Sentencing Law and Policy

Could Professor John Pfaff help make criminal justice blogging cool again?

The question in the title of this post reflects my (slightly tongue-in-cheek) excitement from seeing that CrimLaw Prof John Pfaff has started this new blog titled "Prisons, Prosecutors, and the Politics of Punishment."  Professor Pfaff, who I consider a friend and whose terrific (often empirical-minded) work is always a must-read, was one of a number of astute law professors who used Twitter creatively and extraordinarily effectively to develop and promulgate ideas.  But now, as he explains in this "Welcome" post, it seems that the decline of Twitter has led him to a new (albeit now old) forum:

I realize that 2023 may be a little late to decide to start blogging, but I am also suddenly appreciating the extent to which I used to use the late, lamented, and now lamentable Twitter to work out new ideas, and to try to share new empirical findings quickly and in an aggressively non-academic way.   With the collapse of Twitter, and feeling some FOMO from watching everyone launch Substacks, I figured it was probably time.

As this intro notes, "substacking" seems to have become the new form of blogging; indeed, I suspect I would be inclined to go the substack route if I had not been in the habit of blogging for nearly two decades(!).  But I am quite pleased to see Professor Pfaff doing something he calls blogging, and here are some of his early substantive posts:

Millions of Uncounted People in Prison (Sort Of)

Mass Shooters, Mental Illness, and a Critical Statistical Mistake

Reform Prosecutors: The Winners and the Losers

I have already updated my blogroll to include "Prisons, Prosecutors, and the Politics of Punishment," and I am looking forward to seeing what Prof. Pfaff has to see in this new (albeit now old) forum.

Wondering how lawyers, researchers and advocates now use social media as DEPC expands its presence to Instagram

The fact that I have been doing the same basic blog using the same basic technology for nearly 20 years is proof positive that I am no longer (if I ever was) on the cutting edge of communications technology.  But the Center that I help run at Ohio State, the Drug Enforcement and Policy Center, recently expanded its social media presence to Instagram, and we are trying to figure out whether that might be a useful additional medium for connecting with our various audiences.

DEPC's plan is to use our Instagram account similarly to how we now use Facebook and Twitter/X: to share research news, event notices, Drugs on the Docket podcast updates, and more.  But we are hoping that Instagram might provide DEPC with the opportunity to break down the center’s research in more visually interesting ways to support continued audience connection and growth.  For an example of the research coverage planned through the platform, consider this post highlighting DEPC’s recent paper on prosecutorial plans to seal and expunge low-level drug offenses in Ohio.

But I am sincerely unsure of whether, especially with Twitter/X evolutions, audiences are looking to Instagram or to other social media sites for this kind of content.  Because I sense a number of (new and old) platforms are used by lawyers, researchers and advocates, and I would be really interested in hearing from readers in the comments about their professional social media uses and preferences (or even about blog technology, if so inclined).  

The Marshall Project unveils "The Language Project" to explore words used to describe people in the justice system

As a lawyer who thinks precise language and legal terminology is always important, and as a blogger who often hopes to avoid clumsy locutions and sometimes parrots and reprints journalistic word conventions, I am always interested in debates over the array of words we use in describing the criminal justice system and the people connected to it.  These debates are heating up as interest in criminal justice reform heats up.  Indeed, as some readers surely know, even the term "criminal justice system" is a matter of debate; many now speak of the "criminal legal system" in an effort to undercut any suggestion that the current system helps to achieve "justice."

Against this backdrop, I am quite intrigued to see that The Marshall Project has unveiled today "The Language Project," which it sets up this way:

Reporters and editors have long believed that terms such as “inmate,” “felon” and “offender” are clear, succinct and neutral.  But a vocal segment of people affected by the criminal justice system argue that these words — and any other words that define human beings by their crimes and punishments — are dehumanizing.

The Marshall Project occupies a unique space in criminal justice reporting.  We are not an advocacy organization, but we are committed to sustaining a sense of national urgency about the U.S. criminal justice system.  As a result, fellow journalists often ask us about our style and standards around the language of criminal justice, and activists we meet frequently confront us about our usage of words such as “inmate.”

The Marshall Project began addressing this issue in 2015, our second year of existence, but we did not make a decision to change our style guide.  Since then, through our deepening engagement with formerly and currently incarcerated people, we have realized the urgency of examining and articulating the language we use.

The Language Project serves three purposes.  First, through a series of powerful pieces by and about people with intimate experience with incarceration, we show the human impact of the words we choose.  Second, our guide, “What Words We Use — and Avoid — When Covering People and Incarceration,” makes public our decision to avoid labels such as “inmate,” in favor of language that follows the logic of “person-first” language.  Third, we provide alternatives to the labels.

At its heart, journalism is a discipline of clarity. The Language Project is our attempt to set the record straight.

Here are links to the first set of pieces in this notable new "Project":

• "Good Intentions Don’t Blunt the Impact of Dehumanizing Words" by Lisette Bamenga
• "I Was Trained to Call Prisoners a Word They Hated" by Kevin Byrd, as told to Adria Watson
• "I Am Not Your ‘Inmate’" by Lawrence Bartley
• "What Words We Use — and Avoid — When Covering People and Incarceration" by Akiba Solomon

A bloggy review of the sentencing year that was 2020

I always enjoy "year in review" pieces, even in years like 2020 that many folks may quite rightly be quite eager to forget.  So I figured I might as well "celebrate" the end of a rough year with a "bloggy" accounting of 2020 based on an all-too-quick review of some blog posts from the past year.  This accounting is not meant to be representative or even all that reflective of the year that was, it is just a list of a few post titles catching my eye for each month as I went though my 2020 archives:

From January 2020

• Two jurisdictions to watch closely in 2020 for the future of the US death penalty (mentioning Ohio and US)
• Might the 2020 campaign bring back "law and order" as a political wedge issue?
• Preliminary FBI reports indicate considerable drops in murder and other violent crimes as well as in property crimes in first half of 2019

From February 2020

• Some GOP Senators, fully aware of the mandatory minimum sentence, embrace a form of jury nullification to justify acquittal of Prez Trump
• Prez Trump's reelection campaign premieres ad focused on criminal justice reform during Super Bowl
• Roger Stone gets 40-month federal prison sentence ... but will he ever actually serve it?
• "Trump grants clemency to 11, including former junk bond king Michael Milken" 
• Without any comment, SCOTUS quickly denies cert on two big cases raising the constitutionality of acquitted conduct sentencing 

From March 2020

• Citing Williams v. New York repeatedly, NY prosecutors urge judge to consider Harvey Weinstein's "lifetime of abuse" at sentencing
• "'Complete chaos': How the coronavirus pandemic is upending the criminal justice system"
• Growing reports of growing numbers of prisoners and staffers testing positive for COVID-19
• Will thousands of federal prisoners be eligible for home confinement under AG Barr's new guidelines? 

From April 2020

• Latest BOP numbers with ever growing number of COVID cases (and deaths) in ever growing number of federal facilities
• What can and should we really learn from crime data in the midst of a pandemic and lockdowns? 
• Additional COVID-influenced grants of federal sentence reductions using § 3582(c)(1)(A) 
• According to BOP reporting, federal prison population now shrinking about 1,000 persons per week

From May 2020

• The new death penalty: COVID has now killed more US prisoners in weeks than the US death penalty has in over a decade 
• Federal Defenders write to members of Congress to detail BOP/DOJ failings in response to COVID-19
• Memorializing more drug war casualties: updating the federal drug sentences that COVID-19 turned into death sentences
• Council on Criminal Justice releases big new reform report titled "Next Steps: An Agenda for Federal Action on Safety and Justice"

From June 2020

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• "America’s Criminal Justice System Is Rotten to the Core"
• Justice Department announces the scheduling of four new federal execution dates 
• Time for another long list of (mostly COVID-influenced) federal sentence reductions using § 3582(c)(1)(A)
• SCOTUS denies, by 7-2 vote, cert petition from federal death row defendants challenging federal execution protocol 

From July 2020

• Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force
• SCOTUS holds in McGirt, via 5-4 vote with Justice Gorsuch authoring majority opinion, that big part of Oklahoma is a reservation precluding state prosecutions 
• Feds, revving up machinery of death, complete third execution of week
• Back by popular demand, another VERY long list of federal sentence reductions using § 3582(c)(1)(A) 
• A century after his birth, just a few choice quotes to celebrate Marvin Frankel, father of sentencing reform 
• First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev 

From August 2020

• Prez Trump finally announces full slate of (unlikely to be confirmed?) new nominees for the US Sentencing Commission 
• Via video, Lori Loughlin and her husband get agreed fixed short prison sentences in college admission scandal
• The new death penalty: COVID has now killed more US prisoners in months than the US death penalty has in the last two decades
• Am I crazy to think Joe Biden's pick of Senator Kamala Harris for his running mate bodes well for federal criminal justice reform? 

From September 2020

• Reviewing how much and how little the FIRST STEP Act has achieved 
• Some notable quotables from a high-profile speaker sounding like an advocate for criminal justice reform
• Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" 
• In (sentencing) memoriam: noting a few major sentencing majority opinions by Justice Ginsburg

From October 2020

• "Drug Reforms on the 2020 Ballot" 
• Bureau of Justice Statistics reporting that, as of end of 2019, "US imprisonment rate at its lowest since 1995" 
• Some notable (and mostly heartening) criminal justice discussion in final Prez debate of 2020
• With Justice Barrett seated, isn't it now time to pack the Supreme Court ... with constitutional criminal procedure cases? 

From November 2020

• Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?
• Exploring what Prez-elect Biden might (or might not) get done for criminal justice reforms 
• The new death penalty: COVID has now killed more US prisoners than capital punishment over last three decades

From December 2020

• US completes execution of Brendan Bernard despite high-profile appeals for relief
• Highlighting arguments that incarcerated persons should be high on the list for the COVID vaccines
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• Pondering next steps in federal sentencing reform on the second anniversary of the FIRST STEP Act 
• Congress agrees on education reforms that include restoring Pell Grants for incarcerated persons!! 
• Federal prison population closes out 2020 at new modern low of 152,184 according to BOP

Is Judge Amy Coney Barrett the first SCOTUS nominee to disclose multiple blog posts in her Senate questionnaire?

The question in the title of this post comes from my review of this new NPR piece headlined "What Barrett Would Recuse Herself From: Takeaways From Senate Questionnaire."  The NPR piece highlights a few parts of the 65-page questionnaire that Judge Barrett submitted to the Senate Judiciary Committee, but I was especially captivated by page 10 of that document.  On that page, Judge Barrett lists seven posts (and a comment) that she authored during a month she was guest-posting at PrawfsBlawg in March 2008.

Ever the blog fan, I checked out Judge Barrett's PrawfBlawg writings from a dozen years ago.  I was first bemused to discover that I was also guest-blogging at PrawfBlawg the same month as then-Professor Barrett.  Next, as a fan of temperance history, I especially enjoyed this post titled "Grape Vodka, Anyone?" (where perhaps some hints of originalism might be seen).  Ultimately, though, the most intriguing post for me and perhaps other sentencing fans is this one titled "Sentencing Guidelines and Retroactivity."   That post discusses at some length what then-Professor Barrett calls the "on-the-ground implications of retroactivity" of the crack guidelines that were reduced by the US Sentencing Commission in 2007.  

I won't say more about what are now dated blog musings by a SCOTUS nominee, but I will say I am pleased to be able to report that it seem a little blogging history does not alone disqualify a person from being tapped for the High Court.

New letter from Prez Trump's former lawyer, Michael Cohen, seeking sentence modification citing this blog's coronavirus coverage

Via my pals on Twitter, I just learned that Michael Cohen's lawyer, Roger Bennet Adler, has today filed this letter to support his pending application for sentence modification so that Cohen can finish serving his remaining time (about 20 months) on home confinement rather than in a federal prison.  This letter is itself only a page long, but it also includes a reference to, and an attachment of, this blog post I wrote yesterday about the need and importance of all federal officials taking swift measures to try to limit the spread and harm of the coronavirus among the federal prison population.

Kudos to Mr. Adler, and I hope all defense lawyers (and prosecutors and judges and everyone else) will feel free to use any and all resources and materials I am assembling here.  No need to ask, no need to wait, take whatever you need and make good (responsible) use of it!

Prior coronavirus posts:

• Connecting realities of incarceration to the outbreak of coronavirus 
• Rounding up more coverage of the frightening intersection of incarceration and the coronavirus
• Eager for stories and thoughts on the impact of the coronavirus on criminal justice, crime and punishment 
• When and how will federal authorities start systematically modifying federal sentencing and prison realities in response to COVID-19 outbreak?
• NYC Board of Correction calls on city to begin the process of releasing certain prisoners ASAP in response to COVID-19

Prior Michael Cohen sentencing posts:

• Michael Cohen, Prez Trump's fixer, cuts a plea deal to fix his federal sentence between 46 to 63 months in federal prison
• Prez Trump advocating for a whole new kind of sentencing reform: he says cooperation deals "almost ought to be outlawed. It’s not fair." 
• Michael Cohen, former lawyer to Prez trump, pleads guilty to lying to Congress 
• Michael Cohen makes pitch for "time-served and restitution to the IRS" based largely on his continuing cooperation
• Feds request for Michael Cohen a "substantial term of imprisonment" though with a "modest downward variance" from Guideline range of 51-63 months in prison 

The new SSRN adventures of some older writings

Some recent posts on topic ranging from second-look sentencing mechanisms to drug policy in part led me to make sure some older writings of mine were posted to SSRN for accessibility in that forum.  Specifically, I have recently had posted the following "old" papers in this "new" setting:

Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers

Sentencing is Dang Hard... And So...

Reflecting on Parole's Abolition in the Federal Sentencing System

Teaching Drugs: Incorporating Drug Policy into Law School Curriculum

In addition to welcoming feedback on these works, I would also welcome thoughts on whether folks find SSRN a particularly useful (or not-so-great) online repository.  I have many (though not all) of my longer scholarly writings available via SSRN, but I have not made a sustained effort to upload a lot of amicus briefs and shorter pieces to the site.  I sense not a lot of practicing lawyers and other non-academics use SSRN regularly, but perhaps I am not quite right on that assessment.

"Please Tweet Responsibly: The Social and Professional Ethics of Public Defenders Using Client Information in Social Media Advocacy"

The title of this post is the title of this new short article just posted to SSRN authored by Nicole Smith Futrell. Here is its abstract:

Every day the criminal legal system hauls poor and marginalized individuals through a process wrought with trauma, indignity, and abuse.  Public defenders representing the criminally accused view their clients and the system from a unique vantage point: they bear witness to the human costs of a system that falls far short of its purported norms and ideals. For the public defender who works within this reality day in and day out, fighting for each individual client might feel limited in its wider impact.  Some public defenders have found that using online and social media platforms, such as Twitter, to provide insights and commentary on the human toll of the criminal legal system is one way to contribute to a deepened public awareness of the criminal legal system’s shortcomings.  Indeed, while statistics about mass criminalization and mass incarceration provide powerful data points, narratives about the very real ways that clients experience being arrested, charged, processed and adjudicated can influence public debate and create momentum for both an individual case and more comprehensive systemic reform.

These online and social media narratives about clients can be powerful because they help to convey to unfamiliar audiences how the law is actually being experienced by those who have been marginalized because of their economic status, ability, race, sexual orientation, gender identity, or immigration status.  While this can be a compelling and effective approach, public defenders need to consider what their ethical obligations are and also what a strong sense of social and professional responsibility requires.  The deep racial disparities in the criminal legal system and the particularly unique vulnerabilities of the indigent criminal client necessitate that public defenders refrain from using client narratives in ways that may inadvertently oversimplify and exploit a client’s life experience.  This article offers public defenders practical guidance on how to ethically and responsibly draw from their specialized knowledge and the experiences of their clients in order to expose systemic injustice.

Recommending "Good Law | Bad Law" and other podcasts

Though I do not regularly listen to podcasts, I am always eager to use this platform to promote good law-related podcasts for those who do.  Today I heard from a reader who suggested checking out "Good Law | Bad Law" podcasts.  Here was part of the pitch I received:

Good Law Bad Law ... is now one of the leading law-related podcasts in the country. This week's guest was Temple Law Professor and Trial Ad expert Jules Epstein discussing the case of yet another Philadelphia man released from a long-time life prison sentence after exoneration and the broader issue of the potential pitfalls of eyewitness testimony.  In other recent episodes, this podcast has tackled lessons from Watergate with former Assistant Special Prosecutor Henry Hecht (now with Berkeley Law); the Exxon climate change trial in New York, with Michael Gerrard (of Columbia Law); a discussion about the legacy of the Nazi past with Mary Fulbrook, a leading German historian at the University College of London; and the insanity defense, with one of the foremost mental health experts, Penn Law’s Stephen Morse.

In addition to being grateful for this podcast pitch, I would welcome reader input (via comments or email) on other podcast recommendations.  For criminal justice reform fans, essential listening must include the Decarceration Nation Podcast, which describes itself as "a podcast about radically re-imagining America’s criminal justice system ... created by Joshua B. Hoe to help bring attention to the need for criminal justice reform."   Also, this Ohio criminal law professor felt compelled to listen to Serial season 3 (focused on criminal justice administration in Cleveland) and the Over My Dead Body podcast (concerning Dan Markel's murder).

But I know there is so much more out there, and I welcome hearing from others about all the other great content that folks enjoy in this space.

"Language matters for justice reform"

The title of this post is the headline of this notable recent Hill commentary authored by Deanna Hoskins. I recommend the whole piece, and here is an excerpt:

Words such as offenders, convicts, prisoners and felons have existed in our lexicon for decades if not centuries.  But in recent years people have begun speaking out against the use of these dehumanizing terms.  Eddy Ellis, the late justice reform leader, penned a letter more than 15 years ago that ignited a movement demanding an end to dehumanizing language. He wrote, “The worst part of repeatedly hearing your negative definition of me is that I begin to believe it myself ‘for, as a man thinketh in his heart, so is he.’ It follows, then, that calling me inmate, convict, prisoner, felon, or offender indicates a lack of understanding of who I am, but more importantly what I can be.”

Movement leaders have long-recognized Mr. Ellis’s call to use humanizing language — but journalists, elected officials, and people new to the field must recognize this and make the shift as well.  In some state corrections systems, offensive terms such as “inmate” and “offender” have been banned from prisons.  A few years ago, the Department of Justice Office of Justice program that oversees criminal justice efforts announced that it would no longer use the word felon or convict in any of its communications and grant solicitations, instead using “a person who committed a crime.”  Resources including Mr. Ellis’ letter, the Social Justice Phrase Guide and The Opportunity Agenda’s toolkit are readily available to help people understand humanizing “people-first” language and why it’s important.

When we no longer define someone in the media or other arenas as “other,” we shift culture and policies toward human rights and dignity.  By making a conscious effort to change, we can use language that addresses injustice without dehumanizing people — especially black and brown people facing disproportionate discrimination after a record. Several years ago racial justice advocates, successfully stopped media outlets such as the Associated Press from using the phrase “illegal immigrant” which implied that a person’s existence violated the law.  Doing so brought attention to the mistreatment and human rights violations experienced by immigrants seeking refuge in this country.

We can achieve the same in the justice space. We must all commit to using terms such as “formerly incarcerated or incarcerated person” or “person with a felony conviction” instead of “ex-con,” “felon,” or “inmate.”  By doing so we make a conscious effort to recognize and respect people’s humanity.  To do otherwise only reinforces the second-class status we relegate upon many people in this country and therefore stalls our efforts toward equal justice for all.

I am quite sympathetic to the spirit and substance of this commentary, but I fear I will continue to struggle to move away from short-hand terminology like offender and prisoner (rather than person who committed an offense or person in prison).  

"Shifting how journalists talk about people in prison"

Given that I sometimes feel a bit like a journalist when doing certain types of blogging, I found interesting and effective this new Columbia Journalism Review piece (which carries a headline that I used as the title of this post).  Here are excerpts from the piece:

Prisons are often “dangerous and inhumane spaces of abuse and degradation,” Bryan Stevenson, founder and director of the Equal Justice Initiative and a law professor at NYU, says.  Yet a great deal of mainstream media prison reporting, in his view, is “misleading and dehumanizing” and “presented with no context or insight.” At a time when the flaws in our criminal justice system are well-known and well-documented, experts and advocates say a shift in how the media covers prison and people impacted by incarceration is long overdue.

It’s bad enough when the story in question is about food (which in prison is hardly known for its quality, Stevenson notes).  It’s worse, though, when it comes to more grave matters, such as murder, suicide, and abuse, which are unfortunately common in prisons.  Then, Stevenson says the impact of language is all the more damaging. “Instead of reporting in a way that exposes the tragedy of prison violence, we get headlines like, ‘Convicted rapist stabbed to death,’” he explains.  “The media presents the victim as if he could only be the crime he was convicted of. It happens all the time, over and over again.”

Last spring, for example, a Newsweek article asked, “Who were the South Carolina inmates killed in deadliest U.S. prison riot in 25 years?”  By way of answer, the story offered only the men’s names, sentences, and crimes.  “Cornelius McClary, 33, was serving 25 years for first-degree burglary and battery, firearms provision and criminal conspiracy in Williamsburg County in 2011,” read one mini-obituary. When a person is reduced to their crime at the outset, advocates say, it’s no surprise when challenges to their worth and dignity follow....

Alex Gudich, deputy director of the criminal justice reform group #cut50, gives the media some credit for tracking and exposing the failures of today’s criminal justice system, as well for helping champion reform, in the case of some outlets.  Even well-meaning stories can fall short, however, he says, by leaning on stereotypes and failing to count the perspectives of those who are incarcerated or who have been impacted by incarceration.

Among fixes for journalists, Gudich and his colleagues at #cut50 — which was founded in 2014 with the goal of reducing America’s prison population by half within ten years —recommend starting with person-centered language.  That is, “people in prison” or “incarcerated persons,” as opposed to “convicts” or “inmates.”  This is an ongoing culture shift that began in the criminal justice reform community several years ago but that hasn’t yet caught on in media, Gudich says....

But it’s not just a matter of semantics. “One of the reasons prison and criminal justice reform have been so difficult to achieve is how we talk about people who are incarcerated in this society,” says Jelani Cobb, a New Yorker staff writer and director of the Ira A. Lipman Center for Journalism and Civil and Human Rights at Columbia Journalism School. “As long as we’re talking about people only in terms of what they’ve done wrong, it’s easy to camouflage the fact that we’re talking about human beings.”...  

Advocates also recommend doing more to incorporate information other than what is provided by prison workers and the police. This presents challenges, they acknowledge, given the famous opacity of prisons and jails, the reticence of defense attorneys to allow clients to speak with the press, and the general business of public defenders.  But direct access to people who have been accused or convicted isn’t the only way to introduce balance into prison stories: experts on prison conditions abound, as do family members of prisoners.  In the wake of the holiday meal stories, Chandra Bozelko, a formerly incarcerated writer and reporter who comments frequently on prison-related issues, received calls from only a handful of small podcasting outfits. “If a tiny little podcast with, like, no staff at all can find me, so can a major newspaper,” Bozelko says...

Bozelko, by her description, is less of a “word hawk” than some advocates.  She’s not as offended by the word “felon,” for instance, as she is by factual inaccuracies in stories by reporters who seem to never have stepped foot inside a prison.  As for the inaccessibility of American prisons, she proposes an easy solution: hire more reporters with criminal records. Bozelko points to Keri Blakinger of the Houston Chronicle, who spent time in prison between 2010 and 2012 — and whose reporting has recently netted changes to dental care for prisoners in Texas, in addition to the firing or resignation of five prison workers involved in a scheme to plant evidence in prisoners’ cells.

None of this is to say it’s a reporter’s job to swing to prisoners’ defense, Bozelko says.  Ultimately, she just wants to see more nuance from mainstream outlets and an acknowledgement of the circumstances, bad luck, and structural factors that often feature heavily into the real stories prisoners have to tell: “Regardless of what a person did, prison wasn’t in their plan, and it’s not who they are.”

A hasty review of the SL&P year that was 2018

Year in review stories are catnip to me, so I figured I might as well use an unexpected little pocket of free time to create my own listing of big events in 2018 based on a lightning quick review of blog posts from the past year.  This listing is not representative or even all that reflective, and I welcome reader input on stories forgotten or unmentioned (or poorly ranked).  So, for giggles and comment, here is a list of post titles and links providing an imperfect, too-quick review of some notable stories from the past year:

25. Congress finally enacts "Paroline fix" that should improve victim restitution in federal child porn cases 

24. The Matthew Charles saga: another sad example of why complete abolition of parole was a mistake for federal sentencing

23. Entire First Circuit urges Supreme Court to revisit Harmelin's limits on Eighth Amendment challenges to extreme adult prison sentence 

22. What a difference a DA can make: new Philly District Attorney taking new approach to juve lifer resentencings 

21. Noticing the continued decline of the federal prison population (for now) ... and a story embedded with intricacies 

20. Judge Aaron Persky recalled by voters in response to lenient sentencing of Brock Turner 

19. "Charlottesville Jury Recommends 419 Years Plus Life For Neo-Nazi Who Killed Protester" 

18. Examining thoughtfully modern trend to prosecute overdose deaths as homicides

17. California reduces reach of its broad felony-murder law, and provides for retroactive sentence reductions accordingly 

16.  Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison

15. DPIC releases year-end report noting that 2018 was "fourth consecutive year with fewer than 30 executions and 50 death sentences"

14. DOJ casting new marijuana enforcement memo in terms of "rule of law" and "local control"

13. Bill Cosby gets 3 to 10 years of state imprisonment with no bail pending appeal

12.  Michael Cohen sentenced to three years in federal prison ... and joins ranks rooting hard for passage of the FIRST STEP Act

11. Washington Supreme Court strikes down state's death penalty based on its arbitrary administration

10. Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation

9. Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet supervised release!! 

8. Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!

7. Prez Trump makes (tough) nominations to US Sentencing Commission (notably, these USSC nominees never got a Senate hearing or vote) 

6. How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them? 

5. Criminal justice reform ballot measures passing in Florida and Louisiana, but losing badly in Ohio

4. Jeff Sessions is no longer Attorney General of the United States 

3. Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more

2. DC Circuit Judge Brett Kavanaugh nominated by Prez Trump to replace Justice Kennedy

1. Prez Trump signs historic (though modest) FIRST STEP Act into law ... and now comes the critical work of implementing it well!!

A closing thanks to Prof Drinan ... and an open invitation

As readers know, I was fortunate to have Professor Cara Drinan guest-blogging on her book, titled "The War on Kids: How American Juvenile Justice Lost Its Way," while I was on the road this past week. In addition to here expressing my thanks for her great work keeping this space warm while I was away, I also wanted to link all her postings here:

On Prof Drinan's book:

• The War on Kids Post #1
• The War on Kids Post #2
• The War on Kids Post #3 
• The War on Kids Post #4 
• The War on Kids Post #5

 Other postings:

• Virginia Asks Supreme Court for Delay in Resentencing Malvo
• Prison Nurseries? 
• The Modern Eighth Amendment 

In addition to closing out Prof Drinan's guest-blogging, I figured I would also use this post to note my general eagerness to help all sorts of folks utilize this soap-box in all sorts of ways.  As regular readers know, I can and often will do a single guest-post when someone sends me new information or thoughtful commentaries on sentencing topics.  And I am ever interested in having an array of authors guest-post about recent articles, reports or books.  I also welcome comments with suggestions on ways to get other voices in this space.

Professor Cara Drinan guest-blogging on "The War on Kids"

I am heading out today on a family trip that will take me off-line (and thus not blogging) for much of the next week.  I am very pleased to be able to welcome Professor Cara Drinan as a guest-blogger to discuss her book, titled "The War on Kids: How American Juvenile Justice Lost Its Way," which was just published by Oxford University Press and is available here.  I am so very grateful Cara was interesting in doing some blogging while I am away. 

Here is a part of the publisher's description of Cara's book:

In The War on Kids, Cara Drinan reveals how the United States went from being a pioneer to an international pariah in its juvenile sentencing practices.  Academics and journalists have long recognized the failings of juvenile justice practices in this country and have called for change. Despite the uncertain political climate, there is hope that recent Supreme Court decisions may finally make those calls a reality. The War on Kids seizes upon this moment of judicial and political recognition that children are different in the eyes of the law.  Drinan chronicles the shortcomings of juvenile justice by drawing upon social science, legal decisions, and first-hand correspondence with Terrence [Graham] and others like him -- individuals whose adolescent errors have cost them their lives.  At the same time, The War on Kids maps out concrete steps that states can take to correct the course of American juvenile justice.

I believe Cara may be covering ground in this blog space that goes beyond what appears in her book, and I am very happy to share this space and am excited to see what Cara wants to say here.  (I hope and expect to do still do a little blogging while on the road over the next week, but I certainly will not be able to keep up my usual pace.)

Looking back on past patriotic posts

Holidays always seem to make me want to look back, and I always get a special kick out of mining the archives of this blog (which has been going now for more than 14 years).  Reviewing the archives, I realize I have not regularly done a special Independence Day post, but every so often I am inspired to do so.  Looking back, I particularly recall an effort to honor Frederick Douglass's famed Independence Day oration from 1852 through a post titled "What to the American imprisoned is the Fourth of July?". 

Here are a few other posts on this patriotic day from years past (folks can try to guess the year of the post for sport):

• Celebrating liberty, Blakely-style
• Celebrating liberty in the country leading the world in incarceration rates
• Celebrating our declaration of rights to "Life, Liberty and the pursuit of Happiness"
• An Independence Day open thread seeking comments on liberty and freedom in the US
• Another July 4th open thread seeking comments on liberty and freedom in the USA
• Celebrating "the blessing of liberty" as the big winner in the SCOTUS Term just completed
• "Everyone should go to jail, say, once every ten years"

Also interesting in hindsight is a post from a decade ago, "Thinking creatively about different SCOTUS short lists," which is a reminder that just 10 years ago there was all sorts of pre-2008-election chatter about whom Prez candidates Barack Obama and John McCain might appoint to the Supreme Court.  In addition to thinking about how much (and how little) has changed in the past 10 years, that post led me to thinking about how much (and how little) can and will change in the next 10 years.

"In Justice Today" has now become "The Appeal"

In this post about one year ago I noted the creation of "In Justice Today" a new publication of the Fair Punishment Project at Harvard Law School. The publication had an introductory post that suggested that "the local elected prosecutor" was to be a particular focal point of the new publication's reporting.  Now, via email, I have been told of this (small?) transition:

Dear friends,

I am thrilled to be unveiling the Justice Collaborative’s newly renamed, revamped, and relaunched criminal justice publication: The Appeal. The Appeal, which steps in where In Justice Today leaves off, is a daily news source of original reporting focusing on local criminal justice systems — the most significant drivers of mass incarceration.

In creating The Appeal, we wanted something that was rigorous and hard-hitting, and engaging to the average reader.  We are putting a human face on the practices of local criminal justice systems.  Today, Professor Angela J. Davis outlines the importance of prosecutors, and Raven Rakia and Ashoka Jegroo explore the history of the push to close Rikers Island.  Please check them out and let us know what you think!

It’s my sincerest hope that you enjoy our brand new publication and find it useful in your own work. We will continue digging deep in counties across the U.S. to shed light on the most undercovered parts of the system. 

Too much criminal justice reporting relies on politicians, prosecutors, and law enforcement officials as the arbiters of the truth. We aim to be the journalistic watchdog that changes that.

If you have any feedback on our new look—or just want to draw our attention to something you’d like to see in The Appeal — please drop us a line!

Sincerely,
Sarah Leonard, Executive Editor The Appeal

I sense that local criminal justice systems rather than just local elected prosecutors are now more clearly the focal point of this re-branded effort.  But it seems also that the Fair Punishment Project at Harvard Law School is no longer the main sponsor of this publication, though its new ABOUT page is somewhat opaque.

Whatever the backstory particulars, I always found a lot of interest and value at "In Justice Today" and I presume I will likewise find much of interest and value at "The Appeal."

Seeking reader input for possible blog redesigns/improvements

I have the great fortune of getting some terrific help from some terrific students exploring, in their words, a "number of different options to improve the layout and interface of the blog platform."  In furtherance of this work, these students have designed an easy survey for readers to gain insights into readership and blog users.

Here is a link to the survey, which can be completed in about a minute.

It would be very helpful if readers will take a minute to fill out this survey.  Many, many thanks!

UPDATE: Scrolling now to the bottom of the comments on this post will reveal that David Behar has agreed to not comment here for 30 days  to see if his absence can allow the comment discussion to grow in quality and quantity.  So, in addition to urging readers to take the survey linked above, I think some might find it especially useful to start commenting more on other posts.

March madness + spring break = light blogging

A host of great distractions this Spring Break week will likely mean  more time away from the computer and thus less blogging in this space.  The Murphy’s Law of blogging would suggest that we will get a lot of blog-worthy sentencing developments while I am away, but perhaps there will be a relative calm in the sentencing waters before SCOTUS gets back in action next week.  

Lots of criminal justice coverage at start of new Harvard Law Review Blog

Via email, I learned of an old institution of legal scholarship trying its hand at a new(?) medium. Here is the explanation via the email text:

We are excited to announce the launch of the Harvard Law Review Blog.

The Harvard Law Review published its first issue more than 130 years ago with the hope that it could “enlarge our field” and be “serviceable to the profession” through thoughtful and relevant legal analysis.  Our Blog continues this effort.  By fostering legal inquiry and argument that is fast-paced and timely, the Blog will strive to complement the long-form, in-depth analysis that has filled our pages for over a century.

Like our print edition and the Forum, the Blog will bring together the scholars, practitioners, and leaders who are on the forefront of today’s biggest legal issues — who are pushing for a deeper understanding of the law. In keeping with our tradition as a generalist publication, our contributors will explore a range of topics, from Chevron deference and civil rights to international trade and immigration law.

In 1887, the editors of the Law Review’s first issue wrote, “It will be our aim to develop the Review on the lines we have indicated, in the hope of deserving the support which we have already received.” Today, we launch the Harvard Law Review Blog in the same spirit.

Notably, a number of the initial posts up on the HLR Blog have a criminal justice focus:

• "Even After ‘Historic’ Criminal Justice Reform in Louisiana, Our Work Is Not Yet Done" by Lisa Graybill

• "Costs of money bail to justice" by Honorable Tani G. Cantil-Sakauye

• "Voting Rights: The Struggle of Our Lifetime" by Eric Holder, Jr.

Thankful for so much for so many reasons ... including all sorts of 2016 sentencing law and policy developments

Reviewing some past Turkey Day posts, I noticed my wise tendency to just express thanks in this space on this day for giving thanks.  For example, this post five years ago started this way: "I have so much to be thankful for on this Thanksgiving 2011, I do not even know where to start. I do know that today is an especially good day to be thankful that most Americans will spend today reflecting on how much they have to be thankful for in this wonderful nation rather than spending so much time complaining about this or that." I now find it funny and fitting that circa 2016 I cannot even remember what folks were spending so much time complaining about on Thanksgiving 2011.

In the wake of a jarring election season and result, I know what most folks are busy complaining about now.  But I remain thankful for so much for so many reasons today, and that includes an array of interesting and dynamic sentencing law and policy developments that transpired over the last year. (I will wait until next month to do a few formal 2016-in-review posts about sentencing developments, but I am eager now to assert that I think everyone who follows sentencing law and policy can and should find something encouraging to be thankful for this holiday season.)

And, speaking of being thankful and 2016 sentencing law and policy developments, I want to remind readers of this Federal Sentencing Reporter call for commentaries.  And, just to stir the pot, I will also link to two prior Turkey Day posts that might generate some engaging discussions:

What SCOTUS sentencing cases are you thankful for?

What SCOTUS sentencing cases are you least thankful for?

Why blogging is likely going to lighter in the next few days (and an inquiry for commentors)

My all-time favorite bi-annual sporting event has gotten started this morning, and I hope and expect to be spending much of next few days watching the action and/or refreshing this official scoring webpage.  Here is an image that will reveal my strong rooting interests:

Though it would be a real stretch to try to assert that there is some kind sentencing significance to this sporting event, I do think this post provides a useful opportunity to inquire of commentors concerning an assertion made deep into the comments of this post from earlier this month.  Specifically, an assertion was made that this blog's "comment crew ... is 95% people who hate Amerikkka."

I expect that people who in fact "hate Amerikkka" would be be rooting hard against the USA and may be quite eager to report (perhaps in the comments to this post) that they are hoping the USA team loses this event and other contests that pit Americans wearing our flag against contestants representing other nations.  So, if you consider yourself a member of this blog's "comment crew," I am genuinely interested to hear which team you may be pulling for in this competition.

If you are eager to take a peek behind this blog...

you can and should thank Scott Greenfield, the defense attorney behind the terrific Simple Justice blog, for kindly inviting me to be subject to this "cross" at Mimesis Law.  Scott asked me 10 series of questions about my personal and professional history, and as a teaser I will reprint here the first and last sent of Scott's "crossing" inquiries:

Q. You graduated Princeton in 1990 with a degree in philosophy.  Why philosophy?  Was this about a liberal arts foundation for the future, or was there a plan to be the Nietzsche of Jersey?  How did that prepare you for the rigors of law school and, later, the practice of law?  Were there any alternatives coming out of Princeton other than law for your future?...

Q. Having written the hornbook on sentencing law, getting your second endowed chair professorship, and being the acknowledged sentencing scholar on the internets, what’s next for you?  Are you a professor for life?  Dean someday? What about a seat next to Judge Calabresi? What’s the next step for Doug Berman?  And will SL&P last forever?

If you are curious at all about how I responded to these queries and eight more sets of terrific questions in between, please do check out CROSS: Douglas Berman, The Final Sentence

Lots of notable new sentencing stories via How Appealing

I still think of Howard Bashman and his How Appealing blog as the granddaddy or godfather in the world of law blogging.  And mornings when a lot of the newest contents at How Appealing includes links to interesting sentencing stories, I am sometimes tempted in this space to just provide links to Howard's links.  Today I am giving in to this temptation via links here and here.

Tragic and personal criminal justice story: the killing of Professor Dan Markel

Like many other law professors and bloggers, I was stunned and deeply saddened upon learning yesterday that Florida State University law professor Dan Markel died after having been shot at his home.  Paul Caron at Tax Prof has this post, Death of Dan Markel (1972-2014), with news reports and links to postings by other law profs and bloggers.

Dan was a personal friend, and his extraordinary commitment and contribution to big ideas in criminal law and theory during his (much too short) life cannot be easily overstated. Of particular note, Dan was among the most active and forceful voices seeking to define and defend a modern conception of retributive justice. For that reason and many others, I hope those responsible for this shocking crime are brought soon to justice.  

All those who were close to and cared for Dan are in my thoughts and prayers. RIP Professor Dan Markel.

Sorry for all the tech problems, which I hope are now fixed

It seems the tech folks behind the typepad software had a terrible, horrible, no good, very bad Monday. I spent all day trying to access the blog, and I suspect I was not the only one. It now seem that all is better, and so I plan to return to regular programming. But I first wanted to extend my apologies to any and all reader who, like me, got really tired of seeing loading errors instead of this blog yesterday.

"Top 50 Criminal Law Blogs"

The title of this post is the heading of this posting at the website "Criminal Justice Degree Schools." I am not exactly sure if the site's rankings are definitive, but here is how it introduces the list:

We have organized the best criminal law blogs on the Internet and ordered them based on popularity according to third party sources.* These blogs provide excellent commentary and insights into criminal law from the point of view of prosecutors, defense lawyers, and professors. You can also follow these blog authors on Twitter to stay up to date on the latest news in criminal law.

*The order of this list of top criminal law blogs was determined based on website metrics including Page Authority, number of websites linking to the blog, MozRank, Google PageRank, and Domain Rank. The data is taken from third party sources including Opensiteexplorer.org, Google, and Ahrefs.com.

If you click through to the list, you will quickly see why I am partial to the rankings. More importantly, I find this whole list a very valuable resource for those interested in keeping up with criminal justice blogging.

Heading to law school alma mater for (rescheduled) reunion weekend

I am likely to be off-line much if not all of the next few days as I head up to Boston to attend my 20th reunion at Harvard Law School.  I find it hard to believe it has been two decades since I graduated, and the weather forecast suggests I will have a good excuse to use the HLS tunnels to get around just like old times.  I am not sure how many reunion events I will attend, but I am looking forward to showing my kids around Boston and Cambridge.

Notably, even this post has a criminal justice story behind it: this reunion weekend was originally schedule from this Spring but had to be cancelled because it was slated for the weekend that the hunt for the Marathon bomber had essentially shut down Boston.

In praise of student-assembled reading lists for law school seminars

I am using this space to promote and praise a law school teaching technique that I keep using to good effect in my "hot topic" seminars.  Starting this week, the students in my Marijuana Law, Policy and Reform seminar are "taking over" the class and classroom by selecting topics of special interest to them and assembling readings to provide the basis for our classroom discussions of these topics.  I am posting these student-assembled readings over at Marijuana Law, Policy and Reform, and the first set of readings covers tax issues.

I had students assemble readings for a death penalty seminar to great effect a few years ago, and I was moved by the first collection assembled in my marijuana seminar to do this post of praise.  I am finding, yet again, that law students are consistently able to find lots of on-line, user-friendly readings on law and policy topics (and, wonderfully, often draw on primary materials other than SCOTUS cases and on secondary materials other than law review articles). 

Cross-posted at PrawfsBlawg.

Please welcome (and often visit) the new Civil Rights Law & Policy Blog

It is with great joy and pleasure that I get to promote a great new blog just started by a great former student of mine, Andrew Ironside.  Andrew explains in this first post, some of his primary plans and aspirations for his new Civil Rights Law & Policy Blog:

CRL&P’s goal is to provide an open space for discussion of civil rights and constitutional law issues.  CRL&P’s analyses will focus on contemporary civil rights debates and the concomitant coverage of these conflicts by the press and the academy.  Further, CRL&P will also highlight historical examples of civil rights disputes as they relate to our current understanding of these issues.

CRL&P also hopes to serve as a resource for anyone interested in learning more about this robust and important area of the law.  In particular, CRL&P will provide daily news rundowns; and, it will highlight forthcoming, newly-released, and generally interesting scholarly works relevant to CRL&P’s areas of inquiry.  Visitors are encouraged to visit CRL&P’s resource page.

CRL&P also welcomes debate — comments and criticisms are encouraged, and responses to both specific CRL&P posts and the blog as a whole are appreciated.

Additionally, CRL&P will consider submissions for guest posts. While the scope of civil rights and civil liberties provides virtually limitless opportunities for inquiry, potential guest contributors are encouraged to consider CRL&P’s goals before sending submissions. Similarly, there is no limit to the length of guest posts. But, potential guest contributors ought to consider the blog format before clicking “send.”  Submissions should be sent here.

The editor is Andrew M. Ironside, a graduate of The Ohio State University Moritz College of Law.  Ironside’s academic interests include civil rights law, election law, the First Amendment, and the right to vote. Currently, with support from the new Institute for the Study of Democracy at Ohio State, his research focuses on the right to vote as protected First Amendment speech (more forthcoming).

I have had the pleasure to work with Andrew on a variety of projects, and his prior work history in journalism as well as his interest in the intersection of civil rights and criminal justice leads me to urge fans of SL&P to make regular visits over his new Civil Rights Law & Policy Blog.  Indeed, here are just a small sampling of the many interesting posts one will find at that space already:

• Women allege forcible strip searches violated their civil rights
• Today in Civil Rights History: Roger Williams' early stand for civil liberties
• New Sentencing Project report shows life sentences have quadrupled since 1984
• Third Circuit finds middle schoolers’ “I ♥ boobies” bracelets protected by First Amendment.

Welcome to the blogosphere: "The Civil-Criminal Distinction Blog"

I am pleased to learn that the idea of academics starting new blogs about legal issues has not yet become passé, as evidence by this new blog titled "The Civil-Criminal Distinction Blog."  This title, obviously, reveals the planned focus for this new blog, but this about page provides these additional details about the author and his plans:

My name is Alexander Blenkinsopp.  I am a graduate student at Harvard University.  You can e-mail me at [email protected].

This blog is dedicated to documenting and analyzing the blurry distinction between civil law and criminal law.  I intend to use this space to call attention to interesting scholarship on the topic, to highlight current news involving the civil-criminal distinction, to discuss cases implicating this subject, and to share my own thoughts on the issue.  I welcome comments, both on the blog itself and via e-mail.  My introductory post provides more information.

The modern regulation of sex offenders seems likely to be a frequent topic on this new blog, as evidenced by these two recent substantive posts:

• South Carolina Supreme Court on GPS Monitoring of Sex Offenders
• Continued questions about civil commitment of sex offenders

Another notable sign of our modern legal on-line times (and a suggestion)

Via the always timely How Appealing, I came across this new Harvard Crimson piece headlined "Harvard Law Review Increases Online Presence." Here is the heart of the report:

The Harvard Law Review will more than double the number of editors focusing on online content for the publication next year in an effort to expand its web presence.

Increasing the online staff from two to five, these new editors will join the Forum Committee, which is responsible for developing the website and editing the material published online.  In the next year, the Law Review hopes to enhance the functionality and design of its website in addition to increasing the quantity of published content, according to second-year Law School student Gillian S. Grossman ’10, the recently elected president who will lead 127th Volume of the organization....

The majority of returning editors voted to add two additional students to this year’s pool of rising editors in order to expand the online content while maintaining the quality of the current print operations, according to Grossman.

The Law Review will also grow the amount of material published online in an effort to increase the resources available for scholarly research.  “The Law Review recognizes that legal conversations and legal scholarship are taking place online in addition to print mediums,” Grossman wrote in an email.  “The Law Review’s Forum provides a platform for authors to engage with the articles we publish in our print issues and to engage with current legal developments through various forms of online scholarship.”

In line with this mission, the Law Review began publishing its print materials online in 2006.  The organization also created a “Forum” section on its website where contributors can write exclusively online content.  In the past, these articles have come in the form of “Responses,” approximately 2,500 word pieces written in response to articles published in the print journal.  With the new push towards expanding the Law Review’s web presence, the “Forum” will also begin publishing “Reactions,” shorter pieces commenting on recent developments in the law, as well as other scholarly essays.

I am always quite pleased to see any and all efforts from the folks at Gannett House to continue to innovate with the form and function of modern legal scholarship.  And, ever eager to encourage my favorite kinds of engagement "with current legal developments through various forms of online scholarship," I will make one big suggestion for the new HLR leaders: try to use the new on-line spaces to try to cover much more state "developments in the law" both legislative and judicial (and, to make me really giddy, give special attention to state criminal justice developments).

Welcome to the blogosphere Judge Richard Kopf via "Hercules and the Umpire"

I am so very pleased and intrigued to be able to report that one of my very favorite district judges has now decided to get more actively involved in one of my very favorite activities. Specifically, U.S. District Court Judge Richard G. Kopf has started this notable new blog under the notable name "Hercules and the Umpire."

Judge Kopf's first big post is titled "The Who, the Why and the Title of this Blog," and here are excerpts which highlight why I am so excited to follow what Judge Kopf does in his new cyber-space:

The Why

About seven years ago, a bright law student asked me about blogging and that exchange became part of a blog.  See Ian Best, Judge Richard Kopf (D. Nebraska): Legal Blogs Will Fill the Practicality Gap,

The student asked me whether I would consider blogging.  I answered this way: “If I were to write my own blog, it would have something to do with what it means to be a federal trial judge on a day-to-day basis. I am not sure, however, that I want to reveal that much about myself.”

I am now on senior status, and with that change in status (plus advancing age) my reticence to blog has lessened.  I think I have something worth writing about.

I am very interested in the role of judges and particularly the role of federal trial judges. So, that is what I will write about in this blog.

As an aside, even though I am a senior judge, I still have an active caseload.  Thus, I must not comment upon pending or impending matters. I will strive hard to live up to that restriction.  Fair warning: nothing I write about in this blog should be taken as a comment upon those forbidden areas.

The Title

I hope the title evokes an image of two poles.

On the north, we have the late great Ronald Dworkin’s all knowing judge, Hercules.

On the south, we have Chief Justice Roberts’ formulation of the judge as umpire.

I am interested in knowing (1) which pole is the better and (2) whether there is a longitude and latitude between those poles that locates the proper role of a federal trial judge.

"How Many People Have Been Killed by Guns Since Newtown?"

The question in the title of this post is the headline of this interesting new web-based project now up at Slate.  Here is how authors Chris Kirk and Dan Kois explain the project:

The answer to the simple question in that headline is surprisingly hard to come by.  So Slate and the Twitter feed @GunDeaths are collecting data for our crowdsourced interactive.  This data is necessarily incomplete.  But the more people who are paying attention, the better the data will be.  You can help us draw a more complete picture of gun violence in America.  If you know about a gun death in your community that isn’t represented here, please tweet @GunDeaths with a citation. (If you’re not on Twitter, you can email [email protected].)  And if you’d like to use this data yourself for your own projects, it’s open.  You can download it here.

Some holiday-themed sentencing headlines for Festivus celebrants

I am not sure if there is any enduring importance to the stories linked below, but they all caught my eye today as I was making my usual review of sentencing headlines via Google news. 

Especially if one is celebrating Festivus today and is eager to have a special criminal-justice-portion of the traditional "Airing of Grievances", I suspect the stories below might make for helpful holiday dinner table conversations.  Indeed, though there are a number of serious (and not-quite-so-serious) stories lurking behind the various headlines below, I think we could have an amusing Festivus contest involving Feats of (intellectual) Strength by seeing who can come up with the most clever "Onion-type" story to accompany one or more of these headlines:

• "Toys for Tots giveaway cancelled after news of registered sex offender"

• "Pope pardons former butler who stole and leaked documents"

• "Santa's gifts are special deliveries from prison"

• "Naughty 'Santa' Mike Busey busted for selling booze at the Sausage Castle"

• "Windsor police investigate Bad Santa"

• "The Supreme Court's Twelve Days of Christmas, 2012"

Happy Festivus one and all.

Should high-profile prosecutor have a high-profile social media presence?

The question in the title of this post is prompted by this St. Louis Post-Dispatch article. The piece is headlined "Tweeting the law: St. Louis prosecutor gets praise and criticism," and here are excerpts:

She delivered her first tweet with gusto. “I know I’m getting to this party 5 years late but Hello Twitterverse!” Circuit Attorney Jennifer Joyce announced in a March 23, 2011, post, adding a #JMJ stamp to make it official.  From there, the St. Louis prosecutor — who until then preferred sticking to the confines of the courthouse — developed a loud and unabashed presence on the social networking site.

With daily, sometimes rapid-fire online messages, Joyce began announcing charges and sentences.  She expanded to Facebook, telling the stories of crime victims and neighborhood action.  She eschewed traditional news releases in favor of teasers linked to court documents on her website.  She rallied citizens and threatened criminals.

“Bad guys take heed: Lafayette Park folks WILL catch you & they WILL go to court to get your bond raised. Saw this today!” she tweeted in June 2011.  And in January: “Carl Barnes & David Townes came to City to steal dumpsters. Both now charged with felony stealing. Stay out of our town! #WELOVESTL.” 

At last check, Joyce had tweeted 2,557 times to 1,628 followers, and 917 people had subscribed to her office’s Facebook page.... [E]ven in the age of online everything, it is less common to see a prosecutor so prolific on these sites, and mixing personal with professional.

While Joyce has been praised for engaging the community, her musings — particularly the tone of them — have raised eyebrows in the buttoned-down legal community, where lawyers’ comments are bound by strict limits to protect the rights of the accused.  Twice this year, Joyce’s courtroom opponents have complained to judges in formal motions that she crossed the line....

On her Twitter page, Joyce juxtaposes case information with shout-outs to her husband and cheers and jeers on Notre Dame game days.  After reaching the 1,000-follower mark, she tweeted about a cupcake giveaway.  She praises police and neighborhood groups who show up to court. “It is very powerful in informing and engaging citizens to get involved in public safety issues in their community,” she explained.

Her message to criminals is pointed: Shape up or ship out.  “Stanley Bailey assaulted an 80 yr old lady & stole her purse,” she tweeted on Oct. 25.  “He now has 20 yrs to ask himself why he’s a jerk.”  In another: “Don’t threaten police with a weapon, unless you want to be shot AND charged with a felony (unlawful use of a weapon), like Carl Evans was today.”

The Facebook page, a collaboration of Joyce and her staff, has narratives of closed cases, crime-fighting tips and profiles of police and court players.  Those narratives are often dramatic, with talk of “bad guys” and the innocent victims they prey upon.  In one poignant exchange, she explained to the family of a traffic fatality why she could not file a manslaughter charge....

Joyce is not the only top prosecutor who tweets or finds friends on Facebook.  Charles Hynes, district attorney from Brooklyn, N.Y., and Craig Watkins, his Dallas counterpoint, are among many with a more neutral tone, offering posts that function as mini news releases about events and appearances.  They rarely talk about specific cases.

One exception is Ray Larson, district attorney in Lexington, Ky. Joyce has said on her Twitter page: “If you like tweeting prosecutors, you’ll love @raytheda. Much spicier than me!”  Larson displays a Superman-like emblem and likes to comment about “thugs, hoodlums and outlaws.”

Michael Downey, a lawyer specializing in ethics at the Armstrong Teasdale firm in St. Louis, said everyone should beware of the basic hazards of social media: It’s easy to be impulsive, the message reaches a broad audience and the words linger to haunt the writer later.  Beyond that, Downey emphasized, lawyers — especially prosecutors — have a special obligation not to publish something that might influence a jury and deprive a defendant of a fair verdict. “It’s a huge potential problem,” he said, and one that pops up increasingly. Ethics violations could lead to reprimand, suspension, or in more serious cases, disbarment....

Mary Fox, head of the public defender’s office here, complained in a court motion after prosecutors opposed a gag order in the Ronald Little rape case.  Fox said Joyce’s tweeting, in general, had created “a heightened public condemnation of the accused.” That wording reflects a Missouri ethics rule on pretrial publicity.  Fox wanted to prevent any tweets about Little’s case.  The motion never received a ruling.

In June, an assistant public defender asked a judge to dismiss rape charges against his client, David Polk, after Joyce tweeted about it on the eve of trial.  Joyce continued to tweet through jury deliberations, noting that she could never defend a child rapist.  The judge denied the motion, but did question jurors extensively about whether they had seen the tweets, according to Fox....

Joyce said she is careful not to include her opinions on active cases, speaking only to what is in the public record.  The ethics rule is posted on her website, and her Facebook page reminds that defendants are innocent until proven guilty.  She noted no ethics complaints have been filed against her.  “I’m an elected official and I’m put in this position by the people of St. Louis, and I think they have an expectation that I’m going to inform them of what’s going on,” Joyce said. “To suggest I don’t have the right to speak to my bosses — the citizens of the city of St. Louis — is kind of crazy.”

ABA Journal looking for nominations for its Blawg 100

I received via e-mail this request from the ABA Journal:

We're working on our annual list of the 100 best legal blogs, and we'd like your advice on which blawgs you think we should include.

Use the form at this link to tell us about a blawg ... that you read regularly and think other lawyers should know about.  Or if you don't have particular blawgs in mind but think blawgs from a certain practice areas should be represented in the Blawg 100, you can use this form to let us know. 

Send us a separate message for each blawg you want to support.  We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy — you have a 500-character limit. 

Friend-of-the-blawg briefs are due no later than 7 p.m. ET on Friday, Sept. 7, 2012 [and] by all means tell your readers about Blawg 100 Amici and invite them to send us messages....

Hearty welcome to a timely new blog: "Juvenile Justice Blog"

I am very pleased to welcome to the blogosphere Juvenile Justice Blog, a fantastic looking new blog by UNC law prof Tamar Birckhead.  Here is how Tamar, whose blog bio is available here, describes her new blog creation:

The purpose of this blog is to provide a central source for the latest news, information, scholarship, and commentary on issues related to juvenile justice in the United States.

It is intended for lawyers, academics, advocates, students, and all others interested in juvenile court practice, the fair sentencing of youth, and the criminalization of poverty, among other related topics.

If you would like to see something posted that fits within these themes, please email the blog administrator at [email protected].  As this is a work in progress, I welcome your thoughts, suggestions, and comments.

There is already a lot of great content on JJB.  And with a big SCOTUS ruling on the constitutional of juve LWOP coming wihtin the week, I am sure to make JJB a daily read in the weeks ahead.

Huge thanks to Prof Bibas for his Machinery (and seeking feedback on guesting)

I am so very grateful  pleased that Professor Stephanos Bibas served as such a dynamic guest-blogger to discuss sentencing issues raised by his terrific new book, titled "The Machinery of Criminal Justice," which was just published by Oxford University Press and is available here.  I will in this post link below to my introduction and then to all seven of Stephanos's substantive posts:

• Professor Bibas guest-blogging on "The Machinery of Criminal Justice" 
• Colonial-Era Mercy
• Reintegrative Punishment
• Hiding Punishment Behind Prison Walls
• The Decline of Mercy
• From Idle Imprisonment to Work
• Military Service, Education, Treatment
• Collateral Consequences and Reentry

I hope that readers enjoyed this series of posts as much as I did.  I also hope folks will take a moment to add thanks for Stephanos's efforts via the comments and that folks will let me know if I should try to make a habit of soliciting folks to guest-blog about a recent sentencing project or to develop a series of posts around a particular topic.

Notable new blog on wrongful convictions

Via e-mail, I received this note from Professor Mark Godsey concerning a notable new criminal law blog:

I wanted to let you know that several of us involved in the Innocence Movement launched a new blog today, The Wrongful Convictions Blog.  The web address is www.wrongfulconvictionsblog.org, or you can just click the link above.

The purposes of the blog are to (1) provide one place where you can go to get all the news and info about wrongful convictions, and (2) foster discussion, debate, and learning.  You will see that we have contributing editors from all over the world, thus the tagline is:  "Addressing Wrongful Conviction and Actual Innocence Issues in an International Forum."  There is a place for comments and debate on each post....

The blog will involve more than just news and links.   We will also have frequent commentaries/editorials on various topics, such as the commentaries up now about forensic odontologists attempting to validate their "science," the state of junk science generally, reacting to prosecutorial misconduct, and conviction integrity units at prosecutor's offices.

A quick review of the new blog shows right away that there will be lots of notable and important internation perspectives covered in this space.  That reality, together with the terrific group of persons involved with the blog, means I will be sure to make this new resource a regular stop in my blogosphere travels.

Many hats for this road warrior...

over the next few days. I have my policy work hat on today as I head to the US Sentencing Commission to testify this afternoon. Then I will be wearing a real lawyer hat in DC briefly tonight before changing into an ivory tower outfit as I head down to Miami to participate in a two-day death penalty conference.

I expect blogging will be light through the weekend, though I hope to have some mid-travel reports to share.

UPDATE Friday mid-day: I am on-line with my laptop for the first time since Thursday AM, and I have so much to say about the remarkable USSC hearing that took all day on Thursday.   I fear I won't have time to share post-hearing comments until the weekend, but I recommend all federal sentencing fans find the time to review the testimony from the hearing (linked via the official agenda here).

I am now in sunny and warm Miami being hosted at this amazing symposium on "The Future of the Death Penalty."  Perhaps later tonight (or perhaps not), I will tear myself away for a little late-night blogging.

Lots of sentencing news of note via The Crime Report

As I have said before, and as I am happy to say again, all sentencing law and policy fans should be sure to make The Crime Report a daily read.  To reinforce this point, check out just some of these new posts from over there in the last 24 hours:

• CA Inmates In Shift Have More Serious Mental Ills Than Expected

• Restrictions Drive Sex Offenders to Live in Motels, Trailer Parks

• Experts Recommending Reforms to Oklahoma Offender Supervision

• CA Gov. Brown Again Proposes to Close State Youth Rehab Units

Seeking guest posts for 2011 sentencing "Year in Review" posts

When time and energy permits, I have had a habbit around the holiday season to develop some "Year in Review" kinds of posts for this blog (often with always-fun Top 10 lists).  Examples can be found from 2004 here and from 2005 here and here and from 2006 here and from 2007 here and from 2009 here and from 2010 here (I am not sure what the heck happened in 2008).

Time and energy may allow another such post in the weeks ahead, but this year I thought it might be fun and informative to encourage interested folks to send me fodder for guest posts in the "Year in Review" spirit.  I neither expect (nor really even desire) folks sending me comprehensive lists on all sentencing fronts, but I would especially welcome targeted year-end review (or even next-year preview) posts on particular topics. 

With luck, lots of different folks can and will send me via e-mail some (cut-and-paste- friendly) copy that reviews, say, the federal sentencing year or the drug sentencing year or the celebrity sentencing year or the legislative developments of the year or whatever else you might be interested in sending my way. 

Once again, I would like to thank the ABA and the criminals and their lawyers...

As I have said before and will say again, it is always an honor just to be nominated.  But, since the ABA's Blawg list nominations are not generally made public, it is even more exciting to win again -- for the fifth year in a row, I believe -- a (coveted?) place on the ABA's list of the best legal blogs. 

This report from the ABA Journal, titled "The 5th Annual ABA Journal Blawg 100," reports the background and the list:

On our 5th birthday, you’ll see some familiar faces at the party: bloggers who’ve been on our list in years past.

But 2011 also brought along a lot of newcomers, and we’re delighted that so many RSVP’d our invitation to nominate their favorites.  We received more than 1,300 Blawg Amici this year, and that made for a hard time narrowing the field to 100 law blogs in 12 categories.

As usual, we couldn’t help mixing things up a bit.  In print, you’ll find the blogs in alphabetical order, color-coded by category. And as always, you can vote for your favorites online through Dec. 30 at ABAJournal.com/blawg100.

Here is how this site gets described:

Sentencing Law and Policy: sentencing.typepad.com

Ohio State law professor Douglas Berman notes congressional hearings, scholarship and general trends related to sentencing, and sometimes handicaps the sentences that can be anticipated by those convicted in high-profile criminal cases. Unlike most criminal law bloggers, he writes with a fairly objective tone.

Speaking fairly objectively I kind of like this description of my writing: "with a fairly objective tone."  I wonder if all readers would agree.  And, via this ABA page, one can click through to see a bunch of other criminal law blogs making the list that, apparently, write in a fairly subjective tone.

So very thankful for so much this Thanksgiving

I have so much to be thankful for on this Thanksgiving 2011, I do not even know where to start.  I do know that today is an especially good day to be thankful that most Americans will spend today reflecting on how much they have to be thankful for in this wonderful nation rather than spending so much time complaining about this or that.  

I know that I (and many others) do a fair share of complaining on this blog, but that goes with the lawyering territory: I often tell my law students that one of the greatest aspects of being a lawyer is that you get paid for complaining.  But, I am thankful that I have been successful as a professional complainer, and I hope readers know that much of my complaining on this blog about US sentencing law and policy is based in my belief that the greatest nation in human history can and should always be striving to be even greater in its commitment to human freedom and to fostering a national environment that enables all to enjoy life, liberty and the pursuit of happiness.

Sentencing Mad Max finally able to say thanks

After a whirlwind sentencing road warrior three days which included three amazing sentencing get-togethers in three different locations (in three different federal circuits), I am finally back at my home office with a few free moments that finally allow me to say a hearty thanks to all the amazing people who helped put together three amazingly effective and engaging events.  My head is still swimming with all that I learned at each of the events; I am also still giddy not only about victories by the Cards and the Buckeyes while I was a road warrior, but also about the fact that I was able to get out of Philly and home to Ohio in the midst of the October(!?!) snowstorm that has hit the East Coast this weekend.

So much happened at each of the events — and so many people were responsible for treating me so well — that I am certain I will not be able to effectively blog about everything worthy of commentary nor will I be able to adequately thank and congratulate all the lovely people responsible for my terrific experiences.  I can here report, however, something that ought to especially intrigue regular blog readers: for the very first time, I finally met the man behind Supremacy Claus in person (at the Penn Law Review event on Saturday)!

Sentencing road-warrior...

is what I am calling myself as I travel to three distinct locales to participate in four distinct sentencing events over the next 55 hours.  I fear blogging will be very light during this time, though I am hoping to have a little down time to report on any major sentencing news before the weekend.

Great new Rutgers resource reviewing crim books

Via Professor Stuart Green, I am please to be able to relay this notice concerning what looks like a great new criminal justice researcher and reader resource:

Rutgers Law School-Newark and the Rutgers School of Criminal Justice are pleased to announce the launch of a new website called Criminal Law and Criminal Justice Books.   We aim to publish high-quality, timely, and concise on-line reviews of important and interesting new books in criminal law, criminal procedure, and criminal justice. 

Among the great looking new books subject to great looking reviews are:

• Convicting the Innocent: Where Criminal Prosecutors Go Wrong
• The Boundaries of the Criminal Law
• Retributivism: Essays on Theory and Policy

An Independence Day open thread seeking comments on liberty and freedom in the US

Blogging has been light this holiday weekend as I have been enjoying sun, family, fireworks, tennis, golf and lots of company (not necessarily in that order). But the morning of July 4 gets me to my computer for a few minutes to link to my prior Independence Day blogging and to urge readers to use this space to comment on the state of liberty and freedom in the United States.

Prior July 4 posts:

• 2010: Celebrating our declaration of rights to "Life, Liberty and the pursuit of Happiness"
• 2009: What to the American imprisoned is the Fourth of July? 
• 2008: Celebrating liberty in the country leading the world in incarceration rates
• 2007: House hearing planned to examine Bush commutation
• 2006: A holiday retrospective on Blakely fireworks
• 2005: Celebrating liberty, Blakely-style

In Massachusetts to talk about federal sentencing at my alma mater

I am about to go off-line for the day because I have the pleasure of spending the afternoon and evening in (rainy) Cambridge, Massachusetts because of a kind invitation to participate in an event organized by the Harvard Law School Chapter of the American Constitution Society."  Here is the official event announcement:

Tuesday at 7PM in Ropes Gray (Second Floor of Pound Hall) at Harvard Law School:

Judge Nancy Gertner & Professor Douglas Berman

 on

“The New Sentencing Regime — Or Not!”

Come join two amazing speakers for dinner and a conversation about the future of sentencing in the federal system, touching on issues ranging from the crack/cocaine-powder disparity to child pornography, immigration, and white collar crime.  Judge Nancy Gertner is one of the nation’s leading progressive district judges and will join the HLS faculty next fall as a Professor of Practice.  Professor Douglas Berman, HLS ’93, maintains the Sentencing Law and Policy Blog, edits the Federal Sentencing Reporter, and regularly participates in high-profile sentencing litigation throughout the country.

I think this event is open to the public, so if you are in Cambridge and want a sentencing-related excuse to get out of the rain, head up Mass Ave this evening.

For those listening to the federal sentencing AFDA web program today...

apologies for the technical glitch.  Apparently, too many people tried to sign on to the program at once, and we managed to crash the Adobe server (which said it could handle 500 folks).  I am flattered to discover more than 500 people tried to log-on hear what I had to say with the help of the AFDA, but I am really sorry that we got cut offjust over half-way into the 90 minute program.

Thankfully, the folks at AFDA are going to put this program together again next week so I can finish discussing all topics we had planned to cover.  As of this writing, the plan is to try again next week (Wednesday, Feb. 23) at 12noon EST.