Monday, July 19, 2021

First Jan 6 rioter to be sentenced on felony charges gets (below-guideline) sentence of eight months in federal prison

As noted in this preview post on Friday, this morning was the scheduled sentencing day for Paul Allard Hodgkins, who carried a Trump flag into the well of the Senate during the January 6 riot at the Capitol.  Hodgkins' sentencing has been seen as particularly significant because he is the very first person to be sentenced on felony charges stemming from his actions on January 6 — one misdemeanor defendant has been sentenced to probation — and because Hodgkins' sentencing memo and the Government's sentencing memo made notable arguments as he sought probation and as the government urged an 18-month prison term (at the midpoint of the calculated guidelines range of 15 to 21 months).

This AP piece reports via its headline that the federal sentencing judge here did what often happens in these kinds of cases, namely he came quite close to splitting the difference: "Capitol rioter who breached Senate sentenced to 8 months."  Here are more details on this notable federal sentencing:

A Florida man who breached the U.S. Senate chamber carrying a Trump campaign flag was sentenced Monday to eight months behind bars, the first resolution for a felony case in the Capitol insurrection.

Paul Allard Hodgkins apologized and said he was ashamed of his actions on Jan 6. Speaking calmly from a prepared text, he described being caught up in the euphoria as he walked down Washington’s most famous avenue, then followed a crowd of hundreds up Capitol Hill and into the Capitol building. “If I had any idea that the protest … would escalate (the way) it did … I would never have ventured farther than the sidewalk of Pennsylvania Avenue,” Hodgkins told the judge. He added: “This was a foolish decision on my part.”

Prosecutors had asked for Hodgkins to serve 18 months behind bars, saying in a recent filing that he, “like each rioter, contributed to the collective threat to democracy” by forcing lawmakers to temporarily abandon their certification of Joe Biden’s 2020 election victory over President Donald Trump and to scramble for shelter from incoming mobs.

His sentencing could set the bar for punishments of hundreds of other defendants as they decide whether to accept plea deals or go to trial. He and others are accused of serious crimes but were not indicted, as some others were, for roles in larger conspiracies. Under an agreement with prosecutors, Hodgkins pleaded guilty last month to one count of obstructing an official proceeding, which carries a maximum 20-year prison sentence. In exchange, prosecutors agreed to drop lesser charges, including entering a restricted building and disorderly conduct.

Video footage shows Hodgkins wearing a Trump 2020 T-shirt, the flag flung over his shoulder and eye goggles around his neck, inside the Senate. He took a selfie with a self-described shaman in a horned helmet and other rioters on the dais behind him.

His lawyer pleaded with Judge Randolph Moss to spare his 38-year-old client time in prison, saying the shame that will attach to Hodgkins for the rest of his life should be factored in as punishment. The lawyer argued in court papers that Hodgkins’ actions weren’t markedly different from those of Anna Morgan Lloyd — other than Hodgkins stepping onto the Senate floor. The 49-year-old from Indiana was the first of roughly 500 arrested to be sentenced. She pleaded guilty to misdemeanor disorderly conduct and last month was sentenced to three years of probation.

Hodgkins was never accused of assaulting anyone or damaging property. And prosecutors said he deserves some leniency for taking responsibility almost immediately and pleading guilty to the obstruction charge. But they also noted how he boarded a bus in his hometown of Tampa bound for a Jan. 6 Trump rally carrying rope, protective goggles and latex gloves in a backpack — saying that demonstrated he came to Washington prepared for violence.

Prior related posts:

July 19, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

Friday, July 16, 2021

Feds advocate for (mid-guideline) prison term of 18 months for first Jan 6 defendant due to be sentenced on felony charge

As noted in this Washington Post piece, a notable federal sentencing is scheduled for Monday and federal prosecutors have a notable sentencing recommendation for the judge: "U.S. prosecutors on Wednesday urged a federal judge to impose an 18-month prison term on the first defendant to face sentencing for a felony in the Jan. 6 Capitol breach, citing the need to deter domestic terrorism."  Here is more:

“The need to deter others is especially strong in cases involving domestic terrorism, which the breach of the Capitol certainly was,” Special Assistant U.S. Attorney Mona Sedky said in a government sentencing request for Tampa crane operator Paul Allard Hodgkins, 38, who carried a Trump flag into the well of the Senate....

Hodgkins’s sentencing, scheduled for Monday, could set the bar for what punishment 100 or more defendants might expect to face as they weigh whether to accept plea offers by prosecutors or take their chances at a trial by jury.  About 800 people entered the building, U.S. officials have said, with more than 500 individuals charged to date and charges expected against at least 100 others.  About 20 people have pleaded guilty, and one misdemeanor defendant has been sentenced to probation.

In Hodgkins’s case, Sedky cited FBI Director Christopher A. Wray’s testimony in March to the Senate that the problem of homegrown violent extremism is “metastasizing,” with some actors growing emboldened by the Capitol riot....  Sedky also asked U.S. District Judge Randolph D. Moss of Washington to recognize prior court findings that though individuals convicted of such behavior may have no criminal history, their beliefs make them “unique among criminals in the likelihood of recidivism.”

Hodgkins pleaded guilty on June 2 to one felony count of entering the Capitol to obstruct Congress, a common charge being used by prosecutors.  Unlike other defendants, he was not accused of other wrongdoing or involvement with extremist groups, nor did he enter a cooperation deal with prosecutors.  Under advisory federal guidelines, he could face a prison sentence of 15 to 21 months.

Hodgkins poses an intriguing example for defendants against whom prosecutors have threatened to seek enhanced domestic terrorism penalties, lawyers said.  Such enhancements, if found to apply, could more than double a defendant’s guidelines range or otherwise increase recommended penalties, although judges would have the final say. In Hodgkins’s case, prosecutors did not ask the judge to apply the enhancement, even though they wrote Wednesday that his conduct met the definition of violence “calculated to influence or affect the conduct of government by intimidation or coercion.”  Instead, prosecutors said a “midpoint” sentence in Hodgkins’s existing range was appropriate, but still urged Moss to consider the importance of dissuading future acts of domestic terrorism.

Hodgkins has asked for a below-guidelines sentence of probation.  His attorney urged Moss to follow the example of President Abraham Lincoln’s planned approach to the defeated South after the Civil War, before he was assassinated.  “Today, this Court has a chance to make a difference,” Tampa attorney Patrick N. Leduc wrote, asserting that America now is “as divided as it was in the 1850s” on racial and regional lines.  “We have the chance to be as Lincoln had hoped, to exercise grace and charity, and to restore healing for those who seek forgiveness. Alternatively, we can follow the mistakes of our past: to be harsh, seek vengeance, retribution, and revenge, and continue to watch the nation go down its present regrettable path,” Leduc said.

Lawyers familiar with the Capitol probe have said the case illustrates how prosecutors are taking a carrot-and-stick approach in plea talks, threatening to hit some defendants with tougher sentencing guidelines calculations while showing some flexibility for those not accused of any violent conduct in a bid to resolve cases short of trial.

For example, another Jan. 6 defendant pleaded guilty Wednesday to the identical charge as Hodgkins. However, Josiah Colt, 34, of Idaho, faced a sentencing guidelines range three times as high, 51 to 63 months, after admitting that he came armed to Washington and was with others accused of violently interfering with police. Colt, however, entered a cooperation deal, implicating two men he was with in plea papers and agreeing to aid investigators in exchange for a recommendation of leniency.

Several defense attorneys in the probe privately called prosecutors’ tactics draconian in some cases, saying they are threatening years of prison time for individuals not charged with violence and giving them little choice but to face trial.

The Post has also helpfully provided links to Hodgkins' sentencing memo and the Government's sentencing memo.  They both make for interesting reads.  And, as always, I welcome reader views on how they think the 3553(a) factors ought to play out in sentencing in this high-profile case.

Prior related posts:

July 16, 2021 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Wednesday, July 14, 2021

"Criminalizing Migration"

The title of this post is the title of this notable short paper now available via SSRN authored by César Cuauhtémoc García Hernández.  Here is its abstract:

Beginning in the 1980s, the United States embarked on a decades-long restructuring of federal laws criminalizing migration and increasing the consequences for migrants engaging in criminal activity.  Today, the results are clear: a law enforcement apparatus and immigration prison system propelled by a vast infrastructure of laws and policies.  The presidency of Donald Trump augmented this trend and brought it to public attention.  But lost in President Trump’s unique flair is an ideological commitment shared by multiple presidential administrations and legislators from both major political parties to use the criminal justice system and imprisonment to sift migrants.  Examining these ideological attachments reveals Trump-era policies to be the outer edge of decades-long trends rather than extreme and momentary deviations from the norm.

July 14, 2021 in Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

What legally distinguishes a "non-violent Federal cannabis offense" from a violent one (and would multiple SCOTUS rulings be needed to sort this out)?

Legal Marijuana Oregon Measure 91The question in the title of this post is prompted by key language in the resentencing and expungement provision of the "discussion draft" of Senate Majority Leader Chuck Schumer's new federal marijuana reform bill, the Cannabis Administration and Opportunity Act.  The full text of this CAO "discussion draft" is available here; this highly-anticipated bill draft runs 163 pages and covers all sorts of reform and regulatory issues related of federal marijuana law and policy (see coverage here at MLP&R).  Of course, I am distinctly interested in the criminal justice provisions of this bill, and I was excited to see there is a dedicated section (sec. 311) devoted to "RESENTENCING AND EXPUNGEMENT."  But the CAOA bill draft includes a notable (and I think problematic) linguistic limit on the reach of resentencing and expungement.

Specifically, the main expungement provision of the CAOA calls for automatic expungement of only a "non-violent Federal cannabis offense."  CAO sec. 311(a)(1) (emphasis added).  Similarly, the provision allowing for "sentencing review" states:

For any individual who is under a criminal justice sentence for a non-violent Federal cannabis offense, the court that imposed the sentence shall, on motion of the individual, the Director of the Bureau of Prisons, the attorney for the Government, or the court, conduct a sentencing review hearing.  If the individual is indigent, counsel shall be appointed to represent the individual in any sentencing review proceedings under this subsection.

CAO sec. 311(b)(1) (emphasis added).  I really like the provision requiring the appointment of counsel for these "sentencing review proceedings."  But I wonder and worry that, if this provision were to become law, counsel might be spending way too much time just figuring out whether prospective clients qualify as "non-violent" federal cannabis offenders. 

Though we all often use terms like violent and non-violent as offense descriptors, federal criminal justice practitioners know all too well that there is never-ending litigation in the context of many other federal statutes and provisions concerning whether certain prior offenses qualify as "violent" or not.  (Frustrated by just one small piece of this litigation, I joked in this post that one of the circles of hell set forth in Dante's Inferno surely involved trying to figure out what kinds of past offenses can or cannot be properly labeled "violent.")

Especially troublesome in this context is the realty that, technically, all basic federal drug offenses are "non-violent" because there are not any formal elements of these offenses that require any proof of force or injury.  And yet, more than a few "drug warriors" have been heard to say that all drug crimes are by their very nature violent and that the only types of  drug offenders who get the attention of federal prosecutors are those who have a violent history or violent tendencies.  Consequently, I would expect that federal defense attorneys would have a basis to argue that every  "Federal cannabis offense" qualifies as non-violent, while federal prosecutors would likely contend that at least some (many?) federal cannabis offenders are to be excluded by this "non-violent" limit in the bill text.

I suspect that this section of the Cannabis Administration and Opportunity Act was just drawn from similar language in the House version of proposed federal marijuana reform (section 10 of the MORE Act), and the CAOA's current status as a "discussion draft" should provide an opportunity to clean up this problematic adjective.  Though I understand the political reason for wanting to distinguish less and more serious drug offenders for expungement and resentencing provisions, the "non-violent" terminology seems to me quite legally problematic.  (There are other aspects of the "RESENTENCING AND EXPUNGEMENT" section of this new bill that are far from ideal, but this terminology struck me as the biggest red flag.)

Some related work in this space:

A few of many prior recent related posts:

July 14, 2021 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Sentences Reconsidered | Permalink | Comments (1)

Friday, July 09, 2021

"Safety, Crisis, and Criminal Law"

The title of this post is the title of this notable new paper authored by Jenny Carroll and now available via SSRN.  Here is the abstract:

Concepts of safety and prevention of danger pervade the criminal law canon.  Arizona is no exception.  The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger.  The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose.  The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions to release or detain pretrial.  On the other end of the criminal law continuum, post-conviction considerations follow suit. Arizona’s sentencing guidelines permit enhancements of the ordinary term of imprisonment in the face of dangerousness.

None of this is unusual or surprising.  Criminal law has long claimed the joined realms of safety and protection as its own. The narrative of these concepts, however, is deceptively complex.  Despite their historical centrality to criminal law, the precise meaning of these terms remains elusive.  Who warrants protection and how that protection is realized is obscure; — its precise calculation a mystery.  Likewise, outside of designating some crimes or actors dangerous, the code and rules define safety or the prevention of danger not by what they are, but by what they are not.  The task of crafting a more precise definition of safety or protection is left to discretionary decision-makers, who in an effort to lend meaning to the written law layer it with acts of application and interpretation.  These discretionary moments matter, not only because they animate the law, but because they occur with far greater frequency than other moments of law creation. Legislation occurs infrequently and seeks to establish baseline policies that are, by their nature, sufficiently general to apply broadly. In contrast, discretionary moments of policing, prosecuting, or judging, happen in the lived trenches and represent moments of contact between the governed and the governing.  For their part, those who live under the law — informal actors — may enjoy moments of discretionary decision-making when they vote as citizens or jurors, though these may be limited, literally and figuratively.  This uses lessons from the COVID-19 pandemic and the response to George Floyd’s death to re-imagine these discretionary moments.

July 9, 2021 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, July 08, 2021

District Judge cites "severe remorse" among reasons to give Michael Avenatti (way-below-guideline) sentence of 30 months in federal prison

This NBC News piece reports that "Michael Avenatti, the brash attorney who had been a leading foe of then-President Donald Trump, was sentenced Thursday to 30 months in prison for a brazen, botched scheme to extort athletic apparel giant Nike out of up to $25 million." Here is more about this high-profile sentencing:

That sentence was much lower than the nine years that was the bottom of the sentencing range suggested by federal guidelines, and not anywhere close to “a substantial” prison term sought by federal prosecutors for the California lawyer.

“I alone have destroyed my career, my relationships and my life. And there is no doubt I need to pay,” Avenatti, 50, tearfully told Manhattan federal court Judge Paul Gardephe before he was sentenced. “I am truly sorry for all of the pain I caused to Mr. Franklin and others,” Avenatti said, referring to his former client Gary Franklin, an amateur basketball coach.

Avenatti’s sentencing came more than three years after he gained widespread fame, and infamy, for his bombastic representation of porn star Stormy Daniels, who received a $130,000 hush money payment from Trump’s then-personal lawyer Michael Cohen before the 2016 presidential election to keep her quiet about claims she had sex with Trump years before he ran for the White House.

Daniels is one of several former Avenatti clients that he is charged with swindling in two other separate federal prosecutions, one of which is due to begin next week in California.

Gardephe said that in the Nike scheme, “Mr. Avenatti’s conduct was outrageous.”  "He hijacked his client’s claims, and he used him to further his own agenda, which was to extort Nike millions of dollars for himself,” said the judge, who also sentenced Avenatti to three years of supervised release for the case, in which Avenatti was convicted at trial last year. “He outright betrayed his client,” Gardephe said....

But Gardephe added that Avenatti deserved a lighter sentence than the range recommended by federal guidelines — from nine years to 11-years and three months — because, the judge said that for the first time in the case, “Mr. Avenatti has expressed what I believe to be severe remorse today.”

The judge also cited the brutal conditions in which Avenatti was kept for several months in a Manhattan federal prison after his 2019 arrest. And Gardephe sharply noted, in justifying the lower-than-recommended sentence, how federal prosecutors did not criminally charge Geragos in spite of what they have said was his active participation with Avenatti in the shakedown.

The judge ordered Avenatti, who remains free on bond, to surrender on Sept. 15 to begin his sentence, which Gardephe recommended be served in at the federal prison camp in Sheridan, Oregon. Avenatti’s lawyers had asked for a sentence of just six months....

At his trial next week, Avenatti is accused of crimes that include defrauding clients out of millions of dollars. One of those clients was a mentally ill paraplegic. Avenatti next year is due back in Manhattan federal court to be tried on charges related to allegedly swindling Daniels, out of $300,000 in proceeds for a book she wrote.

July 8, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (8)

Another notable round of new Quick Facts publications from US Sentencing Commission

In a number of prior post, I have praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format"). This is another such post intended to flag these newest publications:

July 8, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

Wednesday, June 30, 2021

The Sentencing Project releases "A New Lease on Life" looking at release mechanisms and recidivism realities

Images (3)The Sentencing Project today released this timely new report titled "A New Lease on Life" which starts with these "Findings and Recommendations":

A dramatic consequence of America’s investment in mass incarceration is life imprisonment.  Today there are more people serving life sentences alone than the entire prison population in 1970, the dawn of the mass incarceration era.  Though life sentences have always been allowable in the U.S., it is only in recent decades that these sentences have become normalized to such an extent that entire prisons are now filled or nearly filled with people serving life terms.

Despite a cultural tendency for Americans to view the U.S. crime and criminal legal system as “exceptional,” other countries have experienced ebbs and flows in crime rates but have not resorted to the levels of imprisonment, nor the lengths of prison sentences, that are commonplace in the U.S.  To the contrary, restoration of human dignity and the development of resilience are at the core of an evolved criminal legal system; systems elsewhere that emphasize the responsibility of government support to returning citizens serves as a model for the U.S.

In this report we set out to accomplish two tasks.  First, we examine reoffending rates among people released from prison after a violent crime conviction and review research on the topic, covering both domestic and international findings.  Second, we provide personal testimony from people who have left prison after a violent crime conviction.  Inviting impacted persons to share their transition experiences serves policymakers and practitioners in strengthening necessary support for successful and satisfying reentry from prison. This report focuses on the outcomes of a narrow segment of the prison population: people convicted of violent crimes, including those sentenced to life and virtual life sentences, who have been released to the community through parole or executive clemency.  People with violent crime convictions comprise half the overall state prison population in the U.S. They are depicted as the most dangerous if released, but ample evidence refutes this.

Findings

• We can safely release people from prison who have been convicted of violent crime much sooner than we typically do. Most people who commit homicide are unlikely to do so again and overall rates of violent offending of any type among people released from a life sentence are rare.

• Definitional limitations of the term “recidivism” obstruct a thorough understanding of the true incidence of violent offending among those released from prison, contributing to inaccurate estimates of reoffending.

• People exiting prison from long term confinement need stronger support around them. Many people exhibit a low crime risk but have high psychological, financial, and vocational demands that have been greatly exacerbated by their lengthy incarceration.

• People exiting prison after serving extreme sentences are eager to earn their release and demonstrate their capacity to contribute in positive ways to society. Prison staff and peers view lifers as a stabilizing force in the prison environment, often mentoring younger prisoners and serving as positive role models.

We make five recommendations that, if adopted, will advance our criminal legal system toward one that is fair, efficient, and humane.

1. Standardize definitions of recidivism. Authors of government reports and academic studies should take great care to standardize the definition of criminal recidivism so that practitioners, policymakers, the media, and other consumers of recidivism research do not carelessly interpret findings on reoffending statistics without digging into either the meaning or the accuracy of the statements.

2. Insist on responsible and accurate media coverage. Media consumers and producers alike must insist on accurate portrayals of crime despite the temptation to skew media coverage so that rare violent crime events appear as commonplace. Heavily skewed media coverage of rare violent crime events creates a misleading view of the frequency of violent crime. Add to this the overly simplistic assumption, allowed by inarticulate reporting, that people released from prison have caused upticks in violence.

3. Allow some level of risk. Reset the acceptable recidivism rate to allow for reasonable public safety risk. The public’s risk expectation is currently set at zero, meaning that no amount of recidivism is politically acceptable in a system that “works” even though such expectations are not attainable in any sphere of human endeavor or experience. But this expectation is largely based on highly tragic and sensationalized events that are falsely equated as the result of releasing people from prison. We have to balance our aspirations for a crime-free society with reasonable approaches to public safety and human rights considerations for both those who have caused harm and those who have been victimized by it.

4. Reform and accelerate prison release mechanisms. Decisionmakers considering whether to grant prison release rely too heavily on the crime of conviction as the predominant factor under consideration. This approach is neither fair nor accurate. It is unfair because it repunishes the individual for a crime for which they have already been sanctioned. Risk of criminal conduct, even violent criminal conduct, closely tracks aging such that as people age into adulthood there is a sharp decline in proclivity to engage in additional acts of violence.

5. Substantially improve housing support. Inability to secure housing after release from prison was mentioned frequently by people we interviewed for this report. Failure of the correctional system to ensure stable housing upon exit from decades-long prison sentences imposes unnecessary challenges. Though some released persons will be able to rely on nonprofit charity organizations, shelters, or family, the most vulnerable people will fall through the cracks. We have both a public safety and a humanitarian obligation to avoid this result.

June 30, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, June 29, 2021

Interesting split Fourth Circuit panel debate while upholding resentencing to 52 years for violent offenses by 15-year-old

A helpful reader made sure I did not miss the interesting discussion of sentencing practices and outcomes by a Fourth Circuit panel yesterday in US v. Friend, No. 20-4129 (4th Cir. June 28, 2021) (available here). The first paragraph of the majority opinion sets the terms:

Appellant Philip Friend, who actively participated as a fifteen-year-old juvenile in a series of violent carjackings, challenges the fifty-two-year sentence imposed by the district court after a remand in this case.  Our remand instructed the district court to give a more thorough explanation for its sentence, with the prospect that a more tempered sentence might also result.  United States v. Friend, 755 F. App’x 234 (4th Cir. 2018).  These things have now both come to pass. The offenses in question occurred long ago, but their consequences have been long lasting. Because the district court acted within its discretion in imposing the present sentence, we affirm.

And here is a key passage from the majority's extended discussion and the concluding sentiments of the majority (cites removed):

But to sum it up, it is clearly permissible for a sentencing court to weigh the gravity of the offense or the impact a defendant’s crimes have had on a community and to vindicate that community’s interest in justice.  That after all, is the reason a defendant is before the court.  An exclusive focus on one factor impermissibly vitiates the requisite individualized consideration.  On the other hand, for appellate courts to micromanage sentencings and demand a district court assign equal weight to each § 3553(a) factor would also disregard a sentencing’s individualized inquiry and toss our deferential abuse-of-discretion review to the winds.  Ultimately, defendant’s disagreement with the district court’s weighing of the sentencing factors is not enough to find the sentence procedurally unreasonable....

To find this sentence unreasonable would displace the discretion that district judges possess in setting sentences. We are a court of appellate review, not a panel of appellate sentencers. District courts are granted exceptional discretion in sentencing for a reason.  They view the full criminal tableau first-hand, and they weigh the conflicting evidence and competing arguments. Their choices are not easy. When a court abuses its discretion, it is this court’s duty to correct the error. But when a district court is responsive to our mandates and reasonably exercises its sentencing power, we must respect its judgment.  So we do here.

Writing in dissent, Judge Floyd explains at length why he sees matters differently. His opinion starts this way:

At the age of fifteen, Philip Bernard Friend and various members of his family committed a series of extremely serious crimes.  Nobody disputes the severity of those offenses or the irreparable harm that Philip visited upon the lives of his victims and their families.  But this appeal tests the legality of the district court’s imposition of a fifty-two year sentence on a juvenile offender.  Today, the majority declares Philip’s half-century sentence procedurally and substantively reasonable.  Because I cannot agree with the majority’s conclusion on either score, I respectfully dissent.

June 29, 2021 in Assessing Miller and its aftermath, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (1)

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses"

Cover_CP-non-prodDespite only having a single commissioner, the US Sentencing Commissioner is continuing to produce interesting federal sentencing data and reports.  This latest USSC report, running nearly 100 pages, was released today under the titled "Federal Sentencing of Child Pornography: Non-Production Offenses."   This report drills into data from fiscal year 2019, and this webpage sets out these "key findings" from the report:

  • Facilitated by advancements in digital and mobile technology, non-production child pornography offenses increasingly involve voluminous quantities of videos and images that are graphic in nature, often involving the youngest victims.
    • In fiscal year 2019, non-production child pornography offenses involved a median number of 4,265 images, with some offenders possessing and distributing millions of images and videos.
    • Over half (52.2%) of non-production child pornography offenses in fiscal year 2019 included images or videos of infants or toddlers, and nearly every offense (99.4%) included prepubescent victims.
  • Constrained by statutory mandatory minimum penalties, congressional directives, and direct guideline amendments by Congress in the PROTECT Act of 2003, § 2G2.2 contains a series of enhancements that have not kept pace with technological advancements.  Four of the six enhancements — accounting for a combined 13 offense levels — cover conduct that has become so ubiquitous that they now apply in the vast majority of cases sentenced under § 2G2.2.
    • For example, in fiscal year 2019, over 95 percent of non-production child pornography offenders received enhancements for use of a computer and for the age of the victim (images depicting victims under the age of 12).
    • The enhancements for images depicting sadistic or masochistic conduct or abuse of an infant or toddler (84.0% of cases) or having 600 or more images (77.2% of cases) were also applied in most cases.
  • Because enhancements that initially were intended to target more serious and more culpable offenders apply in most cases, the average guideline minimum and average sentence imposed for nonproduction child pornography offenses have increased since 2005.
    • The average guideline minimum for non-production child pornography offenders increased from 98 months in fiscal year 2005 to 136 months in fiscal year 2019.
    • The average sentence increased more gradually, from 91 months in fiscal year 2005 to 103 months in fiscal year 2019.
  • Although sentences imposed remain lengthy, courts increasingly apply downward variances in response to the high guideline ranges that apply to the typical non-production child pornography offender.
    • In fiscal year 2019, less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range.
    • The majority (59.0%) of non-production child pornography offenders received a variance below the guideline range.
    • Non-government sponsored below range variances accounted for 42.2 percent of sentences imposed, and government sponsored below range variances accounted for 16.8 percent.
  • Section 2G2.2 does not adequately account for relevant aggravating factors identified in the Commission’s 2012 Child Pornography Report that have become more prevalent.
    • More than forty percent (43.7%) of non-production child pornography offenders participated in an online child pornography community in fiscal year 2019.
    • Nearly half (48.0%) of non-production child pornography offenders engaged in aggravating sexual conduct prior to, or concurrently with, the instant nonproduction child pornography offense in fiscal year 2019.  This represents a 12.9 percentage point increase since fiscal year 2010, when 35.1 percent of offenders engaged in such conduct.
  • Consistent with the key aggravating factors identified in the Commission’s 2012 Child Pornography Report, courts appeared to consider participation in an online child pornography community and engaging in aggravating sexual conduct when imposing sentences, both in terms of the length of sentence imposed and the sentence relative to the guideline range.
    • In fiscal year 2019, the average sentence imposed increased from 71 months for offenders who engaged in neither an online child pornography community nor aggravating sexual conduct, to 79 months for offenders who participated in an online child pornography community, to 134 months for offenders who engaged in aggravating sexual conduct.
    • In fiscal year 2019, offenders who engaged in aggravating sexual conduct were sentenced within their guideline ranges at a rate nearly three times higher than offenders who did not participate in online child pornography communities or engage in aggravating sexual conduct (44.3% compared to 15.6%).
  • As courts and the government contend with the outdated statutory and guideline structure, sentencing disparities among similarly situated non-production child pornography offenders have become increasingly pervasive. Charging practices, the resulting guideline ranges, and the sentencing practices of judges have all contributed to some degree to these disparities.
    • For example, the sentences for 119 similarly situated possession offenders ranged from probation to 228 months though these 119 possession offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
    • The sentences for 52 similarly situated receipt offenders ranged from 37 months to 180 months though these 52 receipt offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
    • The sentences for 190 similarly situated distribution offenders ranged from less than one month to 240 months though these 190 distribution offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
  • When tracking 1,093 nonproduction child pornography offenders released from incarceration or placed on probation in 2015, 27.6 percent were rearrested within three years.
    • Of the 1,093 offenders, 4.3 percent (47 offenders) were rearrested for a sex offense within three years.
    • Eighty-eight offenders (8.1% of the 1,093) failed to register as a sex offender during the three-year period.

June 29, 2021 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Post-Libby commutation developments, Sex Offender Sentencing | Permalink | Comments (1)

Federal plea deal on civil rights charges reportedly in the works for Derek Chauvin

This new local press piece, headlined "Derek Chauvin Closing In On Federal Plea Deal, Sources Tell WCCO," reports on an unsurprising but still interesting development in the legal sagas around George Floyd's killing.  Here are the details:

Multiple sources tell WCCO that federal prosecutors are in talks with former Minneapolis Police officer Derek Chauvin about a possible plea deal.  They say Chauvin is close to reaching a deal, and that is what he was likely referring to when he made a cryptic comment to the family of George Floyd during his sentencing last week.

“Due to legal matters, I’m not able to give a full formal statement … I give my condolences to the Floyd family, there’s gonna be some other information in the future that will be of interest and I hope these will give you some peace of mind,” Chauvin said prior to his sentencing.

Sources suggest Chauvin was likely referring to a plea deal in the federal case against him.  As part of a possible plea deal Chauvin would have to publicly explain what he did to Floyd and why.  That was, of course, the question that Floyd’s brother poignantly asked of Chauvin at the sentencing....

Sources tell WCCO that, as part of the plea, Chauvin could get a 20- to 25-year sentence, which he would serve at the same time as the state sentence, and that he would serve his time in federal not state prison....

Former Hennepin County Chief Public Mary Moriarity says Chauvin has to be thinking about the swift guilty verdict in the state case, and that may be giving him more incentive to try to negotiate a plea deal.  “That is because, in federal court, there would be a substantial difference between what he would receive if he went to trial and was convicted versus what he would get if he pled guilty, and as they say take responsibility for his actions,” Moriarity said.

It’s important to remember an earlier plea deal involving the feds in late May 2020 collapsed at the 11th hour.  The U.S. Attorney’s Office declined to comment, and WCCO also did not hear back from Ben Crump, the Floyd family attorney, or Eric Nelson, the attorney for Chauvin.

It is, of course, entirely right that Chauvin is far more likely to get a lower sentence (and to be able to cap his sentencing exposure) if he enters into a federal plea deal rather than going to trial on pending federal civil rights charges.  But, unlike in the Minnesota system where there is a strong presumption of release after a defendant serves 2/3 of an imposed prison term, in the federal system the norm is service of at least 85% of imposed prison time.  So if Chauvin's federal deal led to the imposition, say, of "only" a 20-year term, he should still expect to serve a full 17 years, whereas his 22.5-year prison term in the state system could lead to his release in "only" 15 years.

That said, this "release math" is only one part of the equation for Chauvin and his lawyers as they consider a federal plea deal.  I suspect Chauvin, for a variety of reasons, would much rather spend his considerable time in the federal prison system than in state prison.  Also, it is interesting to speculate whether and how a federal plea could impact any appeals Chauvin has planned for his state convictions and sentence.  And, not to be overlooked, there are distinct "second look" or "early release" mechanisms in state and federal systems that could prove significant in the future (which, in turn, makes them relevant now for plea negotiations).

Prior related posts:

June 29, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Friday, June 25, 2021

Derek Chauvin gets 22.5 years for killing George Floyd

I am on the road, so will not have a chance to comment until probably tomorrow.  Readers should feel free to share their reactions and thoughts.

UPDATE:  Here are links to a few press pieces regarding the Chauvin sentencing:

From Law360, "Chauvin Sentenced To 22.5 Years In Prison For Floyd Murder"

From the Minneapolis Star Tribune, "Derek Chauvin's sentencing sparks relief but also resolve to keep fighting injustice"

From NBC News, "Chauvin sentence wasn't the max, but it provided some closure"

From NPR, "George Floyd's Family Says Chauvin's Sentencing Is One Step Closer To Healing"

ANOTHER UPDATE I just recently saw this reprinted version of the full sentencing order from Hennepin County District Judge Peter Cahill when he sentenced Derek Chauvin. Here is the short conclusion to the lengthy discussion:

Part of the mission of the Minneapolis Police Department is to give citizens “voice and respect.”  Here, Mr. Chauvin, rather than pursuing the MPD mission, treated Mr. Floyd without respect and denied him the dignity owed to all human beings and which he certainly would have extended to a friend or neighbor.  In the Court’s view, 270 months, which amounts to an additional ten years over the presumptive 150-month sentence, is the appropriate sentence.

June 25, 2021 in Offense Characteristics, Race, Class, and Gender, State Sentencing Guidelines | Permalink | Comments (5)

Thursday, June 24, 2021

Will Derek Chauvin get more or less than 20 years for killing George Floyd?

The question in the title of this post reflects my view that 20 years seems like a reasonable "over/under" estimate for the sentence to be imposed by Minnesota Judge Peter Cahill on Derek Chauvin for murdering George Floyd.  I set this estimate influenced by some of the analysis and punditry from various sources in these preview pieces:

From the AP, "Derek Chauvin faces sentencing tomorrow in George Floyd’s murder — here’s what you need to know"

From CBS News, "Derek Chauvin will be sentenced Friday for the murder of George Floyd. Here's what to expect."

From NBC News, "Police who kill often receive lenient or no punishments. Derek Chauvin could be the exception."

From USA Today, "Derek Chauvin faces up to 30 years in prison in Friday sentencing for murder of George Floyd"

I believe that the sentencing is scheduled for Friday afternoon.  And I sincerely hope that there is general respect for the sentence imposed, whatever it proves to be.    

Prior related posts:

June 24, 2021 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

Wednesday, June 23, 2021

SCOTUS completes OT20 criminal docket with "it depends" Fourth Amendment ruling on misdemeanors and exigent circumstances

Astute law students often learn pretty quickly that "it depends" is often a pretty good answer to hard legal questions.  Consequently, I am not too surprised that the Supreme Court this morning, in deciding the last significant criminal case on its docket this Term, embraced its usual "it depends" approach — more formally a "case-by-case" analysis — to what can constitute exigent circumstances when police pursue a person suspect of a misdemeanor.  The Court's opinion in Lange v. California, No. 20–18 (S. Ct. June 23, 2021) (available here), starts this way:

The Fourth Amendment ordinarily requires that police officers get a warrant before entering a home without permission. But an officer may make a warrantless entry when “the exigencies of the situation” create a compelling law enforcement need.  Kentucky v. King, 563 U.S. 452, 460 (2011).  The question presented here is whether the pursuit of a fleeing misdemeanor suspect always — or more legally put, categorically — qualifies as an exigent circumstance.  We hold it does not.  A great many misdemeanor pursuits involve exigencies allowing warrantless entry.  But whether a given one does so turns on the particular facts of the case.

I will leave it to Fourth Amendment experts to parse this opinion, but I thought it notable (and useful to highlight) how the Court's majority opinion by Justice Kagan stresses the wide variety of crimes we label misdemeanors:

Key to resolving [this case] are two facts about misdemeanors: They vary widely, but they may be (in a word) “minor.” Welsh, 466 U.S., at 750.  In California and elsewhere, misdemeanors run the gamut of seriousness.  As the amicus notes, some involve violence.  California, for example, classifies as misdemeanors various forms of assault. See Cal. Penal Code Ann. §241 (West Cum. Supp. 2021); Brief for Amicus Curiae 15a–16a.  And across the country, “many perpetrators of domestic violence are charged with misdemeanors,” despite “the harmfulness of their conduct.” Voisine v. United States, 579 U.S. 686, ___ (2016) (slip op., at 1).  So “a ‘felon’ is” not always “more dangerous than a misdemeanant.” Tennessee v. Garner, 471 U.S. 1, 14 (1985).  But calling an offense a misdemeanor usually limits prison time to one year. See 1 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §1.8(c) (4th ed. Supp. 2020).  States thus tend to apply that label to less violent and less dangerous crimes.  In California, it is a misdemeanor to litter on a public beach. See Cal. Penal Code Ann. §374.7(a) (2020).  And to “negligently cut” a plant “growing upon public land.” §384a(a)(2), (f ). And to “willfully disturb[] another person by loud and unreasonable noise.” §415(2).  And (last one) to “artificially color[] any live chicks [or] rabbits.” §599(b). In forbidding such conduct, California is no outlier.  Most States count as misdemeanors such offenses as traffic violations, public intoxication, and disorderly conduct.  See, e.g., Tex. Transp. Code Ann. §545.413(a), (d) (West 2011) (driving without a seatbelt); Ill. Comp. Stat., ch. 610, §90/1 (West 2018) (drinking alcohol in a railroad car); Ark. Code Ann. §5–71–207(a)(3), (b) (2016) (using obscene language likely to promote disorder). So the amicus’s (and concurrence’s) rule would cover lawbreakers of every type, including quite a few hard to think alarming.

June 23, 2021 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Notable education efforts prior to sentencing of minor participant in Capitol riot (who seems likely to get probation)

This local article, headlined "Indiana woman to plead guilty in Capitol riot wrote reports on 'Schindler's List,' more," provides the interesting backstory leading up the scheduled sentencing of one person prosecuted for involvement in the Capitol riot on January 6. Here are some details:

A Bloomfield woman will plead guilty this week for her role in the U.S. Capitol riot after appealing to the court that she has learned from her participation from movies and books such as "Schindler's List" and "Just Mercy."  Anna Morgan-Lloyd has agreed to plead guilty to one of her pending federal charges in the Jan. 6 insurrection in exchange for three years probation, $500 in restitution and community service.

The 49-year-old attended what initially began as a rally with her friend Dona Sue Bissey — also federally charged in the riot.  Bissey, whose case is still pending, is scheduled to appear in court July 19.

In a letter to the judge, Morgan-Lloyd apologized for entering the U.S. Capitol and said she feels “ashamed” about how the march that day turned violent.  She attached movie and book reports to her letter, summarizing “Schindler’s List” and “Just Mercy.” Her attorney recommended them, she said, to learn “what life is like for others in our country.”...

Bissey and Morgan-Lloyd referred to Jan. 6 as the “most exciting day” of their lives in Facebook posts, tagging one photo inside the Capitol building.  The FBI arrested the two women in late February, making them among six Hoosiers criminally charged in the aftermath of the insurrection.

Court records show the Acting U.S. Attorney has agreed to the plea, calling Morgan-Lloyd’s participation a serious violation of the law, but noted she did not engage in physical violence or destroy government property.  “To be clear, what the Defendant initially described as “the most exciting day of (her) life” was, in fact, a tragic day for our nation — a day of riotous violence, collective destruction, and criminal conduct by a frenzied and lawless mob,” Acting U.S. Attorney Channing Phillips wrote in court records.

The U.S. listed Morgan-Lloyd’s apparent remorse, no prior criminal history and cooperation with law enforcement after her arrest as some of the reasons for the government’s acceptance of the plea agreement.

This extended HuffPost piece, headlined "A Lawyer For Jan. 6 Defendants Is Giving Her Clients Remedial Lessons In American History," provides additional details on this defendant and the valuable efforts of her defense attorney to turn her prosecution into a "teachable moment."  I recommend this piece in full, and here is an excerpt: 

This week, Morgan-Lloyd will become the first of nearly 500 defendants arrested in connection with the Jan. 6 attack on the U.S. Capitol to face sentencing. She wants a judge to know she’s changed, and her book report-style filings are meant to illustrate that growth. “I’ve lived a sheltered life and truly haven’t experienced life the way many have,” Morgan-Lloyd wrote to the judge. “I’ve learned that even though we live in a wonderful country things still need to improve. People of all colors should feel as safe as I do to walk down the street.”

The remedial social studies program that Morgan-Lloyd is following was created by her D.C.-based lawyer, H. Heather Shaner....  Shaner is one of many D.C. lawyers assigned to represent Capitol defendants who can’t afford their own attorneys, as guaranteed by the U.S. Constitution and as laid out in the Criminal Justice Act.

In addition to representing her clients in court, Shaner has seized an opportunity to try and educate them on the history their teachers glossed over.  Shaner regularly sends her clients who are incarcerated pretrial books to read: “They’re a captured audience, and it’s life-changing for a lot of them.”  But she decided to take an even more intensive approach with her Capitol clients, who were part of another ugly, historical event in American history.

“Reading books and then watching these shows is like a revelation,” Shaner told HuffPost. “I think that education is a very powerful tool ... So I gave them book lists and shows that they should watch.” In addition to Morgan-Lloyd, Shaner represents Capitol defendants Annie Howell, Jack Jesse Griffith (aka Juan Bibiano), Israel Tutrow and Landon Kenneth Copeland, a veteran with post-traumatic stress disorder who had a major episode during a virtual hearing in his case and cursed out everyone on the call. (Copeland, who was filmed assaulting officers at the Capitol on Jan. 6 and is facing the most serious accusations of any of Shaner’s Capitol clients, was ordered to undergo a competency evaluation and remains in custody.)

Shaner said her clients had poor educations and knew very little about the country.  Her two female clients took to the task with zeal, Shaner said, and got library cards for the first time in their lives.  “Both my women are like, ‘I never learned this in school. Why don’t I know about this?’” Shaner said.  (A couple of the male clients weren’t quite as eager students, she said. “The men are very much like ‘Oh, I’ll get to it.’”  But she said some of her male clients have been doing some self-education.)

Here are some links to some of the court filings discussed above:

Government's Memorandum in Aid of Sentencing

Defense's Memorandum in Support of Probationary Sentence

Anna Lloyd Statement (and reports here and here)

Prior related posts:

June 23, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Tuesday, June 22, 2021

Strong extended coverage of modern drug war dynamics from NPR

As noted in this prior post, a number of media outlets ran a number of solid articles about the purported 50th anniversary of the start of the modern "war on drugs."  Valuably, NPR has gone deeper into this multifaceted topic through an extended series of effective pieces.  I have already flagged a few of these segments in prior posts, but I thought it useful to round-up and recommend all that I have now seen here:

June 22, 2021 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Monday, June 21, 2021

Lots of GVRs (especially to Fifth Circuit) on latest SCOTUS order list

In this prior post following the Supreme Court's important ruling in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), limiting applicable ACCA predicates, I asked "How many federal prisoners might now be serving illegal sentences after Borden?".  Though that question may never get a precise answer, today's Supreme Court order list has a bunch of Borden GVRs which showcases which circuits will be most busy with the Borden fallout.

Specifically, by my count, the Borden GVRs come from the Fifth Circuit (16 of them!), the Sixth Circuit (two), the Tenth Circuit (two), and the Eleventh Circuit (one).  There is also a very long list of cert denials in the order list, so I would guess that not everyone pressing an ACCA claim secured a GVR.  (And, of course, there are surely many folks serving Borden-iffy ACCA sentences who did not have pending cert petitions.)

As always, I welcome input on whether any of these GVRs or denials are surprising or noteworthy (or other Borden application news).  

Prior related posts:

June 21, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, June 16, 2021

Notable recent commentary on links between lead exposure and crime rates

Long-time readers may recall that I have long been intrigued by the (often under-discussed) social science research that suggests lead exposure levels may better account for variations in crime rates than just about any other single variable.  In an number of older posts (linked below), I have flagged some articles on this topic, and I have always been eager to note work by researcher Rick Nevin and others who have been eager to put a spotlight on the lead-exposure-crime-link evidence. 

This week, interestingly, I have seen not only some new work by Rick Nevin on this topic, but also by another notable empiricist.  Here are links to the new pieces:

From Jennifer Doleac via the Niskanen Center, "Research Roundup: Lead Exposure Causes Crime"

From Rick Nevin at Juvenile Justice Information Exchange, "Lead Exposure’s Link to Crime Should Shape Criminal Sentencing, Early Release"

From Rick Nevin at his website, "Why are prisons “getting Whiter”?"

I will close here by just quoting one paragraph from the start of the first of these pieces by Jennifer Doleac:

Below, I summarize the latest evidence on the effects of lead exposure on criminal behavior.  Given the tremendous cost of crime to society, investing more in lead remediation to protect children from the dangerous effects of this toxin would be an extremely cost-effective strategy to improve public safety, and one that deserves bipartisan support.

Some prior related posts from this blog:

June 16, 2021 in National and State Crime Data, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Tuesday, June 15, 2021

New plea deals sets possible new precedent for resolving low-level Capitol riot prosecutions with single misdemeanor with 6 month jail maximum

As reported in this Politico piece, headlined "Virginia couple pleads guilty in Capitol riot," the first set of pleas for low-level participating in the January 6 riots were entered in federal court yesterday.  Here are the details:

A Virginia couple on Monday became the third and fourth defendants to plead guilty in the sprawling investigation stemming from the Capitol riot in January.  However, Jessica and Joshua Bustle of Bristow, Va., became the first to plead guilty in federal court who faced only misdemeanor charges as a result of their actions at the Capitol as lawmakers were attempting to certify President Joe Biden’s electoral college victory.

Under a deal with prosecutors, the Bustles each pleaded guilty to one of the four misdemeanor charges they faced: parading, demonstrating or picketing in a Capitol building. They could get up to six months in jail and a fine of up to $5,000, but will be spared the potential of back-to-back sentences on multiple counts.

The arrangement could serve as a template for hundreds of other misdemeanor-only cases filed related to the Jan. 6 events.  Defense attorneys say it also suggests that prosecutors will not readily agree to more lenient resolutions in Capitol riot cases, such as deferring the case and dismissing it following a period of good behavior.

“There’s no guarantee what the sentence will be in this case,” Judge Thomas Hogan told the Bustles during the afternoon hearing, conducted by videoconference. “I can give a sentence that’s legal up to the maximum in the statute: six months.”

According to a complaint filed by an FBI agent in March, Jessica Bustle posted on her Facebook page on Jan. 6: “Pence is a traitor. We stormed the capital.  An unarmed peaceful woman down the hall from us was shot in the neck by cops.  It’s insane here….Pray for America!!!!”  In another post, Jessica Bustle — who said she’s opposed to taking the coronavirus vaccine — indicated she and her husband were attending a “health freedom” rally separate from then-President Donald Trump’s rally. They later decided to check out what was happening at the Capitol, she wrote.  “My husband and I just WALKED right in with tons of other people.” Bustle also wrote: “We need a Revolution.”...

The Bustles have also agreed to pay $500 apiece in restitution, Hogan said.  Both the Bustles' attorneys and a prosecutor said they were prepared to proceed with sentencing Monday, but the judge declined, saying he would set a sentencing date in 4 to 6 weeks.  “I’m not prepared to do sentencing today. I think we have to look at the case a little bit,” said Hogan, an appointee of former President Ronald Reagan. The judge said he wanted to ensure “consistency and comparability” of sentences among the Capitol riot defendants, none of whom have been sentenced thus far.

Many Capitol riot defendants face the four typical misdemeanor charges the Bustles faced plus a felony charge of obstruction of an official proceeding.  The latter charge carries a potential 20-year prison term. It is not clear how prosecutors have distinguished between nonviolent defendants who face only the misdemeanors and those who had the felony charge added on.

The first guilty pleas in the Capitol riot came in April from Jon Schaffer, a heavy-metal guitarist and self-described lifetime member of the Oath Keepers. He admitted to two felonies: obstruction and entering a Secret Service-restricted area while carrying a dangerous weapon.  Schaffer agreed to cooperate in the government’s ongoing conspiracy case against fellow Oath Keepers.  A total of 16 people are now charged in that case.

The second guilty plea was from a Florida man who went onto the Senate floor during the Jan. 6 unrest, Paul Hodgkins.  At a hearing earlier this month, he pleaded guilty to a felony obstruction charge.  Prosecutors agreed to drop the misdemeanor charges against him, but there was no cooperation element to the deal.  He is tentatively set for sentencing on July 19.

This Reuters piece about these latest pleas details a bit more some of the sentencing specifics around the two earlier pleas:

The first guilty plea came in April, when a founding member of the right-wing Oath Keepers, Jon Schaffer, pleaded guilty to two felony charges of obstructing the certification of the 2020 election and breaching a restricted building. Prosecutors are recommending a sentence of between 3-1/2 and 4-1/2 years of prison time for Schaffer, but his sentence will ultimately be decided by a District of Columbia judge.

A Florida man on June 2 became the second person to plead guilty to storming the Capitol. Paul Allard Hodgkins pleaded guilty to one felony count of obstructing an official proceeding. A judge said federal sentencing guidelines call for Hodgkins to receive sentence in the range of 15 to 21 months.

Prior related posts:

June 15, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, June 14, 2021

Perhaps more guns explains why we have more gun homicides and more gun crimes

In this prior post on recent media coverage and political punditry focused on rising crime rates and their political implications, I noted my frustration that these discussions too often elide important data suggesting that it is primarily gun-related crimes that are on the rise while other crimes may still be on the decline.  Again this backdrop, I found notable this new Vox piece by two data scientists headlined "One possible cause of the 2020 murder increase: More guns."  Here are excerpts:

It’s true that police activity, as measured by stops and arrests, declined significantly in 2020.  Still, despite that drop, and weeks before Floyd’s murder and the ensuing protests, police began finding firearms more often than in previous years.

This pattern does not support the idea that overwhelmed police forces weren’t able to take guns off the streets, leading to a surge in violence. Instead, the spike in firearms as a percentage of stops and arrests provides evidence that there were simply more guns on the streets throughout 2020 than in the past, which may have intensified other sources of violence and contributed to the historic rise in murders.  While there is no standardized, national open data on stops, information on police activity in 10 cities that we compiled points toward the same pattern....

The share of stops or arrests that resulted in a firearm being found increased in every city.  In Washington, DC, the share of all arrests that were weapons violations went from 5 percent in January to March 2020, to 7 percent in April and 9 percent in May.  The share of arrests for weapons possession went from 1 percent between January and March 2020 in Charleston, South Carolina, to 4 percent between April and December.  Almost every city followed the same pattern: a dramatic jump in the share of arrests or stops with a firearm in April and May, a decline in June, and a return to the earlier elevated levels for the remainder of the year.

The implication of this trend is that — assuming police did not suddenly become substantially better at identifying who has an illegal gun — firearm carrying increased at the beginning of the pandemic, well before the protests, and persisted at that level for the remainder of the year.  It is possible that in the midst of the pandemic, police started engaging in better-targeted stops that were more likely to yield arrests.  But finding other kinds of contraband, like drugs, did not become more frequent, only guns....

Police finding more firearms in stops and arrests does not fit with the idea that a decrease in proactive police activity targeting firearms was the major driver for 2020’s historic murder totals, though it certainly cannot be ruled out as a contributing factor....  The data all points to substantially more complex causes behind the rise in murder than the simple narrative of a change in policing as the sole or even main driver.  It is plausible, though, that the summer’s drops in stops and arrests, protests against police violence, and increases in gun violence are all symptoms of the same disease: what criminologists David Pyrooz, Justin Nix, and Scott Wolfe recently called a “legitimacy crisis in the criminal justice system,” the result of intensifying distrust in “the law and its gatekeepers” as a result of injustice....

The trend toward more firearms sales and more guns on the street seems to have continued into 2021.  Background checks accelerated even beyond last year’s peak in the first three months of this year.  And the latest data from these cities’ stops shows that police are finding as many guns as they did in the second half of 2020.

Early figures from many cities show murders have increased from last year’s baseline as well.  If the greater availability of firearms contributed to last year’s violence, the latest arrest data suggests it may contribute even more deaths to 2021’s murder total.

A few of many prior related posts:

June 14, 2021 in Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (3)

SCOTUS rules defendants must show plain error (and likely won't) when pressing Rehaif claims on appeal in felon-in-possession cases

The Supreme Court is busy clearing the criminal cases off its docket as the Term winds to a close; today first opinion is unanimously ruling in Greer v. US, No. 19–8709 (S. Ct. June 14, 2021) (available here), holding that "in felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon."  Here is a bit more explanatory context from Justice Kavanaugh's opinion for the Court:

Federal law prohibits the possession of firearms by certain categories of individuals, including by those who have been convicted of a crime punishable by more than one year in prison.  See 18 U.S.C. §§922(g), 924(a)(2).  In Rehaif v. United States, 588 U.S. ___ (2019), this Court clarified the mens rea requirement for firearms-possession offenses, including the felon-in-possession offense.  In felon-in-possession cases after Rehaif, the Government must prove not only that the defendant knew he possessed a firearm, but also that he knew he was a felon when he possessed the firearm.  See id., at ___ (slip op., at 11)....

In the two cases before us, all agree that Rehaif errors occurred during both defendants’ district court proceedings and that the errors were plain, thus satisfying the first two prongs of the plain-error test.  We address the third prong: whether the Rehaif errors affected the defendants’ “substantial rights.”  Greer has the burden of showing that, if the District Court had correctly instructed the jury on the mens rea element of a felon-in-possession offense, there is a “reasonable probability” that he would have been acquitted. Dominguez Benitez, 542 U.S., at 83.  And Gary has the burden of showing that, if the District Court had correctly advised him of the mens rea element of the offense, there is a “reasonable probability” that he would not have pled guilty.

In a felon-in-possession case where the defendant was in fact a felon when he possessed firearms, the defendant faces an uphill climb in trying to satisfy the substantial-rights prong of the plain-error test based on an argument that he did not know he was a felon.  The reason is simple: If a person is a felon, he ordinarily knows he is a felon.  “Felony status is simply not the kind of thing that one forgets.”  963 F. 3d 420, 423 (CA4 2020) (Wilkinson, J., concurring in denial of reh’g en banc).  That simple truth is not lost upon juries.  Thus, absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon.  A defendant considering whether to plead guilty would recognize as much and would likely factor that reality into the decision to plead guilty.  In short, if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a “reasonable probability” that, but for the Rehaif error, the outcome of the district court proceedings would have been different.

Of course, there may be cases in which a defendant who is a felon can make an adequate showing on appeal that he would have presented evidence in the district court that he did not in fact know he was a felon when he possessed firearms.  See Fed. Rule App. Proc. 10(e).  Indeed, at oral argument, the Government conceded that there are circumstances in which a defendant might make such a showing.  But if a defendant does not make such an argument or representation on appeal, the appellate court will have no reason to believe that the defendant would have presented such evidence to a jury, and thus no basis to conclude that there is a “reasonable probability” that the outcome would have been different absent the Rehaif error.

Justice Sotomayor authors the only separate opinion which largely concurs with the majority though calls for one of the cases to be sent back to the lower court.  She also explains that she wants to "highlight two limits on today’s decision":

First, the Court’s analysis in Greer’s case does not extend to the distinct context of harmless-error review, which applies when defendants contemporaneously object at trial. Second, the knowledge-of-status element is an element just like any other.  The Government must prove it beyond a reasonable doubt, and defendants seeking relief based on Rehaif errors bear only the usual burden on plain-error review. 

June 14, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, June 12, 2021

Senate Judiciary Committee advances three criminal justice and sentencing reform bills

I noted in this post last month that the US Senate Judiciary Committee had  plans to take three criminal justice bill: the First Step Implementation Act, the COVID-19 Safer Detention Act, and the Prohibiting Punishment of Acquitted Conduct Act.  This Law360 piece from a few weeks ago reported that, "on a 14-8 vote, the Senate Judiciary Committee passed the COVID-19 Safer Detention Act of 2021."  And the other bill moved forward this past week, as reported in this press release from Senator Grassley:

[T]he Senate Judiciary Committee voted to advance two bipartisan criminal justice reform bills authored by U.S. Senate Majority Whip Dick Durbin (D-Ill.), Chair of the Senate Judiciary Committee, and U.S. Senator Chuck Grassley (R-Iowa), Ranking Member of the Senate Judiciary Committee — the Prohibiting Punishment of Acquitted Conduct Act of 2021 and the First Step Implementation Act of 2021. These bills will build on the landmark First Step Act and continue Congress’s bipartisan efforts to make our criminal justice system fairer....

The bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2021 would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury.  Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.  The legislation was passed out of Committee by a bipartisan vote of 16-6.  More information on the Prohibiting Punishment of Acquitted Conduct Act of 2021 can be found here.
 
The bipartisan, bicameral First Step Implementation Act would advance the goals of the landmark First Step Act (FSA), by, among other provisions, making eligible for retroactive review some of the FSA’s sentencing reforms. The FSA — authored by Durbin and Grassley and signed into law in 2018 — is bipartisan criminal justice reform legislation designed to make our justice system fairer and our communities safer by reforming sentencing laws and providing opportunities for those who are incarcerated to prepare to reenter society successfully.  The First Step Implementation Act was passed out of Committee by a bipartisan vote of 13-9.  More information on how the First Step Implementation Act of 2021 would further the goals of the FSA can be found here.

I have little sense of whether or when these bills might move through Congress and get to the desk of the President, but I am hope that congressional leadership sees that these bill are worth prioritizing because they have more bipartisan support that almost any other proposals these days.

Some prior related posts:

June 12, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, June 10, 2021

In 5-4 decision, SCOTUS limits reach of ACCA mandatory minimum "violent felony" predicates by holding a "reckless offense cannot so qualify"

The last big SCOTUS sentencing ruling of this Term that I have been eagerly awaiting was (yet another) one concerning application of the Armed Career Criminal Act.  Today the wait was over, as this morning the Court handed down it opinion in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here).  And it is a big win for the defendant with Justice Kagan authoring the key opinion for four Justices (with Justices Breyer, Sotomayor and Gorsuch joining), which starts this way:

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), mandates a 15-year minimum sentence for persons found guilty of illegally possessing a gun who have three or more prior convictions for a “violent felony.”  The question here is whether a criminal offense can count as a “violent felony” if it requires only a mens rea of recklessness — a less culpable mental state than purpose or knowledge.  We hold that a reckless offense cannot so qualify.

Justice Thomas writes a concurring opinion that starts this way:

This case forces us to choose between aggravating a past error and committing a new one. I must choose the former.  Although I am “reluctant to magnify the burdens that our [erroneous] jurisprudence imposes,” Ring v. Arizona, 536 U.S. 584, 610 (2002) (Scalia, J., concurring), I conclude that the particular provision at issue here does not encompass petitioner’s conviction for reckless aggravated assault, even though the consequences of today’s judgment are at odds with the larger statutory scheme.  The need to make this choice is yet another consequence of the Court’s vagueness doctrine cases like Johnson v. United States, 576 U.S. 591 (2015).

Justice Kavanaugh writes a lengthy dissenting opinion (which is longer than the other two opinions combined) which concludes its opening discussion this way:

In my view, the Court’s decision disregards bedrock principles and longstanding terminology of criminal law, misconstrues ACCA’s text, and waves away the Court’s own recent precedent. The Court’s decision overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence. I respectfully dissent.

There is a lot here to take in, but I hope to figure all this out before too long. The key takeaway is that, thank to Justices Gorsuch and Thomas, Borden is the slimmest of victories for the defendant here and likely the start of yet another chapter of uncertainty about what comes next in ACCA jurisprudence.

June 10, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, June 08, 2021

"Exploring Alternative Approaches to Hate Crimes"

The title of this post is the title of this notable new lengthy report published today by the Brennan Center for Justice at NYU Law and Stanford Law School.  I received an email about the publication, which provided this overview:

Exploring Alternative Approaches to Hate Crimes” [is] a comprehensive report that assesses critiques of hate crime laws from communities of color and other targeted communities, and evaluates potential alternative approaches to respond to hate crimes more effectively.  The report addresses the harm hate crimes inflict and the limitations in keeping track of such crimes.  It finds that the current approach to hate crimes relies on increased law enforcement and imprisonment and that alternative responses centered on restorative justice and social services “may offer a way to identify and mend the unique individual and community harms caused by hate crimes, while demanding meaningful accountability for those who cause harm.”

“Our current hate crimes laws aim to recognize the profound harm to victims and their communities from crimes motivated by bias, but, as our report finds, they fall short in many ways,” said Stanford Law professor Shirin Sinnar, who along with Brennan Center Fellow Michael German, guided the policy practicum, Assessing Alternative Approaches to Hate Crimes, that compiled the report.  “Our goal with this report was to evaluate the traditional hate crime legal model, which focuses on increasing imprisonment for crimes with a proven bias motive, and explore the different approaches that local communities are now trying to counteract the injuries hate crimes inflict.”

“Hate crimes clearly remain a serious problem affecting uncounted individuals and communities across the U.S., and the law enforcement-centric approach we've employed over the last several decades has not provided satisfactory outcomes, or properly accounted for the harms,” said German.

New York City, Oakland, Calif., and other communities across the country have been trying some of the alternatives covered in Exploring Alternative Approaches to Hate Crimes. The report calls for greater investments in such programs to allow communities to experiment with methodologies that might more effectively mitigate the harms from hate crimes.

The report, put together by Stanford Law School students enrolled in the policy practicum, drew on findings from a March 2020 convening at Stanford Law School of experts in the fields of criminal law, civil rights, community advocacy and restorative justice. It also includes research from law, criminology, and other fields.  For the report, the Stanford Law School policy lab defined a “hate crime” as a criminal offense motivated by hostility against certain actual or perceived characteristics of a victim’s identity, including race or ethnicity, religion, gender, national origin, and sexual orientation, among others.

Most states and the federal government have enacted laws that create “stand-alone” offenses or impose sentence enhancements for crimes with a bias motive.  But in recent years, some community groups and racial justice advocates have questioned whether this approach relies too heavily on carceral solutions, especially through sentence enhancements, and whether current solutions sufficiently respond to the unique individual and community harms of hate crimes....

The report assessed restorative justice programs for hate crimes and social services programs for individuals and communities that are increasingly piloted across the country, both as substitutes for, or to exist alongside, the traditional legal approach.  The report found that, while challenging questions remain as to program design, restorative justice programs may offer a promising alternative to the traditional law enforcement approach to hate crimes.  It notes that “these programs should be subjected to rigorous study, to ensure they are implemented with the necessary attention to the constitutional rights of accused parties and the safety and well-being of impacted individuals and communities.

The report also found that support for social services and grant programs can be established, retooled, and better staffed and funded to ensure that individuals and communities affected by hate crimes receive adequate, culturally competent resources.  “Our work details alternative approaches that impacted communities are beginning to explore, which are designed to repair more directly the harms bias-motivated crimes inflict,” said German.  “We hope this report becomes a resource for communities looking for more effective methods of responding to hate crimes."

June 8, 2021 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Thursday, June 03, 2021

In 6-3 opinion for (police officer) defendant, SCOTUS limits reach of federal Computer Fraud and Abuse Act

The Supreme Court issued one opinion this morning, and it is an interesting criminal law decision with an interesting divide of Justices limiting the reach of a notable federal criminal statute.  The majority opinion in Van Buren v. US, No. 19–783 (S. Ct. June 3, 2021) (available here), is authored by Justice Barrett and it starts and ends this way:  

Nathan Van Buren, a former police sergeant, ran a license-plate search in a law enforcement computer database in exchange for money.  Van Buren’s conduct plainly flouted his department’s policy, which authorized him to obtain database information only for law enforcement purposes.  We must decide whether Van Buren also violated the Computer Fraud and Abuse Act of 1986 (CFAA), which makes it illegal “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”

He did not.  This provision covers those who obtain information from particular areas in the computer — such as files, folders, or databases — to which their computer access does not extend.  It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them....

In sum, an individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of the computer —  such as files, folders, or databases — that are off limits to him.  The parties agree that Van Buren accessed the law enforcement database system with authorization. The only question is whether Van Buren could use the system to retrieve license-plate information. Both sides agree that he could.  Van Buren accordingly did not “excee[d] authorized access” to the database, as the CFAA defines that phrase, even though he obtained information from the database for an improper purpose.  We therefore reverse the contrary judgment of the Eleventh Circuit and remand the case for further proceedings consistent with this opinion.

Justice Thomas authored a dissent joined by the Chief Justice and Justice Alito. It starts this way:

Both the common law and statutory law have long punished those who exceed the scope of consent when using property that belongs to others.  A valet, for example, may take possession of a person’s car to park it, but he cannot take it for a joyride.  The Computer Fraud and Abuse Act extends that principle to computers and information.  The Act prohibits exceeding the scope of consent when using a computer that belongs to another person.  Specifically, it punishes anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains” information from that computer. 18 U.S.C. §1030(a)(2).

As a police officer, Nathan Van Buren had permission to retrieve license-plate information from a government database, but only for law enforcement purposes.  Van Buren disregarded this limitation when, in exchange for several thousand dollars, he used the database in an attempt to unmask a potential undercover officer.

The question here is straightforward: Would an ordinary reader of the English language understand Van Buren to have “exceed[ed] authorized access” to the database when he used it under circumstances that were expressly forbidden? In my view, the answer is yes.  The necessary precondition that permitted him to obtain that data was absent.

The Court does not dispute that the phrase “exceeds authorized access” readily encompasses Van Buren’s conduct. It notes, instead, that the statute includes a definition for that phrase and that “we must follow that definition, even if it varies from a term’s ordinary meaning.”  Tanzin v. Tanvir, 592 U.S. ___, ___ (2020) (slip op., at 3) (internal quotation marks omitted). The problem for the majority view, however, is that the text, ordinary principles of property law, and statutory history establish that the definitional provision is quite consistent with the term it defines.

I am pretty sure that this is the first (non-unanimous) opinion in which all the Trump-appointed Justices joined with all the Justices appointed by Democratic presidents, and I am very sure that I am hopeful that this will not be the only case in which these Justices combine to limit the application of questionable criminal laws and doctrines. Interesting times.

UPDATE:  I see Kent Scheidegger at Crime & Consequences has this age-related take on the alliances of the Justices in this Van Buren:

For those who like to categorize Justices and tally statistics, it may (or may not) be noteworthy that the six Justices appointed by Republican Presidents split by age, with the three younger ones supporting the narrower interpretation of this criminal law. There is perhaps a more libertarian streak in the more junior Justices and more wariness of overcriminalization.

June 3, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Wednesday, June 02, 2021

Second Capitol rioter reaches plea deal with reported guideline range of 15 to 21 months in prison

As reported in this Politico piece, a "38-year-old man from Tampa, Fla., on Wednesday became only the second defendant charged in relation to the Jan. 6 Capitol riot to plead guilty to obstructing Congress’ certification of the 2020 election results — an agreement that could shed light on the government’s strategy for prosecuting the hundreds of other alleged perpetrators of the insurrection." Here is more:

In a virtual plea hearing before the U.S. District Court for the District of Columbia, prosecutors told Judge Randolph Moss they would drop the four misdemeanor charges against Paul Allard Hodgkins in exchange for the defendant’s guilty plea on the obstruction charge, his only felony count, which carries a statutory maximum penalty of up to 20 years in prison.

However, defendants are typically sentenced in accordance with federal sentencing guidelines, and in most cases — especially for defendants with little or no criminal record — those standards call for sentences far shorter than the maximum. Hodgkins, who has no prior criminal convictions, is tentatively scheduled to be sentenced on July 19.

On Wednesday, attorneys for both the defense and the prosecution said the guidelines were likely to call for a 15- to 21-month sentence for Hodgkins. Moss would ultimately be free to impose a shorter or longer sentence, and Hodgkins’ attorney said he would likely argue for less time behind bars for his client.

The guidelines also call for a fine of between $7,500 and $75,000 for the obstruction charge — in addition to the $2,000 in restitution Moss said had been calculated as Hodgkins’ share of the roughly $1.5 million worth of damage done to the Capitol during the riot.

Although more than 450 people have been charged in relation to the storming of the Capitol, the only other defendant to accept a plea deal was Jon Schaffer, a 52-year-old man from Columbus, Ind., who pleaded guilty last month to two counts: obstruction of Congress and entering a Secret Service-restricted area with a deadly or dangerous weapon....

It is not clear, however, what information Hodgkins could offer prosecutors as part of his plea deal, and there was no discussion at the hearing about a cooperation aspect to his agreement. But taken together, Schaffer and Hodgkins’ pleas seemingly indicate that prosecutors will likely insist on a felony obstruction plea as the minimum plea deal for many defendants.

This official DOJ press release, headed "Man Pleads Guilty to Obstruction of an Official Proceeding for Breaching U.S. Capitol on Jan. 6," provides some more details about the defendant's offense conduct:

According to court documents, Paul Hodgkins, 38, of Tampa, Florida, entered the U.S. Capitol building at approximately 2:50 p.m. on Jan. 6. Around 3 p.m., Hodgkins entered the Senate chamber, walked among the desks, and then removed eye goggles. He took a “selfie-style” photograph with his cell phone and walked down the Senate well where, a few feet away, several individuals were shouting, praying and cheering using a bullhorn. Hodgkins walked toward the individuals and remained standing with them while they continued commanding the attention of others. At approximately 3:15 p.m., Hodgkins exited the Senate chamber and the U.S. Capitol Building.

Prior related posts:

June 2, 2021 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (1)

In latest sentencing filings, Derek Chauvin requests probation while prosecutors ask for him to get 30 years in prison

As detailed in this CBS News piece, the parties in the case of Minnesota v. Chauvin are making very different sentencing requests:

Derek Chauvin asked a judge to sentence him to a term of probation or a shorter prison term than suggested by Minnesota guidelines in a sentencing memorandum filed Wednesday.  The memo cites Chauvin's lack of previous criminal history, his previous work as a police officer and the risk he could be victimized in prison as factors the judge should consider as he weighs a sentence.

But in another memorandum filed Wednesday, prosecutors asked for a sentence of 30 years for the convicted former Minneapolis officer, a term they said would "properly account for the profound impact of [Chauvin's] conduct on the victim, the victim's family, and the community."...

Last month, Judge Peter Cahill found "aggravating factors" exist that allow for him to sentence Chauvin to a term longer than the suggested 15 years. Cahill agreed with prosecutors that four such factors exist: that Chauvin committed a crime in front of a child, that Chauvin acted with particular cruelty, that he acted as part of a group, and that he abused his position of trust and authority as a police officer.  Cahill found that Chauvin acted with particular cruelty because he killed Floyd slowly despite Floyd's pleas that he couldn't breathe.  Floyd was "begging for his life and obviously terrified by the knowledge that he was likely to die" but Chauvin "objectively remained indifferent to Floyd's pleas," Cahill wrote.

Wednesday, prosecutors said the aggravating factors support their recommendation of double the 15-year upper end of the sentencing range, or 30 years.  Chauvin, they said, "brutally murdered Mr. Floyd, abusing the authority conferred by his badge."  "His actions traumatized Mr. Floyd's family, the bystanders who watched Mr. Floyd die, and the community. And his conduct shocked the Nation's conscience," the prosecution's memo read. "No sentence can undo the damage [Chauvin's] actions have inflicted.  But the sentence the Court imposes must hold [Chauvin] fully accountable for his reprehensible conduct."

But in the defense memo, Chauvin's attorney Eric Nelson asked Cahill to discount his finding that aggravating factors apply, and rule instead that mitigating factors allow either for a term of probation or a shorter sentence than guidelines suggest.  Nelson asked the judge to "look beyond" his findings to Chauvin's "background, his lack of criminal history, his amenability to probation, to the unusual facts of this case, and to his being a product of a 'broken' system."

Nelson said that Chauvin has been "painted as a dangerous man," but argued that "behind the politics, Mr. Chauvin is still a human being."  He cited Chauvin's 19-year history with the Minneapolis police department, several on-the-job commendations and the support of his family and friends.  "In spite of his mistakes, Mr. Chauvin has demonstrated that he has a capacity for good and that he has the discipline to consistently work toward worthwhile goals," the memo reads.

The defense memo says Chauvin, 44, has been diagnosed with heart damage and that he may be likely to die at a younger age like other ex-law enforcement officers.  It also says Chauvin may be more likely to be victimized in prison because he was convicted as a police officer, pointing to the fact that he is being segregated from the general prison population before his sentencing over safety concerns.  It also says Chauvin has no previous criminal convictions and complied with pre-trial release conditions and court procedures. "Throughout these proceedings, and in the face of unparalleled public scorn and scrutiny, Mr. Chauvin has been very respectful to the judicial process, the Court, and the State," the memo said.

These new sentencing filings are available at these links:

Prior related posts:

June 2, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (7)

Fascinating split Third Circuit ruling on federal drug distribution prohibition (and death resulting 20-year mandatory minimum)

A helpful colleague made sure I did not miss yesterday's notable new ruling from a Third Circuit panel in US v. Semler, No. 19-2319 (3d Cir. Jun. 1, 2021) (available here). This split (non-precedential?) decision address the persistently problematic issue of when and how social sharing of drugs constitutes distribution and all of the potentially severe consequences that can follow.  Here is how the majority opinion authored by Judge Roth gets started: 

Emma Semler is an addict who bought and injected heroin with a fellow user, then failed to intervene as that user overdosed and died.  She now appeals her conviction and sentence under the Controlled Substances Act for distribution of heroin resulting in death, a charge that carries a mandatory minimum sentence of twenty years’ imprisonment.

We hold that the definition of “distribute” under the Controlled Substances Act does not cover individuals who jointly and simultaneously acquire possession of a small amount of a controlled substance solely for their personal use.  Because a reasonable jury could find that Semler and the decedent jointly acquired possession of the heroin in question for their personal use, we will vacate Semler’s conviction and remand this case for a new trial so that the jury can be instructed on the correct legal standard.

The dissent authored by Judge Porter starts this way:

The Controlled Substances Act prohibits the distribution of certain drugs.  In that statute, Congress carefully defined the meaning of “distribute.”  Dissatisfied with the breadth of Congress’s handiwork, the majority vacates Emma Semler’s judgment of conviction.  It holds that Semler did not “actually transfer” heroin when she handed it to Jennifer Werstler.  Because that “is flatly contrary to standard English usage” and contradicts our Court’s precedent, I respectfully dissent.  Kansas v. Garcia, 140 S. Ct. 791, 802 (2020).

A few prior posts on drug-causing-death prosecutions and punishments:

June 2, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Saturday, May 29, 2021

"Mala Prohibita and Proportionality"

The title of this post is the title of this paper authored by Youngjae Lee recently posted to SSRN.  Here is its abstract:

What is the proportionate punishment for conduct that is neither harmful nor wrongful?  A likely response to that is that one ought not to be punished at all for such conduct. It is, however, common for the state to punish harmless conduct the wrongfulness of which is not always apparent.  Take, for example, the requirement that those who give investment advice for compensation do so only after registering as an investment advisor.  Advising a person on how to invest his or her funds and accepting a fee for the advice without registering with the government does not seem harmful or wrongful, so long as no fraud is involved, the relevant parties understand the relevant risks, and so on.  But practicing investment advising without registering is a crime for which one may be convicted and punished.

When one thinks of crimes, paradigmatic offenses are crimes like murder, rape, and robbery, but offenses like failure to register as an investment advisor are different.  But in what way?  One standard explanation is the distinction between two types of offenses, malum in se and malum prohibitum.  Some offenses, like murder, are wrongs “in themselves” (“in se”) whereas other offenses, like investment advising without registering as an advisor, are wrongs because they have been prohibited (“prohibitum”).  The question this Essay asks is how we should think about proportionality of punishment when punishing such mala prohibita offenses.  This Essay presents a framework for such proportionality determinations and raises some challenges such a framework would need to confront.

May 29, 2021 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Wednesday, May 26, 2021

AG Garland announces new(?) federal effort to reduce violent crime

This new press release and this new detailed guidance from the Deputy AG sets forth the particulars of "a new Department of Justice effort to help protect our communities from the recent increase in major violent crimes."  I am not really sure there is actually much that is really new here, but the focus and framing (and future follow up) is interesting to see coming from our new Attorney General as the US continues to experience an uptick in homicides and gun assaults.  Here is part of the press release:

The strategy announced today is three-pronged. First, it establishes a set of four fundamental principles to be applied Department-wide to guide violent crime reduction:

  1. Build trust and earn legitimacy. Meaningful law enforcement engagement with, and accountability to, the community are essential underpinnings of any effective strategy to address violent crime, as well as important ends in themselves. Accordingly, building trust and earning legitimacy within our communities is the foundation on which the strategy is built. 
  2. Invest in prevention and intervention programs. Violent crime is not a problem that can be solved by law enforcement alone. Accordingly, the Department must invest in community-based violence prevention and intervention programs that work to keep violence from happening before it occurs.
  3. Target enforcement efforts and priorities. The Department is most effective when it focuses its limited enforcement resources on identifying, investigating, and prosecuting the most significant drivers of gun violence and other violent crime.
  4. Measure results. Because the fundamental goal of this work is to reduce the level of violence in our communities, not to increase the number of arrests or prosecutions as if they were ends in themselves—we must measure the results of our efforts on these grounds.

I did not see anything in these materials concerning sentencing policies or practices, though all federal prosecutorial priorities and plans necessarily ripple into sentencing advocacy and outcomes in some way. 

May 26, 2021 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

Monday, May 24, 2021

"Objective Punishment"

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

The article addresses the question whether the punishment, besides fitting the crime, should also fit the criminal.  A widely accepted principle of proportionality declares the worse the crime, the worse the punishment.  But how should punishment severity be measured? 

Specifically, when the severity of a punishment is being evaluated for the purpose of fitting the crime, should idiosyncratic features of the offender be taken into account?  Should a person suffering from claustrophobia get a shorter sentence because incarceration will be harder on him?  Should being assaulted while incarcerated result in a shorter sentence because the actual incarceration was more harsh than expected?  Should the foreseeable consequences of incarceration — losing a particularly high paying job or getting badly desired publicity — be considered in sentencing?

The article argues, contrary to some recent scholarship, for an “objective theory” of punishment, according to which such idiosyncratic features of offenders are irrelevant to the determination of the punishment deserved, but may be considered as part of multi-valued scheme for managing social resources generally.

May 24, 2021 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, May 14, 2021

Split Mississippi appellate court upholds, against Eighth Amendment challenge, an LWOP habitual-offender sentence for marijuana possession

As report in this AP piece, the "Mississippi Court of Appeals on Tuesday upheld a life sentence for a man convicted of a marijuana possession charge because he had previous convictions and those made him a habitual offender." Here is bit more about the ruling from the AP:

Allen Russell, 38, was sentenced to life in Forrest County in 2019 after a jury found him guilty of possession of more than 30 grams (1.05 ounces) of marijuana.

In Mississippi, a person can be sentenced to life without parole after serving at least one year in prison on two separate felonies, one of which must be a violent offense. Russell was convicted on two home burglaries in 2004 and for unlawful possession of a firearm in 2015. By law, burglary is a violent offense in Mississippi, whether or not there is proof that violence occurred. That was not the case when Russell was sentenced for home burglary in 2004. Then, burglary was only considered a violent crime if there was proof of violence. The law changed in 2014.

In his appeal, Russell argued that a life sentence constitutes “cruel and unusual punishment and is grossly disproportionate” to his crime of marijuana possession. The Court of Appeals disagreed in its majority opinion, stating that Russell’s life sentence is in accordance with Mississippi law. Russell is not being sentenced solely for having marijuana, but for being a habitual offender, the judges said.

But several dissenting judges argued that the court can — and should — make exceptions. “The purpose of the criminal justice system is to punish those who break the law, deter them from making similar mistakes, and give them the opportunity to become productive members of society,” Judge Latrice Westbrooks wrote. “The fact that judges are not routinely given the ability to exercise discretion in sentencing all habitual offenders is completely at odds with this goal.”

The full opinions in Russell v. Mississippi, NO. 2019-KA-01670-COA (Miss. Ct. App. May 11, 2021), are available here.  Here is the start and another part of the majority opinion:

A Forrest County jury found Allen Russell guilty of possession of marijuana in an amount greater than 30 grams but less than 250 grams. The Forrest County Circuit Court sentenced Russell as a violent habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for probation or parole. On appeal from the circuit court’s judgment, Russell argues that his sentence constitutes cruel and unusual punishment and is grossly disproportionate to his felony conviction. Finding no error, we affirm....

Here, the State’s evidence established that Russell had two prior separate felony convictions for burglary of a dwelling, for which he was sentenced to and served over one year in MDOC’s custody on each conviction.  The State also presented evidence that Russell was later convicted of possession of a firearm by a felon and sentenced to ten years with eight years suspended and two years to serve, followed by five years of post-release supervision.  Based on such evidence, the circuit court justifiably found Russell to be a violent habitual offender under section 99-19-83 and sentenced him to life imprisonment in MDOC’s custody without eligibility for probation or parole.  Because Russell has failed to prove the threshold requirement of gross disproportionality, and because his habitual-offender sentence fell within the statutory guidelines, we conclude that his sentence constituted “a constitutionally permissible punishment for his most recent crime . . . .” Miller, 225 So. 3d at 16 (¶17). We therefore find this issue lacks merit.

One of the dissents begins this way:

In Solem v. Helm, 466 U.S. 277 (1983), the United States Supreme Court held that a life without parole sentence for a recidivist criminal convicted of a relatively low-level felony violated the Eighth Amendment. In terms of the gravity of his present offense and the extent and seriousness of his criminal history, I cannot draw any material distinction between Allen Russell and the defendant in Solem. Thus, I conclude that we are bound under Solem to vacate Russell’s life without parole sentence. Accordingly, I respectfully dissent

Because I was stunned to see an LWOP sentence for marijuana possession and due to the description in the opinion concerning how the defendant was found in possession of marijuana, I did a little bit of extra research about Allen Russell.  Though not mentioned in this appellate ruling, this local article from late 2017 reports that Russell was being arrested on murder charges at the time he was found to be in possession of marijuana.  Though I could find no report of Russell being convicted of (or even tried on) a homicide charge, I am inclined to suspect that this background may have played at least some role in how Russell was initially charged by prosecutors and ultimately sentenced for his marijuana possession.

I presume that this case will now be appealed to the Mississippi Supreme Court and perhaps the US Supreme Court if the Mississippi courts continuing to uphold this extreme sentence. I would think that, if the Eighth Amendment is to place any limit at all the length of prison sentences imposed on adult offenders, an LWOP sentence for possessing a small amount of marijuana ought to be subject to very serious scrutiny.  And yet, SCOTUS has a history of upholding extreme recidivism-based sentences (Ewing v. California, 538 U.S. 11 (2003), being the most recent example), and so the past and present work of the Supreme Court in this arena should not provide much basis for Russell to be especially optimistic regarding further appeals.

May 14, 2021 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, May 10, 2021

"Constraining Criminal Laws"

The title of this post is the title of this notable new article authored by F. Andrew Hessick and Carissa Byrne Hessick now available via SSRN. Here is its abstract:

Most criminal law is statutory.  Although the violation of criminal statutes can result in significantly more serious consequences than violations of other types of statutes, the dominant theories of statutory interpretation do not distinguish between criminal statutes and non-criminal statutes.  They say that, when interpreting statutes, courts should always be faithful agents aiming to implement the will of the legislature, and that task does not change depending on whether the statute is criminal

This Article shows that treating the interpretation of criminal statutes the same way as other statutes is a major departure from the past.  Historically, courts did not simply try to implement the will of the legislature in interpreting criminal statutes; instead, they played a more active role, adopting a package of interpretive rules that constrained the criminal law.  The Article argues that courts should once again adopt this historical approach to interpreting criminal statutes in order to reestablish the judiciary as an important check on overly broad criminal laws, promote democratic accountability, and foster important principles of notice and predictability.

May 10, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, May 07, 2021

"Life 'With' or 'Without'?: An Empirical Study of Homicide Sentencing"

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

The number of Americans serving sentences of life without the possibility of parole (“LWOP”) has grown rapidly over the past generation and now exceeds 50,000.  Yet, little empirical research has been conducted on the determinants of LWOP sentences.  The dearth of research on LWOP sentencing stands in sharp contrast to the many dozens of studies that have been conducted on the determinants of death sentences — studies that have consistently found that race, gender, and other questionable factors may influence sentencing outcomes.  The present study is the first to employ a similar methodology to identify both case- and county-level variables that are correlated with the imposition of discretionary LWOP sentences.

More specifically, we have assessed the relationship between fifty different variables and LWOP decisions in 450 homicide cases in Wisconsin between 2001 and 2018.  In our final model, we find seven variables that are correlated with sentencing outcomes.  Of particular note, we find that judge and prosecutor personal characteristics are statistically significant correlates of LWOP decisions.  We also find a significantly greater likelihood that LWOP sentences will be imposed in counties that are more Republican.  We conclude with a proposal for a new LWOP sentencing process that may help to ensure that this very severe sentence is reserved for the most serious crimes committed by the most dangerous defendants.

May 7, 2021 in Offense Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, May 06, 2021

Covering some interesting developments in some Capitol riot prosecutions

I have previously noted that the high-profile Capitol riot prosecutions provide an interesting lens on how a set of distinctive cases work their way through the federal criminal justice system.  And today I noticed a bunch of recent press pieces with interesting accounts of certain parts of this federal case processing story for certain defendants.  Here are links and headlines:

From BuzzFeed News, "They Said Trump Told Them To Attack The Capitol. Judges Are Keeping Them In Jail Anyway."

From CNN, "Justice Department preps plea deals for rioters from viral video of cops trapped in Capitol tunnel"

From Law & Crime, "Federal Appeals Court Upholds Decision to Keep Proud Boy Behind Bars Ahead of Trial for Pepper Spraying Police"

From NBC News, "FBI still after 'worst of the worst' in Capitol riot as new arrests come at steady pace"

From the New York Times, "‘There Was a Big Battle in Here’: Lawyers Tour Capitol as a Crime Scene"

Prior related posts:

May 6, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Sunday, May 02, 2021

Another effective (but still incomplete) look at possible sentencing outcomes for those prosecuted for Capitol riot

This new AP article, headlined "Charged in Jan. 6 riot? Yes, but prison may be another story," reviews potental sentencing outcomes for their role in the January 6 Capitol riot.  Here are some excerpts, to be followed by a bit of contextual commentary:

More than 400 people have been charged with federal crimes in the Jan. 6 attack on the Capitol.  But prison time may be another story.

With new defendants still flooding into Washington’s federal court, the Justice Department is under pressure to quickly resolve the least serious of cases.  While defendants charged with crimes such as conspiracy and assaulting officers during the insurrection could be looking at hefty sentences, some members of the mob who weren’t caught joining in the violence or destruction could see little to no time behind bars.

“The people who were just there for the ride and somewhat clueless, I think for most of them they probably will not get prison time. And for what it’s worth, I think that’s appropriate,” said Rachel Barkow, a professor at the New York University School of Law. “Having a misdemeanor on their record, going through all this is probably a pretty big wake-up call for most of the folks,” she said.

The siege was like nothing the country had ever seen, as the mob of supporters of then-President Donald Trump descended on the Capitol to stop the congressional certification of Joe Biden’s election victory.  But in the months since, Trump loyalists have worked to minimize the assault, while Democrats and others want justice for what they saw as a crime against democracy and the rule of law....

It’s a formidable task for lawyers and judges alike to determine the appropriate punishment to seek and hand down. Many defendants had steady jobs and no criminal records, factors typically rewarded with leniency in the criminal justice system.  As plea negotiations ramp up, the Justice Department must work to differentiate between the varying actions of the members of the mob that day without making it seem like some are getting away with mere slaps on the wrist....

Of the more than 400 federal defendants so far, at least 100 are facing only lower-level crimes such as disorderly conduct and entering a restricted area that do not typically result in time behind bars for first-time offenders.  Hundreds more were also charged with more serious offenses — like conspiracy, assault or obstruction of an official proceeding — that carry hefty prison time of years behind bars, but theses defendants could take pleas that would wipe those charges from their cases. Prosecutors have said they expect to charge at least 100 more people.

It’s going to be a test of racial fairness. The majority of the defendants are white.  Black and Latino defendants tend to face harsher sentences for the same crimes, and from the moment the mob marched on the Capitol, there were questions about whether the law enforcement response would have been different had the rioters been people of color....

If prosecutors seek stiff sentences for the lowest level Capitol riot defendants, they could lose their credibility with judges, said Laurie Levenson, a former federal prosecutor who now teaches at Loyola Law School.  And if they set the standard too high, they’ll be juggling hundreds of cases going to trial instead of focusing on the major offenders. Those most serious cases are where prosecutors can and should send a strong message, Levenson said. “If there’s any pressure on the Justice Department, it’s to deal with these cases in a way so that you never have to see them again,” she said. “And if people think that the price isn’t too high, who knows?”

At least one judge has expressed frustration at the pace of the prosecutions, which have overwhelmed the federal court already backlogged because of pandemic-related delays. On Tuesday, U.S. District Judge Christopher Cooper ordered the pretrial release of a man who was photographed sitting with his feet on a desk in House Speaker Nancy Pelosi’s office. The judge expressed concern that the case is moving too slowly.

Cooper noted that Richard Barnett has been jailed for nearly four months and questioned whether his time behind bars while the case is ongoing could exceed a possible sentence should Barnett plead guilty. The prosecutor estimated that the government would recommend a prison term ranging from nearly six years to 7 1/4 years if Barnett is convicted, though he could get credit for accepting responsibility if he pleads guilty.

All high-profile prosecutions, particularly when they involve persons without significant criminal histories, provide interesting settings to explore sentencing purposes and practices. These Capitol riot prosecutions have the added political intrigue of having those who usually advocate for harsher forms of justice likely being much more sympathetic to these defendants, while at least some usually most troubled by harsh sentencing may be more supportive of prison terms this unique setting.  And, as this AP article rightly notes, there overarching surely concerns about racial and social equity in light of historic patterns of prosecution and sentencing practices.

But the equity issue leaves me eager to see more comprehensive and consistent coverage of punishments being handed out to others involved in criminal behavior during other protests through 2020.  For example, consider these sentencing reports from local press in recent weeks:

I am certain that this is NOT anything close to a thorough accounting of the sentences that have been already handed down to persons who have engaged in criminal activity during protests and riots (e.g., here is a press report from Dec 2020 of a few case outcomes in Oregon).  I am even more certain that it could provide incredibly valuable for ultimately examining and assessing Capitol riot outcomes to have some kind of thorough overview of outcomes in these other (similar?) cases.   

Prior related posts:

May 2, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (8)

Saturday, May 01, 2021

"Obstruction of Justice: Redesigning the Shortcut"

The title of this post is the title of this new paper authored by Ellen Podgor just published in the BYU Law Review and now available at this link. Here is its abstract:

When one looks to accomplish consistency and predictability in the criminal justice system — important goals tied to achieving deterrence — the architecture of obstruction of justice remains important.  It is insufficient to suggest that we have consistency in sentencing by using federal sentencing guidelines, when the charging process is undermined by its failure to provide uniformity.  Achieving a consistent charging framework for federal obstruction of justice needs to be individualized, remain true to the contextual setting, and provide consideration for the specific processes of a trial, sentencing, or impeachment.  But it also needs to have a structure that is not rearranged dependent upon the Attorney General, United States Attorney, the politics of the time, or varying interpretations of government officials.

This Article examines obstruction of justice in the federal system, looking at it in three different contexts: as a criminal offense, as a sentencing enhancement, and as a basis for a judicial or presidential impeachment.  It provides a comprehensive picture of the elements of obstruction of justice crimes, the challenges brought to courts, and the constituencies handling these matters.  It focuses on the prosecutorial practices in bringing obstruction charges in federal court including its use as a "short-cut" offense that is easily proved in some contexts, while noting the difference in other arenas, such as impeachment inquiries.  Like its practice regarding false statements and perjury, and unlike that for corporate criminal liability, the Department of Justice offers little internal guidance when selecting obstruction of justice crimes as the basis for a criminal prosecution.  The actual practice, as recently seen in the differing view of Special Counsel Robert Mueller and Attorney General William Barr in examining the allegations of obstruction conduct by President Donald Trump — outlined in the Mueller Report — highlights the inconsistency in this area of the law.  This Article provides an empirical and diagnostic lens to study the law and practice of whether federal obstruction of justice crimes require an underlying criminal offense or, alternatively can be prosecuted as a sole charge or in conjunction with other shortcut offenses such as false statements and perjury.

May 1, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, April 30, 2021

Counsel file initial sentencing briefs on "Blakely factors" in preparation for Derek Chauvin's sentencing

As reported in this local article, headlined "Prosecutors seek aggravated sentence against Derek Chauvin, argue George Floyd was ‘treated with particular cruelty’," the sentencing phase of the prosecution of the former police office convicted of killing George Floyd is now at the first briefing stage.  Here are the basics:

Prosecutors asked a judge Friday to give Derek Chauvin a longer prison sentence for killing George Floyd, arguing that the crime was particularly cruel....

Chauvin will be sentenced on June 25. Minnesota sentencing guidelines suggest that an individual without any prior criminal history should be sentenced to 12.5 years in prison for second-degree murder. However, prosecutors have signaled their intent for months to seek an aggravated sentence against Chauvin.

If Hennepin County Judge Peter Cahill grants the prosecution’s request, Chauvin could face a maximum of 30 years in prison.

Prosecutor Matthew Frank argued in a 26-page memorandum that an aggravated sentence is warranted because Floyd was a “particularly vulnerable victim” and “treated with particular cruelty.” Frank also said Chauvin “abused his position of authority,” committed the crime with three or more others and in front of children.

Chauvin’s attorney Eric Nelson filed a 10-page memorandum Friday opposing the prosecution’s ask, arguing against each of their five points. Nelson wrote that Floyd being handcuffed did not make him “particularly vulnerable.” Nelson pointed to how Floyd was over 6 feet tall and weighed more than 200 pounds and said he was resisting arrest.

Here are links to these new filings with their opening paragraphs:

State's Memorandum of Law In Support of Blakely Aggravated Sentencing Factors

The State respectfully requests an aggravated sentence for Defendant Derek Chauvin, a former police officer convicted of second-degree murder, third-degree murder, and second-degree manslaughter in connection with the death of George Floyd.  See Blakely v. Washington, 542 U.S. 296 (2004); Minn. Stat. § 244.10; Minn. R. Crim. P. 7.03.  The facts proven beyond a reasonable doubt at trial demonstrate that five aggravating factors support an upward sentencing departure.

Defendant's Memorandum of Law Opposing Upward Durational Departure

On April 20, 2021, a jury convicted Defendant Derek Michael Chauvin of all three counts alleged in the Complaint against him in connection with the death of George Floyd: unintentional second-degree murder, third-degree murder, and second-degree manslaughter.  The State has moved for an upward sentencing departure, alleging that facts support five different reasons for which the Court may impose an aggravated sentence.  Mr. Chauvin, through his attorney Eric J. Nelson, Halberg Criminal Defense, submits the following in opposition to an upward durational sentencing departure.

April 30, 2021 in Blakely in the States, Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Saturday, April 24, 2021

Third Circuit panel explores curious loss calculations in federal fraud guidelines

A helpful reader made sure I did not miss the interesting Third Circuit panel ruling this past week in US v. Kirschner, No. 20-1304 (3d Cir. April 22, 2021) (available here), discussing loss calculations under the fraud guidelines. There are lots of element to the Kirschner opinion, but the introduction provides an effective overview:

In 2018, Jonathan Kirschner pleaded guilty to one count of impersonating an officer acting under the authority of the United States and one count of importing counterfeit coins and bars with intent to defraud.  At sentencing, the District Court applied to Kirschner’s sentence three enhancements pursuant to the U.S. Sentencing Guidelines — a 2-level enhancement because Kirschner’s fraud used sophisticated means; another 2-level enhancement because Kirschner abused a position of public trust to facilitate his crimes; and a 22-level enhancement because the “loss” attributable to his scheme was greater than $25 million but less than $65 million, even though it grossed only about one one-thousandth of that.

Kirschner appeals the District Court’s judgment of sentence and challenges the three enhancements it applied.  For the reasons that follow, we will vacate Kirschner’s sentence and remand for resentencing.  While the District Court was well within its discretion to apply the abuse-of-trust and use-of-sophisticated-means enhancements, we conclude it clearly erred in applying the 22-level enhancement for loss, and we cannot say that the error was harmless.

I have always thought the federal fraud guideline deeply misguided due to commentary basing offense severity calculations on the greater of intended or actual loss (and the guideline is also deeply problematic for placing extreme emphasis on "loss" and by only requiring proof by a preponderance).  In this case, a focus on intended loss meant a guy who netted only about $30,000 selling fake goods when caught was sentenced as if he had netted $36 million! 

Ultimately, the panel here concluded intended loss was not subject to the "deeper analysis" needed to justify the district court's calculation.  But, for those following broader debates over the basic validity of guideline commentary, the panel had this interesting aside:

Under a Guidelines comment, a court must ... identify the greater figure, the actual or intended loss, and enhance the defendant’s offense level accordingly.  Only this comment, not the Guidelines’ text, says that defendants can be sentenced based on the losses they intended.  By interpreting “loss” to mean intended loss, it is possible that the commentary “sweeps more broadly than the plain text of the Guideline.”  United States v. Nasir, 982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J., concurring).  But Kirschner assumes the comment is correct, and so we will too.

This kind of aside reinforces my sense — or perhaps I should just say my hope — that it is only a matter of time before the US Supreme Court will consider, in some context, the validity of guideline commentary that arguably “sweeps more broadly than the plain text" of the guideline.

April 24, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Tuesday, April 20, 2021

Derek Chauvin found guilty on all three homicide charges in killing of George Floyd, now on to sentencing phase with Blakely factors

The high-profile trial of Derek Chauvin for killing George Floyd resulted in a jury verdict this afternoon in a Minnesota court with guilt verdict on all three homicice charges of second-degree unintentional murder, third-degree murder, and second-degree manslaughter. It is my understanding that, under Minnesota state sentencing guidelines, Chauvin would get a prison term of 12.5 years absent proof of aggrvating circumstances, so-called Blakely factors.

I believe that the the prosecution was prepared to argue numerous aggravating Blakely factors to the jury, but that CHauvin's legal team waived its right to jury determination on these issues so that they will now be argued to the judge. Though I am not an expert on Minnesota law, I believe that a judicial finding of aggravating factors in the coming weeks could make Chauvin eligible to receive a sentence up to the 40-year maximum on the second-degree unintentional murder conviction.

The Robina Institute has this helpful primer on Minnesota sentencing law, and it makes this important point about the usual approach to sentences increased based on aggravating factors under the state's sentencing guidelines:

The Guidelines do not themselves limit the degree of durational (length-of-custody) departure, but case law provides that upward departures may not exceed twice the presumptive prison term (the middle figure in grid cells above the disposition line; the sole figure in cells below the line) except in rare cases of extremely aggravated circumstances. (Cite to:  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). See also State v. Jackson, 749 N.W.2d 353 (Minn. 2008) (upholding the rule from Evans despite 27 years of changes to the guidelines).)

April 20, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Harsh penal treatment of some Capitol rioters being criticized by notable progressive

Politico continues its terrific coverage of prosecution of the Capitol rioters with this lengthy new piece fully headlined "Jan. 6 defendants win unlikely Dem champions as they face harsh detainment; 'Solitary confinement is a form of punishment that is cruel and psychologically damaging,' Sen. Elizabeth Warren said."  I am always pleased to see politicians who express concerns about the operation of our justice systems do so no matter who the defendants happen to be.  Here is how this story starts: 

Sen. Elizabeth Warren fled the Capitol on Jan. 6 from a mob she later called domestic terrorists. Now she and another Senate Democratic leader are standing up for their attackers' rights as criminal defendants.

Most of the 300-plus people charged with participating in the Jan. 6 Capitol riot have been released while they await trial, but dozens of those deemed to be dangerous, flight risks or at high risk of obstructing justice were ordered held without bond. D.C. jail officials later determined that all Capitol detainees would be placed in so-called restrictive housing — a move billed as necessary to keep the defendants safe, as well as guards and other inmates.  But that means 23-hour-a-day isolation for the accused, even before their trials begin.

And such treatment doesn't sit well with Warren or Senate Majority Whip Dick Durbin (D-Ill.), two of the chamber's fiercest critics of solitary confinement.  “Solitary confinement is a form of punishment that is cruel and psychologically damaging,” Warren said in an interview.  “And we’re talking about people who haven’t been convicted of anything yet.”

The Massachusetts Democrat, a member of Senate Majority Leader Chuck Schumer's leadership team, said that while some limited uses of solitary confinement are justified, she’s worried that law enforcement officials are deploying it to “punish” the Jan. 6 defendants or to “break them so that they will cooperate.”

Her sentiments are shared by Durbin, who also chairs the Senate Judiciary Committee and expressed surprise that all of the detained Jan. 6 defendants were being kept in so-called “restrictive housing.”  While their defense of accused rioters' rights as criminal defendants is unlikely to change the Justice Department's handling of those cases, it's a notable case of prominent progressives using their political clout to amplify their criminal justice reform calls even on behalf of Donald Trump supporters who besieged the entire legislative branch in January.

Durbin, who has long sought to eradicate solitary confinement, told POLITICO that such conditions should be a “rare exception," for accused insurrectionists or any other prisoners. “There has to be a clear justification for that, in very limited circumstances,” he said.

D.C. government officials say the pandemic already has sharply limited freedom of movement in the jail where most Jan. 6 defendants are held.  In fact, the entire jail has been subject to strict lockdown procedures since the onset of the pandemic, a determination that has caused broader controversy about prisoners' rights.  But restrictive housing is a maximum-security designation, and the blanket designation for the Capitol defendants — which isn't expected to ease even if pandemic era restrictions do — is a notable decision for a large group of inmates who have yet to be tried for their alleged crimes.

Asked about the Democratic senators’ concerns, a spokesperson for the D.C. Department of Corrections touted the growing number of educational programs and limited amenity access that inmates are now offered.  “We appreciate the concern, patience and support of our neighbors as we work to keep all within DOC safe, as well as support the public safety of all in the District,” said spokesperson Keena Blackmon.

Warren and Durbin's interest in the conditions facing detained Jan. 6 defendants come amid a massive Justice Department push to arrest and prosecute the hundreds of people who breached the Capitol and threatened the peaceful transfer of power to the Biden administration.

Prior related posts:

April 20, 2021 in Celebrity sentencings, Offense Characteristics, Prisons and prisoners | Permalink | Comments (0)

Monday, April 19, 2021

Previewing how SCOTUS will sort through Rehaif reverberations

Writing over at SCOTUSblog here, Evan Lee effectively previews the pair of criminal cases that the SUpreme Cout will hear Tuesday morning. The post is titled "Pondering the aftermath of a landmark ruling in felon-in-possession cases," and here is how it starts and concludes:

On June 21, 2019, the Supreme Court handed down its opinion in Rehaif v. United States, holding that a conviction under the federal statute penalizing felons in possession of a firearm requires not only the defendant’s knowledge that he possessed a gun, but also that he knew he had the legal status of a convicted felon.  The 7-2 decision overruled precedent in every circuit that had considered the issue.  Rehaif applies to every federal felon-in-possession conviction not yet final as of the date of that decision.  Now the question is whether some or all of those cases need to be sent back for new pleas or trials.

On Tuesday, in the companion cases of Greer v. United States and United States v. Garythe court will hear argument on how to sort out the affected cases.  Greer asks whether jury verdicts are valid if there was no consideration at trial of whether the defendant knew of their felon status; Gary presents a similar question in the context of guilty pleas.  Perhaps even more important than the issue of plea versus jury verdict is the question of whether the defendant should have to prove that he likely wouldn’t have been convicted if knowledge of felon status had been an essential element of the offense when he was first charged.  Still another critical question is what materials a court may look to in deciding whether the defendant suffered such “prejudice.”...

At oral argument, if Justices Stephen Breyer (the author of Rehaif), Elena Kagan and Sonia Sotomayor show no interest in the structural error argument, it may be doomed, as the more conservative justices seem unlikely to be more enthusiastic.  Perhaps the most interesting thing that might emerge at argument is questioning about the psychology of felons.  Can counsel for Greer and Gary offer a sufficiently plausible scenario or scenarios in which felons might not actually realize that they fit into the “felon” box for purposes of the statute?  For example, do some felons erroneously believe that a guilty plea or suspended sentence keeps them out of that category?  For that matter, do some felons believe that if they have “paid their debt to society” by serving their prison sentences, their felon status has been legally erased?  Scenarios like these could give rise to some interesting hypotheticals at argument.

April 19, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, April 18, 2021

Interrogating recent research indicating nonprosecution of certain misdemeanors lowers reoffense

A few weeks ago in this post I flagged the notable new empirical research indicating that nonprosecution of nonviolent misdemeanor offenses produced a large reductions in the likelihood of new criminal complaints.  This research is rightly getting a lot of attention, though this new National Review piece wonders if it might be getting too much attention.  The piece, by Charles Fain Lehman, is headlined "Progressives Are Overreacting to a Startling Crime Study."  And though I might dicker with some points made in the piece, I recommend the full discussion.  Here are excerpts:  

Every year, something like 13 million misdemeanor charges are filed in the United States. These charges, ranging from traffic violations to serious assaults, may be less flashy than felonies, but they are the main way Americans experience the criminal-justice system.

We prosecute misdemeanors because, among other things, we want there to be fewer of them, and we believe prosecution deters reoffending.  But a recent blockbuster paper makes a startling claim to the contrary: Prosecuting misdemeanants actually increases the likelihood that they will offend again.

The paper has been heralded by supporters of progressive district attorneys who have used their position to unilaterally impose reforms on the criminal-justice system, including refusing to prosecute many misdemeanants.  Boston D.A. Rachael Rollins, who provided the data for the study, has claimed it confirms the wisdom of her approach.  So have other reformers such as Chicago-area state’s attorney Kim Foxx and San Francisco district attorney Chesa Boudin.

Policy-makers, however, should exercise caution before reaching such expansive conclusions.  The paper can just as easily be read to endorse more modest reforms — especially keeping in mind long-established principles of criminal justice on which it is silent....

Most of the non-prosecution effect they measure is the result of first-time offenders, who become much more likely to commit crime if prosecuted.  By contrast, prosecuting repeat offenders of any sort has little discernible effect on the likelihood they will offend again in the future....  Diverting [first-time misdemeanants] offenders, with the threat of more serious punishment if they reoffend, could help clear dockets while minimizing crime. It would also free ADAs to focus on repeat misdemeanants....

The above approach is different from the idea that we should in general prosecute misdemeanants a lot less — a valid interpretation of the paper’s findings, but not necessarily the right one, for two reasons.

First, deterrence is not the only reason to prosecute an offender.  Advocates of not prosecuting misdemeanors tend to invoke “victimless” crimes such as drug possession and prostitution. But misdemeanors can also include offenses such as simple assault and auto theft — crimes that harm others.  Such crimes reasonably elicit a demand for retributive justice. It offends our moral sensibilities to think that a person who commits a serious but not felonious assault could get off scot-free.

Second, systematic reductions in leniency may affect all criminals’ decision-making, increasing their propensity to offend in the long-run. The paper shows that Rollins’s move toward non-prosecution of misdemeanors did not in the aggregate increase misdemeanor offenses, but the data it uses account only for the period between her election in January 2019 and March 2020, when the coronavirus crisis began.  It’s entirely possible that criminals will adapt, and misdemeanor offending will increase, in the long run....

Coming face to face with the justice system can be time-consuming and exhausting, and may, at the margins, increase rather than reduce a person’s propensity to offend.  Even those of us highly concerned with public safety should be interested in creative solutions that minimize crime and disorder.

At the same time, policy-makers should not get ahead of themselves — as some have in the rush to defund police departments and decrease the use of more serious charges.  Good research is the basis of good policy, and this research makes a valuable contribution to public-safety policy.  But we should be cautious in how far we go with it — careful changes around the edges are always safer than blanket transformations.

Prior recent related post:

April 18, 2021 in Criminal Sentences Alternatives, Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, April 16, 2021

First public plea deal struck by Capitol rioter, who agrees to cooperate and to reported guideline range of 41 to 51 months in prison

As reported in this Fox News piece, headlined "Capitol rioter takes first public plea deal, agrees to cooperate with authorities: sources," the first big plea in the Capitol riot cases has been announce by the Justice Department. Here are the basics with a few points highlighted:

An alleged member of the Oath Keepers militia group who was "among the first five or six" rioters to enter the U.S. Capitol Building on Jan. 6 is the first person to agree to take a plea deal, Fox News has learned. Jon Schaffer has also agreed to cooperate against others involved in the riot, officials said.

Speaking in court Friday morning, a federal prosecutor told U.S. District Court Judge Amit Mehta that Schaffer was "among the first five or six" rioters to enter the Capitol during the Jan. 6 siege. Schaffer is also the frontman of the band Iced Earth. The central Indiana native who was photographed with the mob that stormed the U.S. Capitol is accused of spraying police officers with a pepper-based bear spray irritant, the FBI previously said.

He was charged with several felony counts, including engaging in an act of physical violence and knowingly entering or remaining in any restricted building or grounds without lawful entry. Schaffer, 53, pleaded guilty to obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon.

He faces up to 30 years in prison if convicted, but Mehta said Friday sentencing guidelines call for 41 to 51 months in prison....

A sentencing hearing date has not yet been set.  Schaffer was released and will be allowed some travel for work.  He must stay out of Washington, D.C., other than for court-related matters and may not possess any firearms.

I have not yet been able to find a plea agreement or other public document that details how the guideline range of 41 to 51 months was determined. But I still find those numbers interesting, as well as the fact that this defendant, even after pleading guilty, is to be free pending sentencing.

This official DOJ press release, headed "Lifetime Founding Member of the Oath Keepers Pleads Guilty to Breaching Capitol on Jan. 6 to Obstruct Congressional Proceeding," provide some more context:

Jon Schaffer, 53, of Columbus, Indiana, today admitted that he breached the Capitol on January 6, 2021, wearing a tactical vest and armed with bear repellent, and pleaded guilty to unlawfully entering the U.S. Capitol to obstruct Congress’ certification of the U.S. presidential election results.

"On this 100th day since the horrific January 6 assault on the United States Capitol, Oath Keepers member Jon Schaffer has pleaded guilty to multiple felonies, including for breaching the Capitol while wearing a tactical vest and armed with bear spray, with the intent to interfere with Congress’ certification of the Electoral College results," said Acting Deputy Attorney General John P. Carlin. "The FBI has made an average of more than four arrests a day, seven days a week since January 6th. I commend the hundreds of special agents, prosecutors and support staff that have worked tirelessly for the last hundred days to bring those who committed criminal acts to justice."

"The defendant in this case admits forcing his way into the U.S. Capitol on January 6 for the express purpose of stopping or delaying congressional proceedings essential to our democratic process. These actions are disgraceful and unacceptable" said FBI Deputy Director Paul M. Abbate.  "The FBI and our partners will continue to utilize all available authorities to aggressively investigate, pursue and hold accountable those who committed acts of violence or otherwise violated the rule of law that day."...

Schaffer pleaded guilty to a criminal information charging him with obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon. Combined, he faces up to 30 years in prison if convicted. The Honorable Amit P. Mehta accepted Schaffer’s guilty plea.

A few prior related post:

UPDATE:  A helpful colleague got me a copy of the plea agreement, which can now be downloaded here:

Download PleaSchaffer

April 16, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Wednesday, April 14, 2021

Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast

A few weeks ago, as blogged here, Politico spotlighted some case processing realities surrounding the on-going federal prosecutions of persons involved in the insurrection on January 6, 2021.  That lengthy piece highlighted reasons why it could turn out, in the words of the headline, that "Many Capitol rioters [are] unlikely to serve jail time."  Politico now has this additional interesting piece on the same beat headlined "Leniency for defendants in Portland clashes could affect Capitol riot cases."  I also recommend this piece in full, in part because the piece showcases how differing charging policies and practices — both at the national level and in individual districts — can lead to differing case outcomes:

Federal prosecutors’ show of leniency for some defendants charged in the long-running unrest in the streets of Portland could have an impact on similar criminal cases stemming from the Capitol riot, lawyers say.

In recent weeks, prosecutors have approved deals in at least half a dozen federal felony cases arising from clashes between protesters and law enforcement in Oregon last summer.  The arrangements — known as deferred resolution agreements — will leave the defendants with a clean criminal record if they stay out of trouble for a period of time and complete a modest amount of community service, according to defense attorneys and court records.

Some lawyers attribute the government’s newfound willingness to resolve the Portland protest cases without criminal convictions to the arrival of President Joe Biden’s administration in January and to policy and personnel changes at the Justice Department.  Those moves seemed to step away from the highly public, throw-the-book-at-them stance that President Donald Trump and then-Attorney General William Barr adopted toward lawbreakers involved in racial justice protests that swept across the country last year following the death of George Floyd during an encounter with Minneapolis police.

“Obviously there was a change in direction from Washington, and once they changed the U.S. attorney, that seemed to change the tone,” said John Kolego, a defense attorney based in Eugene, Ore., who handled one of the Portland cases. “They had their marching orders from Barr before, but the tone is definitely changed,” Kolego said.

Five of the Portland cases in which deals were recently struck involved a felony charge of interfering with police during civil disorder.  Some defendants are accused of punching or jumping on police officers during the street battles.  One individual was charged after being accused of shining a high-powered green laser into the eyes of officers seeking to disperse a riot outside a police union building.

The civil disorder cases are notable because the charge of police interference is also being wielded by prosecutors in dozens of the criminal cases brought over the storming of the Capitol on Jan. 6 by pro-Trump protesters.  In the Washington cases, prosecutors have filed the felony anti-riot charge in tandem with others, like obstructing an official proceeding or assaulting police officers.

Some of the assaults described in the Portland cases bear similarities to the Capitol violence.  Prosecutors said one of the civil disorder defendants, Alexandra Eutin, used a wooden shield and hoses to strike a Portland police officer in the head while he was trying to make an arrest.  Several Capitol riot suspects are accused of using riot shields to shove police or obstruct their efforts to secure the building from the mob....

While Justice Department headquarters in Washington loudly touted the arrests and indictments related to last summer’s unrest, a spokesperson for the U.S. Attorney’s Office in Portland said the resolutions it is reaching in those cases were not being approved by officials in Washington.  “There is no across-the-board standard being used to rule our protest cases in or out of consideration for a deferred prosecution agreement, and our office does not consult with Main Justice on when to use them,” said Kevin Sonoff, the spokesperson.

However, Sonoff said the Portland prosecutors were acting under the authority that then-Attorney General Eric Holder granted to assistant U.S. attorneys a decade ago to craft resolutions they considered appropriate in criminal cases.  Trump’s first attorney general, Jeff Sessions, revoked that policy in 2017, but days after Biden’s inauguration in January, the Justice Department returned to the Holder standards that Portland prosecutors are now citing.  “Under the 2010 Holder memo on charging and sentencing, AUSAs have broad discretion on how cases are resolved,” the spokesperson said, referring to assistant U.S. attorneys.

Laurie Levenson, a former federal prosecutor who is now a law professor at Loyola Marymount University in Los Angeles, said: “Undoubtedly, defense lawyers will point to everything they can to get the most favorable resolution for their clients. Now, one thing they can point to will be the deferred prosecutions in Portland.”  Still, prosecutors in D.C. can argue that what happened there is more serious even if the physical actions of the defendants were comparable. “Attacking the Capitol is sui generis — it’s in a category of its own,” Levenson said. “One is the seat of government and the other is not.”

One defense attorney in Washington representing Capitol riot defendants said he planned to raise the Portland cases as negotiations begin between the government and defendants over those arising from the Capitol “I think they’re very relevant,” said the defense lawyer, who spoke on the condition of anonymity.  “The individual conduct is actually not all that different: You’re at a protest that turns into a riot. … The core conduct is the same, so if people out there are getting deferred prosecution for that conduct, then my guy should be.”

Nancy Gertner, a former federal judge, said she expected Portland comparisons as defense lawyers and the government jockey over the terms of potential plea deals. “Sure, it would be relevant … but that feels very different than entering into the Capitol,” said Gertner, now a lecturer at Harvard Law School.  Gertner said many of the Capitol cases were headed for what she called a “no-time resolution,” meaning no prison time. But she emphasized that offering a deferred prosecution with no criminal record — like the Portland deals — was really up to prosecutors, who may be reluctant to agree to them amid lingering outrage over the Jan. 6 takeover. “I can see prosecutors not wanting to give them — and a judge can’t,” she said....

The ad hoc resolutions in the Portland cases — some of which involve postponing action on the charges for as long as a year — are similar to more formal pretrial diversion programs in place at federal courts in Los Angeles, Seattle and Boston.  “Federal courts have programs to allow people to show they have been rehabilitated,” Lisa Hay, the chief federal defender in Oregon, told POLITICO.  “I think the government should always look at the facts of the case and the individual charges.  We are encouraged that the government is doing that in the cases here.”

The federal District Court in D.C. where the Capitol riot defendants are charged does not have such a program, chiefly because less-serious cases in the nation’s capital are typically routed to D.C. Superior Court, which does have a diversion program of its own....  Deferred prosecution or resolution agreements are often used in state and local courts, but are more rare in federal courts.  The Justice Department has generated controversy in recent years by using such deals to resolve investigations into corporations accused of being involved in criminal activity.  That led to calls by some criminal justice reformers to offer such arrangements to individuals more frequently in federal criminal cases, although they have not become widespread. 

Prior related post:

April 14, 2021 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, April 11, 2021

"Against Criminal Law Localism"

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

Scholars have long called for greater localism in criminal justice as a response to the crises of racialized mass incarceration and over-policing.  A downward shift of power to smaller local governments is thought to maximize an array of values, including liberty, equality, and efficient experimentation, and also to allow for criminal justice to better reflect societal viewpoints in policies.  But no criminal “justice” localists have recognized that a critical distinction exists between the devolution of power over criminal “law” and devolution of power over criminal “procedure.”  Because of foundational features of local government law, localities have no authority to decriminalize conduct criminalized by a state — their option is only to add more offenses to the existing state code.  Increased localism in criminal law, then, functions as a one-way ratchet for more misdemeanor criminalization and all its attendant ills: incarceration, crippling fines and fees, and the authorization of more policing, surveillance, and managerial social control of marginalized groups.  Criminal “law” localism will counteract the benefits that criminal “justice” localism is expected to advance.  Pragmatic criminal justice localists should therefore narrow their claim, excising substantive criminal law from their devolutionary program.

April 11, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, April 05, 2021

"Doing Away With Disorderly Conduct"

The title of this post is the title of this new article by Rachel Moran recently posted to SSRN.  Here is its abstract:

Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language.  Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people.  Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order.

While courts and scholars have criticized these laws for decades, none have explicitly called for their abolition.  This article does so.  The article examines both the constitutional flaws of disorderly conduct laws and the many societal harms they enable, before ultimately concluding that any minimal good they accomplish cannot justify the damage they inflict.

Amidst a growing national reckoning over the crisis of abusive and discriminatory policing, this article provides a timely critique of the criminal laws that empower such policing.  It uses disorderly conduct laws as a lens through which to examine the extraordinary costs of overcriminalization and the vulnerable people who most often bear the brunt of such costs.  While disorderly conduct laws are not the only criminal laws legislatures should consider eliminating, they are both constitutionally and socially problematic to a degree few other criminal laws achieve.

April 5, 2021 in Offense Characteristics, Race, Class, and Gender | Permalink | Comments (1)

Sunday, April 04, 2021

Seemingly encouraging, but quite complicated, analysis of racial disparities in federal drug sentencing

The past week's Washington Post included this notable op-ed by Charles Lane under the headline "Here’s some hope for supporters of criminal justice reform." A focal point of the op-ed was this newly published paper by sociologist Michael Light titled "The Declining Significance of Race in Criminal Sentencing: Evidence from US Federal Courts."  Here is how the op-ed discusses some key findings with a positive spin:

How many more months in prison do federal courts give Black drug offenders as opposed to comparable White offenders?

The correct answer, through fiscal 2018, is: zero.  The racial disparity in federal drug-crime sentencing, adjusted for severity of the offense and offender characteristics such as criminal history, shrank from 47 months in 2009 to nothing in 2018, according to a new research paper by sociologist Michael Light of the University of Wisconsin.  For federal crimes of all types, there is still a Black-White discrepancy, but it, too, has shrunk, from 34 months in 2009 to less than six months in 2018....

What went right?  Basically, decision-makers unwound policies that had provided much higher maximum penalties for trafficking crack cocaine than the powdered variant and, crucially, had encouraged federal prosecutors to seek those maximum penalties.  Supreme Court rulings, in 2007 and 2009, gave federal judges latitude to impose more-lenient sentences for crack dealing. The 2010 Fair Sentencing Act reduced the crack vs. powder punishment disparity, from a maximum of 100 times as much prison time to 18.

And starting that same year, the Obama administration Justice Department actively sought to diminish the disparity. As part of this effort, Attorney General Eric H. Holder Jr. instructed federal prosecutors in 2013 not to seek the maximum penalty for drug trafficking by low-level, nonviolent defendants.

The upshot was that the average federal drug sentence for Black offenders fell 23 months, while that for White offenders rose 23 months, possibly due to the growing prevalence of opioids and methamphetamine in White communities.  For all federal crimes, sentences for White offenders rose from 47 months to 61, while those for Black offenders fell from 81 to 67.

The United States has now restored the racial parity in federal sentencing that — perhaps surprisingly — existed before the war on crack’s start in the late 1980s.  As of the mid-1980s, Black and White offenders had received roughly 26 months in prison.

Though I am disinclined to be too much of a skunk at a sentencing equity party, I do not believe the Light study really should be the cause of too much celebration in our era of modern mass incarceration.  For starters, the Light study documents that greater racial parity was achieved as much by increases in the length of federal drug sentences given to white offenders as decreases in these sentences to black offenders.  More critically, in 2018, the feds prosecute a whole lot more drug defendants and the average federal sentence for both White and Black drug offenders is still a whole lot longer (nearly 300% longer) than in an earlier era.  I find it hard to be too celebratory about they fact that we now somewhat more equally send a whole lot more people to federal prison for a whole lot longer for drug offenses.

Moreover, the Light analysis highlights that it is largely changes in the composition of cases being sentenced in federal court that account for why average drug sentences are now more in parity among whites and blacks.  The longest federal drug sentences are handed out in crack cases (disproportionately Black defendants) and meth cases (disproportionately White defendants), so as crack prosecutions declined and meth prosecutions increased over the last decades (see basic USSC data here), it is not that suprising that average federal drug sentences for black offenders went down and those for white offenders went up. 

I do not want to underplay the importance of the harsh federal system now being directed more equally toward whites and blacks, but I do want to be sure to highlight one more key finding from the Light stidy: "In 2018, black offenders received an additional 1.3 mos. of incarceration relative to their white peers.  In drug cases, they received an additional 5 mos.  These results are not explained by measures of offense severity, criminal history, or key characteristics of the crime and trial."  In other words, while Light finds that average federal drug sentences have come into parity across all cases, looking at individual drug cases reveals black offenders are still sentenced to nearly a half-year longer than comparable white offenders.  

That all said, it is fascinating to see the data that Light spotlights and effectively unpacks (I highly recommend his paper), and I am grateful Lane spotlights what still might reasonably be viewed as a hopeful story.  I especially hope folks will keep an eye on these data as we now work our way through the COVID era and its unpredicatable impact on case composition and processing.

April 4, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Thursday, April 01, 2021

Notably split Sixth Circuit panel finds way-above guideline felon-in-possession sentence to be substantively unreasonable

Earlier this week, a Sixth Circuit panel handed down a split (unpublished) opinion finding an above-guideline sentence substantively unreasonable in US v. Stanton, No. 20-5320 (6th Cir. Mar. 30, 2021) (available here).  Any and every circuit ruling that finds a sentence substantively unreasonable is quite notable because such opinions are quite rare — for example, USSC data shows only six such reversals in Fiscal Year 2019 and only eight such reversals in Fiscal Year 2020.  (Indeed, with this Sixth Circuit Stanton ruling finding an above-guideline sentence substantively unreasonable handed down on the same day that the Fourth Circuit found a within-guideline sentence substantively unreasonable in Freeman (discussed here, opinion here), one might be tempted to remember March 30, 2021 as an historic day for reasonableness review.)

The majority and dissenting opinions in Stanton are worth full reads, and here is how the majority opinion gets started and wraps up:

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

And here is how Judge Thapar starts and ends his dissent:

District judges are not at liberty to turn a blind eye to reality at sentencing.  Instead, the sentencing factors in the United States Code require judges to consider the real-world consequences of a prison term.  Will the sentence protect the public?  Will it deter the defendant?  What does a defendant’s criminal history tell the court about his likelihood of recidivism?  Are there positive factors that might cut the other way?  The sentencing guidelines help answer these questions.  But district judges understand better than most that the guidelines are not binding for a reason: They don’t fit every case.  Especially one like Dustin Stanton’s.  Here, a conscientious district judge had a violent, repeat offender in front of him.  The last time Stanton was in federal court, Judge Waverly Crenshaw’s colleague sentenced him to 84 months.  Barely a year after his release, Stanton was back — as violent as ever, and for the same offense.  So Judge Crenshaw did what good judges do.  He balanced the sentencing factors and came up with a fair sentence: 108 months.  I respectfully dissent from making him do it again....

Fair sentencing is a key goal of our criminal justice system. The sentencing guidelines help further that goal. Still, district judges must exercise independent judgment when imposing a sentence. Sometimes the reality of a case justifies a variance downward. Sometimes, it justifies the opposite. Here, Judge Crenshaw decided that Stanton’s case called for an upward variance. That decision was reasonable. Thus, I respectfully dissent.

April 1, 2021 in Booker in district courts, Booker in the Circuits, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, March 30, 2021

Fascinating split Fourth Circuit ruling finds lawyer ineffective and 210-month sentence substantively unreasonable for addicted opioid distributor

A helpful reader made sure I did not miss an amazingly interesting split Fourth Circuit panel ruling today in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here).  I recommend the entire lengthy decision, which could probably serves as a foundation for a dozen federal sentencing classes because of all the issues raised, both directly and indirectly, by the case.  Here is the start and a few key parts of the 21-page majority opinion authored by Judge Gregory:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing....

Because Freeman’s counsel unreasonably failed to argue meritorious objections [to the presentence report's guideline calculations] and advised his client to waive those objections without understanding the gravity of that waiver — and because those objections would have resulted in a reduction of the Guidelines range applicable to Freeman’s sentence — counsel was constitutionally ineffective....

In sentencing Freeman to serve 210 months, the district court did not address sentencing disparities nor fully consider the history and circumstances of the defendant in relation to the extreme length of her sentence. With regard to sentencing disparities, counsel provides this Court with data obtained from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing Statistics tending to show that Freeman’s sentence is significantly longer than those of similarly-situated defendants...

Based on the disparity between her sentence and those of similar defendants, and on the overwhelming record evidence of Freeman’s addiction to opioids, we conclude that Freeman has rebutted the presumption of reasonableness and established that her sentence is substantively unreasonable.  To the extent that the court referenced the danger of opioids in sentencing Freeman, it was only to condemn Freeman for selling them.  While this was certainly not an improper factor for the district court to consider, it also does not reflect the full picture.  And although the district court stated that Freeman was “no doubt a major supplier” of hydrocodone, it failed to consider that the amount that Freeman sold was frequently no more than half of what she was taking herself.

Judge Quattlebaum's dissent runs 26 pages and it includes some scatter plots! It starts and ends this way:

This sad case illustrates the opioid epidemic ravaging our country.  Precias Freeman is a victim of this epidemic.  As a teenager, she succumbed to the highly addictive nature of opioids in a way that continues to wreak havoc on her life.  As a fellow citizen, I am heartbroken over the toll her addiction has levied.  But Freeman chose to be a culprit too.  By her own admission, she prolifically forged prescriptions to obtain opioids for years — not just for herself, but to sell to others.  Whatever role her addiction played, that conduct was plainly criminal and certainly not bereft of “victims.” Maj. Op. at 21. Thus, today, we consider the sentence she received after pleading guilty of possession with intent to distribute two opioids, Hydrocodone and Oxycodone.  The majority vacates Freeman’s sentence for two reasons.  It concludes that the sentence was substantively unreasonable and that Freeman received ineffective assistance of counsel. Both holdings are unprecedented in our circuit....

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community.  One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law.  And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture.  I dissent.

For a host of reasons, I hope the Justice Department has the good sense not to seek en banc review and that resentencing, rather than further costly litigation over a suspect and long prison term, is the next chapter is this all-too-common variation on the modern story of the opioid epidemic.

March 30, 2021 in Booker in the Circuits, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)