Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Crimes of Violence and Violent Crime"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Spotlighting how a change in federal Administrations could lead to a big change in federal capital punishment administration

Joe Biden campaigned on a pledge to work toward abolishing the death penalty, and the federal death penalty has been mostly (though not entirely) dormant during his time in office.  No federal executions and very few new federal capital cases have moved forward during his time in office.  (And while a President has almost no means to impact or even influence state capital practices, it is also notable that there have been relatively few state executions and state death sentences since 2021 as well.)  Though I doubt President Biden plans to make much of his capital punishment record in his re-election bid — especially because many in his base likley wish he would do more to advance abolition — I sense his approach to the death penalty would be largely the same if he were to get a second term in the Oval Office.

In contrast, and as highlighted by this new HuffPost piece, federal death penalty administration is surely likely to shift gears dramatically if we have another Trump Adminstration.  This piece's full headline highlights its coverage: "There's A GOP Plan For An Execution Spree If Trump Wins The White House: Buried on page 554 of the plan is a directive to execute every remaining person on federal death row — and dramatically expand the use of the death penalty."  Here are excerpts:

Trump, the GOP’s presumptive 2024 presidential nominee, has openly fantasized about executing drug dealers and human traffickers.  He reportedly suggested that officials who leak information to the press should be executed, too.  And behind the scenes, there’s a team of pro-Trump conservatives who are pushing for a second Trump term that involves even more state-sponsored killing than the first.

Last year, a coalition effort by conservative groups known as Project 2025 released an 887-page document that lays out policy goals and recommendations for each part of the federal government.  Buried on page 554 is a directive to execute every remaining federal death row prisoner — and to persuade the Supreme Court to expand the types of crimes that can be punished with death sentences.

Gene Hamilton, the author of the transition playbook’s Department of Justice chapter, wrote that the next conservative administration should “do everything possible to obtain finality” for every prisoner on federal death row, which currently includes 40 people.  “It should also pursue the death penalty for applicable crimes — particularly heinous crimes involving violence and sexual abuse of children — until Congress says otherwise through legislation,” he wrote.  In a footnote, Hamilton said that this could require the Supreme Court to overrule a previous case, “but the [Justice] department should place a priority on doing so.”

I have heard of Project 2025, but I am not at all sure how truly impactful its desired blueprints are regarding what we might expect from an actual Trump Administration.  After all, as noted in this post from July 2020, the "Biden-Sanders Unity Task Force" produced a big report calling for, among other items on a criminal-justice reform wish list, the future Biden Administration to: "abolish the death penalty at the federal level, and incentivize states to follow the federal government’s example."  Not only has that not happened, no formal steps have been taken by President Biden to make it happen.

Perhaps the most interesting part of this story relates to the possiblity that a future Trump Administration might seek to actively pursue or support the application of the death penalty in child rape cases.  Current Supreme Court Eighth Amendment doctrine, of course, holds that capital punishment for child rape is unconstitutional. See Kennedy v. Louisiana, 554 U.S. 407 (2008).  But Florida enacted a new capital child rape statute last year, and Tennessee legislators recently sent a similar bill to its Governor.   Given that three of the four Justices in dissent in Kennedy are still on the Court (Justices Thomas, Alito and the Chief), while none of the Justices in the Kennedy majority is on still on this Court, there is strong reason to suspect the current Supreme Court might well be prepared to reconder Kennedy at some point.  That possibility might become even that much more likely if the US Justice Department was actively advocating for Kennedy's reversal.

Will Congress ever actually do something about federal overcriminalization?

Concerns about overcriminalization, especially at the federal level, have long been bipartisan.  Nearly 15 years ago, the Heritage Foundation and the National Association of Criminal Defense Lawyers teamed up on a big report with a focus on mens rea issues.  More than 10 years ago, the U.S. House of Representatives unanimously created the "Overcriminalization Task Force of 2013" to study and conduct hearings on the problem of overcriminalization.   A couple of days before leaving the White House, President Trump issued this Executive Order on "Protecting Americans From Overcriminalization Through Regulatory Reform" (though President Biden rescinded this order a few months later).  Earlier this week, the GOP-led House Judiciary Subcommittee on Crime and Federal Government Surveillance held this hearing titled "Overreach: An Examination of Federal Statutory and Regulatory Crimes," at which all the witnesses assailed federal overcrminalization.  And so, too, did the Ranking Democratic Member of the House Judiciary Committee in this opening statement.

But, as the title of this post suggests, bipartisan complaints about federal overcriminalization seemingly has not resulted in much (any?) significant congressional action in the form of actual statutory legal reforms.  Of course, this is a pattern we see in many arenas: talking in general terms about a legal problem often proves much easier than actually settling on reform particulars for legislative enactment.  Still, just the fact of this past week's "Overreach" hearing leads me to believe there are still a number of lawmakers who might really want to get something done in this space.  And yet, because there is no major consituency or significant voting block that will be always eager to press Congress on these topics, I fear the easy and likely right answer to the question in the title of this post has to be "No."

A much different federal sentence for a different crypto criminal

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

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

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

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

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

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

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

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

Tennessee poised to become second state to authorize the death penalty for child rape since SCOTUS prohibition

As reported in this local piece from Tennessee, a "controversial bill that would allow the state to seek the death penalty for those convicted of rape of a child passed the House of Representatives Monday, clearing the final legislative hurdle before becoming law in Tennessee."  Here are the basics:

HB1663, by House Majority Leader William Lamberth (R-Portland), would allow for those convicted of rape or especially aggravated rape of a child in Tennessee to be sentenced to death.

The move received considerable pushback from Democrats, who argued the General Assembly was passing a blatantly unconstitutional law.  The bill was also not favored by Sen. Kerry Roberts, who said while he disagreed with the Supreme Court decisions that made and affirmed that the death penalty was considered cruel and unusual punishment, passing the law was not going to help overturn Kennedy v. Louisiana, as some of his colleagues might hope it would.

Despite attempts to amend the bill by Roberts, the Senate adopted the bill 24-5, with Sen. Todd Gardenhire (R-Chattanooga) joining Democrats opposed. The last stop for the bill in the legislative branch was the House Monday, April 22....  Ultimately, the bill passed on party lines, 77-19-1, with Clarksville Democrat Ronnie Glynn Present Not Voting.

The bill now heads to Gov. Bill Lee‘s desk for his signature. News 2 has reached out to the governor’s office for comment.

I expect that Gov Lee would be likely to sign this legislation (especially since it would seem any veto could be overridden). When this bill becomes law, Tennessee will join Florida in having a modern capital child rape statute despite the Supreme Court's ruling in Kennedy v. Louisiana, 554 U.S. 407 (2008), that the Eighth Amendment bars states from imposing the death penalty for the rape of a child.

Florida's capital child rape statute has yet to produce a death sentence that might become a new test case for the Kennedy ruling.  I predicted in this prior post that it might be many, many years before such a case gets to the Supreme Court.  More states having capital child rape laws on the books surely make a test case that much more likely.

Prior related posts:

• With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy? 
• Possible Florida test case for new capital child rape statute now in the works 
• First capital child rape charge under new Florida law results in LWOP plea and sentence 

"The Relative Severity of Criminal Sentences in the January 6, 2021, Capitol Breach Cases"

The title of this post is the title of this new article authored by Sam Merchant which now has an abstract available up on SSRN.  I typically will not link to an SSRN posting unless and until the full draft article is available for download.  But this article's findings seem especially timely and notable; so here is its abstract:

Many observers claim that judges are imposing disproportionately lenient sentences on January 6, 2021, “Capitol Breach” offenders.  Some have even suggested a racial or political motivation for lighter sentences.  Comparative data on these sentences and offenders, presented here for the first time, refute this narrative. Individuals convicted of felonies related to the Capitol Breach appear to actually receive longer sentences than individuals convicted of the same crimes outside of the Capitol Breach context.

But sentences in Capitol Breach cases may indeed be “lenient” for a deeper, more structural reason — the current Federal Sentencing Guidelines do not adequately account for the severity of the conduct that occurred on January 6, 2021.  There is a qualitative difference between federal offenses and the same offenses committed in the context of the “treason spectrum.”  English and American legal traditions have historically viewed treason, rebellion, and subversive activities as “the worst crimes of all” because they are crimes against all citizens and threaten the constitutional order.  Yet no sentencing enhancement addresses the increased severity of conduct involving offenses that are on the treason spectrum.

Recognizing the increased seriousness of other conduct, Congress and the Sentencing Commission have enacted an array of enhancements to punish, incapacitate, and deter offenders whose conduct involves a dangerous weapon, body armor, or even use of a fake website during an offense.  This Article proposes a new sentencing enhancement in the Federal Sentencing Guidelines that properly accounts for the relative severity of conduct involving offenses on the treason spectrum.  To reaffirm a commitment to democratic values, to deter future subversive conduct, and ensure that the legal system is equipped to respond to the severity of subversive conduct, policymakers and judges should send clear signal that subversive activities are indeed among “the worst crimes of all.”

UPDATE: It now appears that the full paper is available for download at this SSRN link.

Recapping (incompletely) the SCOTUS argument week that was ... and looking ahead

I flagged in this post at the start of this week that the Supreme Court had a quartet of scheduled oral arguments on criminal issues.  Based on press reports, it seems that defendants/individuals had a pretty good week in court taking on the arguments from  prosecutors/state actors.  But, of course, we cannot know for sure who is truly victorious until we get opinions in a few months.  Here are links to various press stories suggesting where the Court seemed to be leaning in these cases:

Snyder v. US: "Supreme Court Poised to Cut Back Scope of Anti-Corruption Law"

Chiaverini v. City of Napoleon, Ohio: "Justices Wary Of Strict Limit On Malicious Prosecution Cases"

Fischer v. US: "Supreme Court gives skeptical eye to key statute used to prosecute Jan. 6 rioters"

Thornell v. Jones: "High Court Weighs New Sentence for Arizona Death Row Inmate"

Next week's six scheduled Supreme Court arguments are not exclusively crminal matters, but there are two big crime-related cases in the bunch.  On Monday, the Court takes up Eighth Amendment issues in City of Grants Pass v. Johnson and Presidential immunity issues in Trump v. United States.  I am inclined to guess that the Justices will have some more affinity for arguments from prosecutors/state actor in these cases as compared to those cases heard this past week.  But we shall see.

Notable criminal justice counter-initiative looking likely to come before California voters

As reported in this local article, headlined "Backers say they have enough signatures to qualify Prop 47 rollback initiative," an interesting criminal justice ballot measure looks likely to come before California voters this fall.  Here are some of the details:

Critics who blame California’s 2014 Proposition 47 for runaway drug addiction, retail theft and urban squalor said Thursday they have collected enough signatures to qualify a November ballot measure that would restore penalties for serial thieves and treatment requirements for addicts.

Backers including owners of small businesses, social justice leaders and drug victim families gathered in San Francisco and Los Angeles to announce they have collected about 900,000 voter signatures, significantly more than the 546,651 required by April 23, and are turning them in to the Attorney General’s Office.

“Prop 47 achieved notable success in making California’s criminal justice system more equitable,” supporters of the proposed Homelessness, Drug Addiction and Theft Reduction Act. "However, it led to unintended consequences over the past decade — repeat and often organized retail theft, inner-city store closings, and difficulty convincing people to seek drug and mental health treatment — that can only be corrected by the voters at the ballot box with modest amendments to Prop 47.”

Prop 47 was among a series of laws and initiatives over the last 15 years aimed at depopulating overcrowded California prisons and addressing social justice concerns that have since been blamed for spurring brazen retail thefts, store closures and unchecked drug addiction. Promoted to voters as the “Safe Neighborhood and Schools Act,” Prop 47 reduced most drug possession and property crimes valued at $950 or less to misdemeanors and allowed for resentencing of those convicted of felonies for those offenses....

Prop 47 passed with nearly 60% voter approval.  An earlier effort to toughen up some of the penalties reduced by Prop 47 — Proposition 20 in 2020 — failed.  The impact on crime of Prop 47 continues to be furiously debated....  But supporters of the proposed November initiative say there’s no way to fix the state’s theft and drug problems without walking back parts of Prop 47....

Supporters stress that the proposed initiative would amend but not repeal Prop 47. It would make a third conviction for retail theft a felony, regardless of the amount stolen.  Before Prop 47, a second conviction would become a felony, but the 2014 initiative eliminated consequences for repeat offenses.  The proposed measure also would add penalties for dealing fentanyl, a cheap and deadly synthetic opioid, and provide incentives for convicted addicts to seek treatment.

"Apprendi, Punishment, and a Retroactive Theory of Revocation"

The title of this post is the title of this student note in the March 2024 Yale Law Journal authored by Jaewon Chris Kim that I just came across. Here is its abstract:

In Apprendi v. New Jersey, the Supreme Court announced what is now a seminal rule of constitutional criminal procedure: any fact that increases the penalty for a crime beyond the prescribed statutory maximum cannot be found by a judge, but must be submitted to a jury and proved beyond a reasonable doubt.  The doctrine arising from Apprendi and its descendant cases had, until recently, been confined to the sentencing context.  But in 2019, the Court in United States v. Haymond considered a potential expansion of Apprendi to judicial revocations of federal supervised release.  The Court ultimately handed down a 4-1-4 decision with minimal precedential value, but since then, there has been a swell of scholarship discussing the applicability of the jury right to this new context.  Much of this discussion has centered around the questions of constitutional interpretation raised by Haymond, and whether a revocation proceeding is part of a “criminal prosecution” as specified by the text of the Sixth Amendment.

This Note argues for a different approach.  Revisiting the Apprendi cases and their contemporary scholarly treatment reveals that the doctrine was rooted not in novel methods of textual interpretation, but in fundamental principles of substantive criminal law: what constitutes “crime” and “punishment.”  Existing scholarship has not provided an answer to how these principles might apply to a function that takes place after sentencing and final judgment, like revocation of supervised release.  I therefore introduce a retroactive theory of revocation that rationalizes Apprendi’s definition of crime and punishment within this context.  Under this theory, revocation proceedings are unconstitutional not because they are directly covered by the Sixth Amendment right to a jury trial, but because they circumvent a person’s original jury trial by allowing them to be “punished” for a different “crime.”  This means that every revocation of supervised release violates Apprendi.  Moreover, the retroactive theory suggests that other forms of post-judgment penalties, like extensions of probation and criminal fees, can similarly run afoul of the Sixth Amendment’s protections. 

Latest accounting of Jan 6 prosecutions and sentences

The Supreme Court heard oral argument today in Fischer v. US to consider the reach of a federal criminal statute used to prosecute some of the January 6 Capitol rioters.  Press reports suggest a number of the Justices were skeptical of how the Justice Department was seeking to apply federal criminal law.  I hope to comment on this front after I have a chance to listen to the oral argument.  In the meantine, the Washington Post has this new article with an up-to-date accounting of just how many persons have been subject to prosecution thanks to the events of Januarry 6.  Here are excerpts:

The investigation of the Jan. 6, 2021, Capitol attack is already the largest criminal inquiry in Justice Department history, federal prosecutors have said. And even after more than three years, it has shown little sign of slowing down.

Every week, a few more rioters are arrested and charges against them are unsealed in Federal District Court in Washington. Prosecutors have suggested that a total of 2,000 or 2,500 people could ultimately face indictment for their roles in the attack.

More than 1,380 people had been charged in connection with the attack as of early this month, according to the Justice Department. Among the most common charges brought against them are two misdemeanors: illegal parading inside the Capitol and entering and remaining in a restricted federal area, a type of trespassing.

About 350 rioters have been accused of violating the obstruction statute that the Supreme Court is considering at its hearing, and nearly 500 people have been charged with assaulting police officers. Many rioters have been charged with multiple crimes, the most serious of which so far has been seditious conspiracy.

Almost 800 defendants have already pleaded guilty; about 250 of them have done so to felony charges. Prosecutors have won the vast majority of the cases that have gone to trial: More than 150 defendants have been convicted at trial and only two have been fully acquitted.

More than 850 people have been sentenced so far, and about 520 have received at least some time in prison. The stiffest penalties have been handed down to the former leaders of the Proud Boys and Oath Keepers, far-right extremist groups that played central roles in the Capitol attack.

"Rust" movie armorer convicted of manslaughter in New Mexico gets maximum prison term of 18 months in state prison

I asked in this post last month what folks thought would be the proper state sentence for the "Rust" movie armorer who was convicted of manslaughter in New Mexico.  This CBS News piece reports at length on the outcome of the actual sentencing (and the broader context of this high-profile case).  Here are excerpts:

The "Rust" armorer who last month was found guilty of involuntary manslaughter in the deadly shooting of Halyna Hutchins, the film's cinematographer, was sentenced in a New Mexico state court today to 18 months' imprisonment. Hannah Gutierrez-Reed received the maximum penalty for her part in the 2021 tragedy that several experts have since characterized as a preventable incident, where actor Alec Baldwin discharged live rounds from a prop gun on the movie set during a rehearsal.

Judge Mary Marlowe Sommer handed down the sentence to conclude an emotionally charged hearing Monday. "I find what you did constitutes a serious violent offense," Sommer told Gutierrez-Reed. Although the prosecution pushed for this outcome — the maximum sentence — Gutierrez-Reed and her defense team had asked the judge to consider probation as an alternative. The defendant, who is now 27, raised that request herself in a statement read in court before the sentence came down. In the statement, she called Hutchins an inspiration and said she was saddened by the media coverage of her case and the negative light in which it painted her to the public....

The prosecution had cited Gutierrez-Reed's lack of contrition during the trial as one reason to impose the maximum sentence. But her attorney, Jason Bowles, said in his final remarks at the sentencing that his client had in fact cried, broken down, experienced "mental breakdowns" and "said 'if only' many, many, many times," with that side of her remaining largely unfamiliar to people following the case....

Last month, a jury convicted Gutierrez-Reed on the involuntary manslaughter charge, brought against her by the state of New Mexico in the wake of the "Rust" shooting. The former weapons supervisor on the Western film could also receive a fine for as much as $5,000, along with prison time, at the sentencing. She had originally been charged with a second felony count by the state for evidence tampering but was acquitted at the trial.

I am not at all familiar with New Mexico's back-end release rules, so I am not sure Gutierrez-Reed will serve a full 18 months (and I believe she has already been in custody for a month). But I am sure this case serves as an intereting reminder that maximum sentencing terms can sometimes prove as consequential as minimum sentencing terms.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"What are Federal Corruption Prosecutions for?"

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

What explains the Supreme Court’s repeated rejection of public-corruption prosecutions over the last two decades?  This Essay turns the lens on prosecutors, examining how their tendency to rely on broad theories of liability has paradoxically narrowed federal criminal law’s reach over public corruption.  It investigates the dynamics of public-corruption prosecutions that push prosecutors towards breadth and away from the alternatives (a narrower theory or no prosecution at all).  It considers how, relative to those alternatives, reversals at the Supreme Court have harmed the broader anticorruption project.  And it proposes an alternative approach to the exercise of charging discretion in public-corruption prosecutions, one rooted in a wholesale reassessment of what those prosecutions should be for.  The ultimate goal is not to find a theory through which corrupt acts are prosecutable federal crimes; the ultimate goal is to reduce corruption.  This guiding principle should steer federal prosecution to where it does the greatest good: bringing to light those corrupt acts that would otherwise remain invisible to the public and thus immune from political or other consequences.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Intriguing spread in outcomes after Mississippi "Goon Squad" sentencings

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

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

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

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

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

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

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

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

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

"Misdemeanor Enforcement Trends in New York City, 2016–2022"

The title of this post is the title of this notable and lengthy new research report released today by the Brennan Center.  The report's homepage includes links to data and fact sheets and all sort of other interesting materials.  And the report's introduction highlights the importance of greater data gathering in this space, and here are a few paragraphs therefrom (with footnotes omitted):

When people think of the American criminal justice system, they think of prisons, lengthy sentences, and parole hearings. They also think of serious offenses such as murder, aggravated assault, and rape. But the majority of cases are less serious offenses, as defined in statute, including drug possession, shoplifting, gambling, public drunkenness, disorderly conduct, vandalism, speeding, simple assault, and driving with a suspended license.  For many Americans, minor offenses — that is, misdemeanors, violations, and infractions — are the primary entry point into the criminal justice system. Entanglement in this part of the system is anything but minor....

Despite its broad reach, the minor offense system is difficult to quantify.  Government officials often do not collect data on infractions, civil violations, and other offenses they consider too trivial to count. The data that is collected — typically data on misdemeanors — is likely an undercount.  Even so, in the United States, misdemeanors amount to roughly three-quarters of all criminal cases filed each year. Every day, tens of thousands of people are ticketed, arrested, or arraigned for a misdemeanor, making it a central feature of the United States’ crisis of overcriminalization and an engine of its overreliance on incarceration.

In recent years, scholars and legal practitioners have brought attention to the need to rein in the sprawling minor offense system.  Misdemeanor adjudication has earned a reputation of assembly-line justice that lacks meaningful public defense or due process protections.  Some researchers have described it as a means to mark and manage disadvantaged groups deemed potential risks, whereby the “process is punishment.” In addition to the degradation of arrest, the imposed obligations and sanctions — frequent court appearances, the opportunity cost of lost wages, fines and fees, collateral consequences of a criminal record, and even jail detention — are frequently disproportionate to the severity of the crime....

As concern about the minor offense system has grown, efforts to shrink it have proliferated.  At the same time, since the start of the Covid-19 pandemic, many people in urban areas have perceived or experienced increased physical and social disorder in public spaces — petty theft, open drug use, public intoxication, people suffering mental health crises, homeless encampments, defacement of property, transit fare evasion, and public urination.  Petty and nuisance offenses, visible poverty, and public displays of disorderly and unpredictable behavior, coupled with high-profile media coverage of violent crimes and harassment, have renewed calls for stronger enforcement of lower-level offenses.

This report seeks to shed light on minor offense enforcement — what has changed in recent years, what has not, and what can be done to fix it.  Building on previous scholarship, it offers an updated national snapshot of the scale of misdemeanor cases filed between 2018 and 2021, highlighting changes over the Covid-19 pandemic.

A little interesting coverage of an interesting SCOTUS argument on drug mule case experts

Though Supreme Court action regarding Texas immigration enforcement was the story grabbing most of the headlines yesterday, Tuesday also brought an interesting SCOTUS oral argument in Diaz v. US.  Diaz concerns whether government expert testimony about what drug mules may know is problematic under the Federal Rules of Evidence, and the (little) press about the argument highlights its intrigue:

From Bloomberg Law, "Justices Search for Sweet Spot on Testimony on Criminal Mind"

From NBC News, "Supreme Court wrestles with dispute over expert testimony in drug 'mule' case: Delilah Guadalupe Diaz says testimony that she likely knew of the presence of drugs in her vehicle when she was stopped at the border unlawfully undermined her defense."

From Reuters, "U.S. Supreme Court Divided Over ‘Blind Mule’ Border Drug Smuggling Case from California"

From the San Diego Union-Tribune, "Supreme Court considers criminal intent in arguments in San Diego 'blind mule' drug courier case"

Might Pennsylvania's top court pioneer new constitutional checks on extreme felony murder sentences?

The question in the title of this post is prompted by a notable case recenly accepted for review by the Pennsylvania Supreme Court. This recent Bolts article by Victoria Law. This piece should be read in full (like all Bolts pieces), though the full headline covers the essentials: "Pennsylvania Reckons with Its Draconian Laws on Life Imprisonment: Over 1,000 Pennsylvanians are serving life without parole sentences for murders they didn’t themselves commit. The state supreme court agreed to review whether this is constitutional." Here are excerpts: (with links from the original):

In 2014, [Derek] Lee, then age 29, participated in a burglary in which his accomplice fatally shot the homeowner. Lee had not been involved in the killing and wasn’t even in the room at the time.  Nonetheless, two years later, he was convicted of felony murder, a type of charge that prosecutors can bring against someone who was involved in a crime that led to a death, even if the death was unintentional or the defendant didn’t participate in the killing.

In Pennsylvania, felony murder is classified as second-degree murder, and all convictions for second-degree murder trigger an automatic sentence of life without parole.  These abnormally draconian laws have made Pennsylvania home to near-record numbers of people sentenced to die in prison.  The state has the second-highest number of people serving life without parole, nearly 5,100 people; approximately one in five have been convicted of felony murder. ...

Life without parole has frequently been proposed as a more humane alternative to the death penalty, but advocates for reform call it “death by incarceration.” Ashley Nellis, senior researcher with the Sentencing Project, points out that LWOP sentences allow for virtually no second chance no matter a person’s transformation or the amount of time that has elapsed.  “The state is killing you, just slower — and for a wider range of offenses or participation in those offenses,” she said.

Nellis points out that the expansion of life without parole has far outpaced the decline in the death penalty. The number of people serving life without parole has jumped 66 percent since her organization began collecting data in 2003, reaching roughly 56,000 people as of a 2021 report by the organization. In Texas, for instance, the number of life without parole sentences has grown as the number of those sentenced to death has dropped. “When you’re looking at a death sentence, you have a capital attorney and [other] special rights given to you because of the seriousness of the sentence,” Nellis noted, but those protections are not available to those facing LWOP.

You be the judge: what state sentence for "Rust" movie armorer convicted of manslaughter in fatal shooting

As detailed in this AP article, state sentencing in a high-profile "Hollywood" case is now scheduled for next month.  I am interested to hear what folks might consider the appropriate sentece based on these facts:

A judge has scheduled sentencing next month for a movie set armorer convicted of involuntary manslaughter in the fatal shooting of a cinematographer by Alec Baldwin on the set of the Western film “Rust,” court records indicated Wednesday.

Armorer Hannah Gutierrez-Reed was convicted by a jury last week in the shooting on the outskirts of Santa Fe, New Mexico, during a rehearsal in October 2021.  Baldwin was indicted by a grand jury in January and has pleaded not guilty to an involuntary manslaughter charge, with trial set for July.

Santa Fe-based Judge Mary Marlowe Sommer set aside two hours for Gutierrez-Reed’s sentencing hearing on the morning of April 15....  Involuntary manslaughter carries a felony sentence of up to 18 months in prison and a $5,000 fine. Gutierrez-Reed is being held pending sentencing at the Santa Fe County Adult Detention Facility.

Baldwin was pointing a gun at cinematographer Halyna Hutchins when the revolver went off, killing Hutchins and wounding director Joel Souza.  Baldwin has maintained that he pulled back the gun’s hammer, but not the trigger.

Prosecutors blamed Gutierrez-Reed at a two-week trial for unwittingly bringing live ammunition onto the set of “Rust” where it was expressly prohibited.  They also said she failed to follow basic gun-safety protocols.

“Rust” assistant director and safety coordinator Dave Halls last year pleaded no contest to negligent handling of a firearm and completed a sentence of six months unsupervised probation.

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

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

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

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

USSC hearings on acquitted conduct: the devilish details amid a fundamental criminal process debate

I was only able to listen to some of the 4+ hours of testimony and discussion today about acquitted conduct sentencing at the US Sentencing Commission, which is only on day one of its extended hearings regarding its proposed amendments to the US Sentencing Guidelines.  This USSC hearing page now has the written testimony of all 15 persons who appeared before the Commission to discuss acquitted conduct, and those fascinating written submissions capture much of the diversity and divergence in the views expressed on this long-simmering (long-boiling?) federal sentencing issue. 

As I listened to the public hearing, the testimony and discussion with Commissioners reinforced for me all the delivish details that necessarily arise in trying to define acquitted conduct, and in trying to develop clear sentencing rules concerning when and how such conduct should or should not be considered at sentencing.  Long-time readers know that I have long been troubled by sentence enhancements based on acquitted conduct, though I have also long recognized how challenging it can be to write sound and effective sentencing rules in this space.  Indeed, as the USSC hearing explored many of the delivish details today, it was clear how acquitted conduct's intricacies may largely explain why past Commissions have avoided these issues as a policy matter and why the US Supreme Court avoided these issues as a constitutional matter since its 1997 Watts decision.

And yet, while today's hearing made acquitted conduct complications ever so salient, it also help remind me that the issue is really just a variation on a criminal process debate well articulated 60 years ago by Herbert Packer in his classic "Two Models of the Criminal Process."  Prof Packer famously wrote about two criminal process models — that is, "two separate value systems that compete for attention in the operation of the criminal process" — in the form of "the Due Process Model and the Crime Control Model."  Though perhaps trite and obvious to many, today's USSC discussion highlighted for me how advocates for limits on acquitted conduct sentencing are often giving voice, in one way or another, to the Due Process Model while defenders of acquitted conduct sentencing are humming a variation on the Crime Control Model tune.

In addition (and perhaps providing just another take on the same point), I was reminded today of my colleague Alan Michaels' terrific 2003 article on "Trial Rights at Sentencing."  Though Prof Michaels only looks at Supreme Court jurisprudence regarding defense rights in that article, he usefully describes and summarizes his accouting of SCOTUS rulings this way:

Rights directed at a balanced and thorough process — in other words, rights that support accuracy concerns or that tend to put the prosecution and defense on a more even playing field — do apply at sentencing.  Rights that offer the defendant special protections — such as those that automatically resolve errors in the defendant's favor or primarily protect the defendant's autonomy — do not apply at sentencing. 

Framed only a bit differently, one might see concerns for sentencing "accuracy" to be a kind of Crime Control concern, and one that would counsel against preventing judicial consideration of acquitted conduct.  But the jury trial right is fundamental to our nation's vision of Due Process and our commiement to "defendant special protections," and that's surely why many are troubled by any judicial sentencing process that functioanlly disregards a jury's decision to acquit on certain charges.

Of course, Prof Packer stressed his "polarized models" are archtypes that do not capture the "conflicting schemes of values" that so many embrace.  Indeed, I suspect most everyone is eager to pursue both crime control and due process; and yet, a hard topic like acquitted conduct sentencing may require marking a hard choice about which models and values to prioritize.  It will be very interesting to see where the USSC winds up in this amendment cycle.

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

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

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

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

HIGHLIGHTS

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing 

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

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

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

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

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

Noting the first beneficiaries of Minnesota’s felony murder reforms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Resisting Mass Immigrant Prosecutions"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Download Littlejohn Plea Agreeement 10-12-23

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

• FIRST STEP Act sentence reduction used to address "FBI invented" conspiracy in which feds were "the real lead conspirator"

"Redistributing Justice"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Refining the Dangerousness Standard in Felon Disarmament"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A more detailed accounting of Jan 6 riot sentencings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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