concerns.  The Government also argues that even if the new policy is binding, Mr. Evans is not entitled to a reduction under the supposedly compelling reasons he cites.  I reject the Government’s position on both fronts ... and reduce his sentence to time served....

[A]t least forty-three defendants who were convicted through reverse stash house stings have since had their sentences reduced to an average of just three years following protracted litigation against the ATF for alleged racial discrimination in its implementation of reverse stings.  [And] the circumstances of Mr. Evans’s sentence are even more striking in light of the fact that he played a relatively minor role in the conspiracy orchestrated by the ATF and Henry. That is, Mr. Evans was arrested because he was present when Henry planned and executed the “robbery.” I use the term “present,” as “the case against Mr. Evans was one that rose and fell on presence, and nothing more than presence. Presence [at] one meeting in which he may or may not have had very little to say, and presence along with everybody else at the scene of the offense at the time the arrests were made.”  Mr. Evans was not the ringleader or mastermind, did not supply weapons or recruit the other co-defendants into the scheme.  He was not even present when the conspiracy was hatched.  He was a tagalong, a hired hand to assist in the criminal deeds of others. Yet, Mr. Evans was sentenced with nearly the same degree of severity as those who were arguably more culpable in the commission of the crime....

[Other cases in which sentences were reduced] echo my own dismay and discomfort with the concept of a reverse stash house sting.  And when such a process results in a sentence of nearly half a century, that is an intolerable outcome.  To be sure, § 1B1.13(b)(5) may not be a vehicle to question the wisdom of the Government’s policing and prosecutorial practices.  It is a vehicle, however, to question the wisdom of continuing to incarcerate this particular man for another decade or more.  Sherlon Evans has served thirty-one years in federal prison for his presence in a conspiracy that he did not plan or lead, attempting to rob drugs that never existed, and carrying a “machine gun” that wasn’t a machine gun, which he never bought, held, brandished, or used. If his original sentence is left unaltered, Mr. Evans will be well into his seventies when he leaves prison — without having been convicted of actually selling one gram of cocaine or hurting any other person.

Download US v. Evans sentence reduction opinion

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

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

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

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

Supreme Court perhaps poised to curtail reach of federal fraud statutes yet again

The Supreme Court heard oral argument yesterday in Kousisis v. US, which presented this question to the Justices as articulated in the petitioner's brief: "Whether a scheme to induce a transaction in property through deception, but which contemplates no harm to any property interest, constitutes a scheme to defraud under the federal wire fraud statute, 18 U.S.C. § 1343."  Though I have not listened to the full oral argument yet, this Washington Post account suggests Kousisis could become another case in which SCOTUS reigns in federal fraud prosecutions:

The Supreme Court on Monday appeared divided over whether to uphold the conviction of a government contractor found guilty of defrauding a state transportation program intended to promote diversity, with several conservative justices again expressing concern over how federal prosecutors combat white-collar fraud.

Chief Justice John G. Roberts Jr. suggested that such crimes were better handled by state prosecutors. Justice Neil M. Gorsuch worried that the federal government’s approach was so broad it could allow, hypothetically, for the prosecution of a babysitter for misleading an employer about how she planned to spend her wages. The court’s eventual ruling in the contracting case could affect how federal prosecutors pursue other fraud cases.

The justices were reviewing the case of Alpha Painting & Construction and a project manager, Stamatios Kousisis, who was convicted of fraud in 2018 and sentenced to 70 months in prison for obtaining a multimillion-dollar contract under false pretenses.  The company won a contract with the Pennsylvania Department of Transportation to make repairs in Philadelphia to a Schuylkill River bridge and to the 30th Street Train Station that was contingent on the company teaming up with a disadvantaged business for a small percentage of the work to increase diversity in contracting. But according to court filings and the defendant’s admissions, the minority contractor did not do any work on the projects or supply materials. Instead, the minority firm acted as a pass-through.  The company submitted fake documentation to the government as part of the scheme, the filings state.

Among the questions for the justices in the case known as Kousisis v. U.S. is whether the company’s deceit rises to the level of wire fraud and just how broadly prosecutors can use that criminal statute to obtain a fraud conviction....

The Supreme Court has repeatedly expressed skepticism of federal prosecutions for too broadly applying criminal statutes to combat public corruption and other white-collar crimes. Last year, the court unanimously overturned the fraud conviction of business executive Louis Ciminelli and others who relied on inside information to win a $750 million development contract as part of former New York governor Andrew M. Cuomo (D)’s Buffalo Billion revitalization project. In 2020, a unanimous court overturned the convictions of two allies of former New Jersey governor Chris Christie (R) who plotted to cause traffic snarls in a town leading to the George Washington Bridge to punish one of the governor’s rivals.

Justice Samuel A. Alito Jr. suggested Monday that those rulings had sent a signal that “the court really doesn’t like the federalization of white-collar prosecutions and wants that to be done in state court and is really hostile to this whole enterprise.” Roberts echoed those concerns when he said “a lot of these things could be dealt with under state law, and you don’t have to federalize every jot and tittle in a large contract? And that it’s a matter of concern that we’ve expressed in many precedents.”

Deputy solicitor general Eric J. Feigin said Congress intentionally crafted the statute to give prosecutors latitude to pursue fraud cases. “It wrote them broadly because frauds are very inventive. There are any number of ways you can defraud people,” Feigin said. He warned that reversing the conviction in this case would make it harder for the government to go after those who defraud programs aimed at helping veterans or charity groups.

During the discussion of the babysitter hypothetical on Monday, Gorsuch and Justice Brett M. Kavanaugh got the government’s lawyer to concede that under its theory, a babysitter could be prosecuted for fraud if she knew she got the job after telling the family she would use the money for college tuition, but instead blew it all on a trip to Cancún.

While Feigin acknowledged the hypothetical babysitter could be charged, he added, “I think the sentencing guidelines would be pretty low.”

“That’s comforting,” Gorsuch quipped.

Another report on how pardon possibilities are impacting Jan 6 prosecutions

Politico has this new article providing another account of how Prez-Elect Donald Trump's Jan 6 pardon pledges are echoing through Jan 6 criminal cases. The full title of the piece captures its themes: "Judges push back as Trump’s return sparks defiance from Jan. 6 defendants: In multiple sentencings Friday, judges saw firsthand how attentively some Jan. 6 perpetrators heed their reprimands. (Which is to say, not at all.)" Here are some excerpts:

A vibe shift sparked by Trump’s imminent takeover of Washington has begun seeping into the marble halls of the federal courthouse, where nearly 1,600 members of the Jan. 6 mob have faced charges. On Friday, at four sentencing hearings, judges appointed by presidents of both parties wrestled with their warnings about the fragility of democracy while bracing for Trump to make good on his promise to pardon many of those they say perpetrated one of the greatest domestic threats in American history.

“The lie that the [2020] election was stolen is still being disseminated,” said U.S. District Judge Amy Berman Jackson, who also excoriated efforts by some Jan. 6 defenders to label the perpetrators “hostages” or “victims” of an abusive government. Jackson didn’t mention Trump by name but said storming the Capitol “at the direction of a disappointed candidate” was “the definition of tyranny and authoritarianism.” Far from dying down over the past four years, the Barack Obama-appointed jurist said at a sentencing hearing Friday for a member of the Proud Boys: “The volume’s getting turned up.”

Down the hall, one of the most prominent members of the Jan. 6 mob — Texas’ Guy Reffitt — was doing just that, lambasting the “bullshit” he said was coming from the judge in his own case, Trump-appointed U.S. District Judge Dabney Friedrich.

Reffitt, who has been in prison since early 2021, said he had been “in my feelings” for the last four years as a result of Biden’s victory. “Trump is now going to be the president of the United States,” Reffitt said as he attacked the case against him in an expletive-laden tirade. “I’m out of my feelings.”

Friedrich, who re-sentenced Reffitt to nearly seven years in prison, worried that he had become increasingly entrenched in his lack of remorse for his role at the vanguard of the riot. Reffitt, she said, “does seem to revel in his status” as a hero to the small but vocal group of Jan. 6 defenders and “loves the J6 family dynamics.”...

For many Jan. 6 defendants and their allies, the judges’ admonitions are increasingly falling flat. Many of them, emboldened by Trump’s rise, openly shrug the warnings off. As Reffitt walked out of the courtroom to be returned to prison, Brandon Fellows — who served most of a 3.5-year sentence for surging into the Capitol and putting his HTML feet on a senator’s private desk — called to him: “Guy, you’ll be out soon.”

Other defendants, too, have begun to feel the momentum swing in their favor, often trading sentiments of remorse in favor of defiance and confidence that Trump will soon swoop in to spare them any prison time.

A few recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants 
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations 
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

"Major-Questions Lenity"

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

There is a fundamental connection between the historic rule of lenity and the new major questions doctrine.  At their core, both doctrines reflect a commitment to the separation of powers on important questions of policy.  In light of that shared justification, the logic of the newly articulated major questions doctrine in the administrative-law context has much to offer lenity in the criminal-law context, and the major-questions framework is strikingly similar to a rationale that has begun to emerge in some of the Supreme Court’s recent decisions adopting narrow constructions of federal penal statutes.  That emerging rationale can be understood as a modest form of major-questions lenity that may lead to a more robust version of the doctrine.

The Court significantly weakened lenity in the mid-twentieth century, and it now plays virtually no role in the construction of federal penal statutes.  Instead, the Court relies on a set of more targeted interpretive tools for narrowly construing certain penal statutes.  The practical effect is a regime of partial leniency that deprioritizes the generic separation-of-powers value on which historic lenity was based while elevating more targeted concerns.  As a result, for most penal statutes, the principle that clear crime definition is the legislature’s obligation has been lost, and outcomes often turn on whether courts will exercise implicitly delegated lawmaking authority to adopt narrow constructions on a largely discretionary and ad hoc basis.

A robust major-questions lenity would work to restore historic lenity’s insistence on legislative clarity in crime definition.  It would promote the separation of powers by disciplining prosecutors, courts, and ultimately Congress.  Major-questions lenity would substantially limit the practice of implicit delegation of crime definition and help to curb the adoption of overly broad and literalistic constructions of penal states in the lower courts.

Federal judge rejects latest plea deal between Boeing and the US government

As reported in this CNN piece, a "federal judge on Thursday rejected a plea agreement between Boeing and the US government after the company said it would plead guilty to deceiving the Federal Aviation Administration ahead of two fatal 737 Max crashes." Here are the basics:

The rejection by US District Court Judge Reed O’Connor citied his problems with the selection process for a independent monitor required in the plea deal to oversee safety and quality improvement at Boeing.

Boeing agreed in July to plead guilty to one charge of conspiracy to defraud the United States. Under the plea agreement it would pay up to $487 million in fines — a fraction of the $24.8 billion that families of victims of the two crashes want the company to pay.

O’Connor had problems with the idea that the Justice Department, not the court, would have approval over the selection of the monitor and how Boeing had performed under an earlier settlement with the Justice Department in January 2021 over the same charges.  That agreement had deferred prosecution until the safety issues were again raised by a door plug blowing off a 737 Max plane flown by Alaska Airlines in January.

“It is fair to say the government’s attempt to ensure compliance has failed,” O’Connor wrote in his opinion. “At this point, the public interest requires the court to step in. Marginalizing the court in the selection and monitoring of the independent monitor as the plea agreement does undermines public confidence in Boeing’s probation.”  One of O’Connor’s problems with the plea agreement was that the Justice Department had said Boeing and Justice would have to consider race when hiring the independent monitor. But he also was upset that the court did not have a role in the selection process....

“Rejection of the plea deal is an important victory of the families in this case and, more broadly, crime victims’ interests in the criminal justice process,” said Paul Cassell, attorney for family members of crash victims, in a statement. “No longer can federal prosecutors and high-powered defense attorney craft backroom deals and just expect judges to approve them. Victims can object – and when they have good reasons for striking a plea, judges will response.”

“This order should lead to a significant renegotiation of the plea deal to reflect the 346 deaths Boeing criminally caused and put in place proper monitoring of Boeing to ensure that it never again commits a crime like this in the future,” he added.

The full 12-page order from Judge O'Connor is available at this link.

Prior related post:

• Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?
• Crash victims' families formally object to proposed Boeing plea deal 

"Sentencing Insurrection"

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

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

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

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

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

"Expanding Homicide Liability for a Parent’s Omission"

The title of this post is the title of this new essay authored by Monu Singh Bedi now available via SSRN. Here is its abstract:

Earlier this year, Jennifer and James Crumbley were convicted of manslaughter and sentenced to 10-15 years for not stopping their teenage son, Ethan, from killing four students at his high school.  This is the first known occurrence of an American prosecutor obtaining a homicide conviction relying on a parental omission-or failure to act-where the victim was not the parent's own child.  Parental omissions historically have only triggered homicide charges if the parent fails to protect their child, not others, from harm.  Unlike the general population, parents owe a special duty to their child because they are the ones tasked to oversee the child's care.  The Crumbley verdict has dislodged this longstanding criminal precedent. It has expanded a parent's common law duty to include protection of the would-be victims of their child's criminal acts.  Recently, in fact, Georgia has brought manslaughter charges against the parent of a school shooter under similar circumstances.  This Essay provides the first legal assessment of this prosecutorial theory and analyzes the various doctrinal, constitutional, and policy considerations surrounding its use.

New Death Penalty Information Center report presents critical account of federal death penalty history

The Death Penalty Information Center has today released this new report titled "Fool’s Gold: How the Federal Death Penalty Has Perpetuated Racially Discriminatory Practices Throughout History."  The title leaves little doubt about the tone and leanings of the report, and here is its executive summary to the same effect (which only appears online and not in the full report):

In 2020, President Joe Biden promised to end the federal death penalty during his administration and his Attorney General, Merrick Garland, acknowledged its many longstanding concerns as reasons to pause federal executions pending an internal review of Department of Justice policies and practices. Project 2025, the product of a political conservative movement, calls for President Trump to “obtain finality” for all federal death row prisoners. Before any decision about future use of the federal death penalty is made, it is critically important to understand its history and the serious flaws in the way it is used today. Although sometimes referred to as the “gold standard” of capital punishment, an analysis of the federal death penalty reveals that it is plagued by the same serious problems as state level capital punishment systems.

The federal death penalty has been used disproportionately against people of color: to subjugate Native Americans Resisting Colonization, and to intimidate and terrorize newly freed Black Americans.

Before the start of the Civil War, the federal death penalty was used primarily against white men. After slavery was abolished and the U.S. continued its westward expansion, however, the demographics of those executed shifted. At least 58 Native Americans were executed by the federal government between 1862 and 1899, with the majority killed in mass executions (defined as at least three people executed at the same time).

Black Americans were also overrepresented among those executed. Before the Civil War, 8 Black people were executed by the federal government; between 1862 and 1899, 47 Black people were federally executed — a 488% increase. Most of these executions occurred during the Reconstruction era, which also saw a dramatic rise in the extralegal lynchings of Black people....

Since the federal death penalty was reinstated in 1988, multiple studies have demonstrated that racial disparities continue to define federal capital prosecutions. The Death Penalty Information Center’s 1994 review of federal prosecutions found that “no other jurisdiction comes close to th[e] nearly 90% minority prosecution rate” seen at the federal level. A 2001 supplementary study found similarly jarring disparities, with nearly 80% of cases involving non-white defendants. A review of all federal death penalty authorizations from 1989 to June 2024 reveals that these disparities persist: 73% of all cases authorized for prosecution involved defendants of color.

Similar to use of the death penalty at the state levels, statistics suggest that there is a correlation between the race and gender of a victim and a federal death sentence. Defendants who killed white female victims receive the death penalty at a substantially higher rate than defendants whose victims were not white women.

The Death Penalty Information Center website all has this accounting of "Five Facts To Know About the Federal Death Penalty."

Bureau of Justice Statistics releases new report on "Methamphetamine, Cocaine, and Other Psychostimulant Offenses in Federal Courts, 2022"

Via email, I learned of this notable new report released today by the Bureau of Justice Statistics, titled "Methamphetamine, Cocaine, and Other Psychostimulant Offenses in Federal Courts, 2022."   The reportprovides details on persons arrested and convicted for a federal offense in Fiscal Year 2022 involving various (but not all) federal controlled substances: "Fifty-five percent (14,392) of the total arrests (26,233) the Drug Enforcement Administration (DEA) made during fiscal year (FY) 2022 were for methamphetamine, cocaine, and other psychostimulant offenses." The discussion of sentencing in this report appears drawn from US Sentencing Commission data, and here is a small part of an extended data discusssion:

In FY 2022, 14,420 persons were sentenced for a drug offense involving psychostimulants, an increase from 12,616 in FY 2021. Methamphetamine (9,704) was the psychostimulant type that the largest number of persons were sentenced for in FY 2022, followed by powder cocaine (3,476) and crack cocaine (1,117)....

On average, the number of persons sentenced for psychostimulants decreased by 1% annually from FY 2002 to FY 2022. More persons were sentenced for methamphetamine (up 5% annually) in FY 2022 than in FY 2002. Fewer persons were sentenced for drug offenses involving MDA and MDMA (down 11% annually) crack cocaine (down 7% annually) and other amphetamines (down 4% annually) in FY 2022 than in FY 2002....

Nearly three-quarters (73%) of persons sentenced for a drug offense involving psychostimulants in FY 2022 were sentenced below the applicable guideline range. Thirty-five percent of persons sentenced received a downward departure (a more lenient sentence than the guideline range). The most common (21%) downward departure was a substantial assistance departure for assisting the authorities in the investigation or prosecution of another person or organization.  Nine percent of persons sentenced for a drug offense involving psychostimulants received an early disposition program departure, which occurs when the government seeks a sentence below the guideline range because the person participated in the government’s expedited guilty plea program.  An additional 37% of persons sentenced for a psychostimulant drug offense received either a downward range variance (24%) or a governmentsponsored variance (13%) Reductions in sentences, both departures and variances, were due to prosecutors’ motions 43% of the time.

In FY 2022, 94% of persons sentenced for a drug offense involving psychostimulants were sentenced to imprisonment only. The median term of imprisonment for persons sentenced for a drug offense involving psychostimulants was 70 months. Persons sentenced for a drug offense involving methamphetamine received a median prison term of 94 months in FY 2022.

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

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

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

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

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

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

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

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

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

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

How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?

Throughout his succesful campaign for a return to the Oval Office, Donald Trump spoke repeatedly about pardoning persons federally prosecuted for their behaviors at the Capital on January 6, 2021.  With Trump now Preident-Elect, those promises are already leading to court filings in on-going Jan. 6 prosecutions as detailed in this new article:

Hours after most news outlets declared Donald Trump the winner of the presidential election, lawyers for January 6 defendants started to file motions, hoping to reap the benefits.

On Wednesday morning, an attorney for Christopher Carnell, who was found guilty of obstruction and other charges related to the riot on January 6, 2021, filed a motion to postpone a status hearing scheduled for Friday....  Carnell sought to move the hearing to December because he "is now awaiting further information from the Office of the President-elect regarding the timing and expected scope of clemency actions relevant to his case."... A judge denied Carnell's request on Wednesday....

An attorney for Jaimee Avery, another January 6 defendant, also filed a motion to delay a sentencing hearing scheduled for Friday.  Avery's lawyer is seeking to postpone it until after the presidential inauguration in January because of the "real possibility that the incoming Attorney General will dismiss Ms. Avery's case or, at the very least, handle the case in a very different manner."  As such, it would be "fundamentally unfair" for Avery to be sentenced this week....

The Justice Department's investigations and trials related to January 6 are ongoing. As of November, the Justice Department said that over 1,532 people had been charged, including 571 people who face felony charges of assaulting or impeding the police....

Trump has maintained that he would pardon many of the defendants, with the exception of those who are "evil and bad," he told Time in April.  Speaking to the National Association of Black Journalists in July, Trump said he would "absolutely" pardon rioters. "If they're innocent, I would pardon them," he said. "They were convicted by a very tough system."

Obviously, it is not entirely clear just what Trump may mean by "innocent" and "evil and bad" as determinants of who he will and will not pardon among the Jan. 6 defendants once he gets back to the White House.  But it does seem Trump is disinclined to issue a blanket pardon to all the Jan. 6 defendants.  And, as detailed in this April 2024 NBC piece, the Trump campaign was eager to stress that Jan. 6 clemency would involve a "case-by-case" process:

Former President Donald Trump ...  said that, if elected, he'd "absolutely" consider pardoning every single one of the hundreds of criminals convicted in connection with the attack on the U.S. Capitol.  But Trump's campaign, in a statement to NBC News, said such pardons would be "on a case-by-case basis," not the sort of blanket pardon Trump referred to in a recent interview with Time magazine....

"As President Trump has promised, he will pardon January 6th protestors who are wrongfully imprisoned by Crooked Joe Biden’s Justice Department, and those decisions will be determined on a case-by-case basis when he is back in the White House,” Karoline Leavitt, national press secretary for the Trump campaign, said.

I would guess that more than a few January 6 defendants and their supporters are already preparing clemency materials and that folks may already be trying to get them to Prez-Elect Trump and his team well before he takes office on January 20, 2025.  That reality leads me to wonder just what kind of clemency process Trump and his team might adopt to review the huge universe of 1,500+ Jan. 6 defendants that may seek clemency. 

Notably, Trump during his first term showed little interest in utilizing the traditional (and traditionally slow) Justice Department process for reviewing clemency applications.  But he also only issued a few dozen clemency grants before his final year in office and many of those involve high-profile political cases.  In his final year in his first Term (and especially once he was a lame duck), Trump ramped up his clemency grants, though finishing with still less than 250 total grants over four years.  Carefully reviewing and making case-by-case clemency decisions for all the Jan. 6 defendants would be a massive undertaking that could easily take the Trump team years, and I have to think this work will not be the new administration's top priority.

Notably, President Obama's experiences with clemency in the final years of his seoncd term provides a possible template for this kind of work, though I doubt the Trump team is likely to follow this model.  Working with the Justice Department, as detailed here, the Obama Administration created Clemency Project 2014 (CP14) which set forth a set of criteria for a kind of preferred clemency review at the Justice Department and in the White House.  The administration of CP14 had all sorts of ups and down, but in the end it helped Prez Obama grant a record number of federal commutations (over 1700).  Might Trump create some kind of CP25 to deal with the Jan. 6 cases?  

Interesting times.

"Child Rape and the Death Penalty"

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

In May 2023, Florida authorized the death penalty for the sexual battery of a child under twelve.  The law, which passed with overwhelming bipartisan support, challenges the Supreme Court to overrule Kennedy v. Louisiana, the controversial 2008 decision holding that the Eighth Amendment prohibits capital punishment for the rape of the child. Tennessee followed suit with its own capital rape law in May 2024, and six other states have considered similar expansions to the scope of the death penalty in the past year.

This surge of legislative interest in capitalizing child rape has received limited attention, but it suggests the reemergence of an old frontier in Eighth Amendment jurisprudence.  There is a need to reexamine Kennedy in this light and, more broadly, to interrogate the paradoxical role that sex crimes against children occupy in American law and culture.

This Article provides that analysis and makes three scholarly contributions.  First, the Article provides a thick descriptive account of the dissonance of the criminal system's response to child sexual abuse -- a blend of apathy and outrage, horror and indifference.  Second, the Article uses the concept of disgust to reconcile these seemingly contradictory narratives.  Though most often associated with food and bodily waste, disgust can attach equally to social violations.  Scholars have employed disgust to explain anti-sodomy laws, incest prohibitions, and domestic violence judgments, and this Article extends the analysis to child rape.  Third, the Article argues that understanding these prosecutions through the lens of disgust reveals the constitutional infirmities of the death penalty for child rape. Ultimately, the Article suggests that capital child rape laws act as a symbol of revulsion at the expense of the broader system of punishment, an expression that reflects our own unsettled view of the crime.

"Grants Pass And The Pathology Of The Criminal Law"

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

Last Term, the Supreme Court held that cities may, consistent with the Eighth Amendment, criminalize sleeping in public, even for people who have no other alternatives.  That decision, Grants Pass v. Johnson, ostensibly rests on a formalistic distinction between criminalizing status, such as the status of homelessness, and criminalizing conduct, such as sleeping in public.  This distinction fatally undermines the Eighth Amendment’s “status crimes” doctrine.  The majority opinion has been decried by homeless advocates as inhumane and counterproductive, and the case produced a pointed dissent that has been lauded by court watchers.

As this Essay explains, however, the outcome in Grants Pass was necessitated not by the merits of a thin status–conduct distinction, but by judicial deference to an ever-expanding criminal law.  The dissent’s preferred interpretation of the Eighth Amendment (in which the laws at issue impermissibly punish the “status” of homelessness) arguably implicates three distinct constitutional claims: one about the wrongfulness of punishing status, one about the wrongfulness of punishing involuntary conduct, and one about the wrongfulness of punishing in the absence of culpability.  Once disaggregated, each of those claims proves to be in tension with contemporary criminal practices — neither status, nor involuntariness, nor lack of culpability currently prevents the infliction of criminal punishment.  In other words, the dissent’s preferred interpretation would have unsettled a considerable amount of criminal law. Grants Pass can therefore best be understood as revealing the Supreme Court’s reticence to check states’ expansive — and expanding — approach to criminal liability.

So understood, the Grants Pass case provides an important supplement to the literature on criminal law’s political pathology, demonstrating that a federal constitutional solution is likely out of reach under the current court.  Just as legislatures and prosecutors drive expansive criminalization, expansive criminalization narrows the range of constitutional remedies, even for obvious injustices such as punishing the unhoused for sleeping.  Prescriptively, the Essay calls for homeless advocates to step away from the Eighth Amendment and toward doctrines — particularly under state constitutions — that more explicitly engage with the agency of unhoused individuals.

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

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

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

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

"Categorical Declinations & Democracy"

The title of this post is the title of this new paper now available on SSRN authored by Brenner Fissell. Here is its abstract:

The most contentious action taken by reform prosecu­tors has been the issuance of categorical declination policies. Opponents decry this as bureaucratic nullification­ of democratically enacted offenses, while the prosecutors themselves counter that they are responding to the will of their local electorate.  Democracy claims, it appears, have taken center stage in this debate, and they are deployed by both sides.  How should we think about democracy and categorical declinations?  The most comprehensive scholarly work on this subject is a 2021 article by Professor Kerrel Murray.  In this essay, I hope to continue the work begun by M­urray, offering additional insights that bear on the relationship of categorical declinations and democracy.

Most significantly, I aim to bring to this conversation the tools of deliberative democratic theory — a vision of democracy that is extremely influential, but not taken up by Murray.  Viewing deliberation as the touchstone of democracy, as this theory does, has implications for both (1) the institutional site for decriminalization decisions, and (2) the type of offenses that might be legitimately decriminalized by declination.  State legislatures are structurally superior deliberative bodies, but local prosecutors can ameliorate their deliberative deficits by seeking ratification of their decisions by local legislatures.  Moreover, deliberation rests on a deeper commitment to the mutual respect for the freedom and equality of other persons, and this commitment suggests that there is an upper limit on the severity of crimes that can be legitimately declined.  Declination of serious offenses asks too much of the state-level co-citizens who enacted the offenses, in that it asks them to abandon their reciprocal concern for the lives of their local brethren. Conversely, reciprocal concern suggests that purely victimless crimes can be subject to declination with far less democratic concern, as there is no co-citizen whose basic liberties are infringed through the elimination of the protection of the law.  The actual practice of reform prosecutors appears to treat crime severity as an important consideration, as no prosecutor has attempted to decriminalize a serious felony.

Still another variation on animal abuse produces another notable federal sentencing

Over the last month, I have noticed and blogged about a number of notable recent sentencing stories involving aninals (see links to prior posts below).  I am not sure if I should keep blogging in this genre, but I am sure this latest story, headlined "Etna monkey torture video producer gets sentenced to federal prison," is another variation on an ugly theme: 

A federal judge sentenced an Etna man to more than four years in prison after he pleaded guilty to charges that he conspired to create and distribute videos depicting torture and sexual abuse against monkeys.

U.S. District Judge Edmund A. Sargus Jr. sentenced Ronald P. Bedra, 42, to 4½ years in prison Thursday, according to a news release. In April, he pleaded guilty to creating and distributing “animal crush” videos and distributing them, the release says.

Investigators say Bedra conspired with other people to create and distribute the videos, which depict sadistic violent acts against baby and adult monkeys. Using encrypted chat applications, Bedra sent money to people in Indonesia willing to commit the tortious acts on camera, the release says. Some of the videos contain images of monkeys’ fingers and limbs being severed and others abused with a heated screwdriver, according to investigators.

“We will punish participants of sadistic conspiracies like this one no matter their role in the crime,” U.S. Attorney Kenneth Parker said in the release. “As this case shows, even if you do not commit the torture firsthand, you will be held accountable for promoting this obscene animal abuse.”

Investigators also said Bedra mailed a thumb drive to a co-conspirator in Wisconsin containing more than 60 videos of monkeys being tortured.

“Defendant Ronald Bedra commissioned grotesque videos of torture of juvenile and baby monkeys,” Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division said in the release. “Such appalling conduct has no place in our society. The Justice Department stands ready to prosecute individuals engaging in this activity to the fullest extent of the law.”

Prior recent related posts:

• A reminder that kicking a cat down the road can get you sentenced to years in a federal prison 
• Negligent owners get decades in prison for deadly failings to control dogs
• Another notable long sentence for cruel animal mistreatment 
• Yet another wild (and wildlife) animal crime leads to notable federal sentencing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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