Sentencing Law and Policy

For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served

If anyone wants a good example of the federal sentencing guidelines not doing an effective job of guiding a federal sentencing judge, consider the specifics of the upcoming high-profile sentencing of Caroline Ellison.  This CNBC story about a sentencing filing provides some of the background, as well as helpful links to some key court documents:

Lawyers for Caroline Ellison, the star witness in the prosecution of FTX founder Sam Bankman-Fried, are recommending no prison time for their client’s role in the implosion of the crypto empire that was run by her former boss and ex-boyfriend.

In a court filing Tuesday night, the attorneys said that, at most, Ellison should be sentenced to time served and supervised release because of her swift return to the U.S. from FTX’s Bahamas headquarters in 2022 and her choice to voluntarily cooperate with the U.S. attorney’s office and financial regulators in helping them understand what went wrong at FTX and sister hedge fund Alameda Research. 

Judge Lewis Kaplan, who presided over Bankman-Fried’s case, cited Ellison’s testimony when he decided in March to sentence the FTX founder to 25 years behind bars.  Ellison, who ran Alameda Research, agreed to a plea deal in December 2022, a month after FTX spiraled into bankruptcy. Unlike Bankman-Fried, who was convicted of all seven criminal fraud charges against him, Ellison pleaded guilty to conspiracy and financial fraud charges, rather than go to trial.

The Tuesday filing also refers to the recommendation of the court’s Probation Department that Ellison be given a sentence of “time served with three years of supervised release” as a credit to her “extraordinary cooperation with the government” and “her otherwise unblemished record.”  Lawyers added that the department’s presentence report, which referenced numerous character testimonials speaking to Ellison’s ethics and integrity, also recommended that she not be fined.  “Caroline poses no risk of recidivism and presents no threat to public safety,” the filing says. “It would therefore promote respect for the law to grant leniency in recognition of Caroline’s early disclosure of the crimes, her unmitigated acceptance of responsibility for them, and — most importantly — her extensive cooperation with the government.”

In the filing, FTX CEO John Ray, who has been guiding the crypto firm through bankruptcy proceedings, describes Ellison’s cooperation as “valuable” in helping his team protect and preserve “hundreds of millions of dollars” in assets.  He added that she has worked with his advisors to provide information regarding private keys to cryptocurrency wallets that contain “estate assets, DeFi positions, FTX exchange internal account information, the use of third-party exchanges for pre-petition trading, and pre-petition auditing practices.”

The 67-page document describe large swaths of Ellison’s life, starting from her earliest days in Boston and stretching into her protracted and troubled romance with Bankman-Fried. In that time, she “moved around the globe at his direction, first to Hong Kong and later the Bahamas,” and “worked long, stressful, Adderall-fueled hours,” the filing says.  Bankman-Fried forced Ellison into a sort-of isolation, culminating in her moral compass being “warped,” the lawyers say. At his direction, Ellison helped “steal billions,” all while living “in dread, knowing that a disastrous collapse was likely, but fearing that disentangling herself would only hasten that collapse.”

“Bankman-Fried convinced her to stay, telling her she was essential to the survival of the business, and that he loved her,” all “while also perversely demonstrating that he considered her not good enough to be seen in public with him at high-profile events,” the filing says.

Though I have only had a chance to briefly scan Ellison's sentencing memorandum, I noticed it included no objection to the calculated guideline range, which produced "the Guidelines sentence of life imprisonment, reduced to the statutory maximum of 1,320 months" (110 years).  As guideline mavens know, the massive "loss" in this case drove Ellison’s guideline calculation to produce a recommended LWOP sentence; as federal sentencing mavens know, pleading guilty and providing "extraordinary cooperation with the government" is one critical way a defendant can seek to get a judge to ignore the guidelines at sentencing.

It will be interesting to see if the feds ask for any prison time here, but I am quite sure they will not be urging Judge Kaplan to follow the guidelines.  After all, the feds urged a sentence well below LWOP even for Sam Bankman-Fried even though his guideline calculation was literally "off the grid" and had the highest calculated offense level I had ever seen.  White-collar prosecutors and defense attorneys have long known, of course, that guideline calculations in high-dollar, white-collar cases often amount to a kind of Kabuki theater amounting to little of real substance.  That reality is surely on display, yet again, in the FTX sentencings.

Some prior related posts about SBF's sentencing

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• 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"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds

"Fines, Forfeitures, and Federalism"

The title of this post is the title of this recent article I just came across via SSRN and authored by Jessica Asbridge. Here is its abstract:

Fines are ubiquitous in modern society, and they are imposed for both serious crimes and minor civil wrongs.  The U.S. Supreme Court recently recognized that the Constitution’s Excessive Fines Clause applies to the states, but that decision raises previously unexplored questions as to how to enforce the Clause’s protections in the states.  A key question is what role, if any, federalism should play in crafting doctrinal rules that apply the Clause’s protections to state and local fines and related property forfeitures.  This Article is the first to accord in-depth treatment to that important question.

The extent to which federalism principles should apply does not have an immediate and obvious answer.  On the one hand, federalism plays a significant role in the Court’s jurisprudence on the Cruel and Unusual Punishment Clause.  The Court therefore generally takes a highly deferential approach in reviewing sentences of imprisonment.  Lower courts have applied that same deferential review in the context of the Excessive Fines Clause.  On the other hand, fines and forfeitures are unlike other forms of punishment — such as prison — because they are often used as a revenue source for state and local governments, creating a conflict of interest for state and local decision-making bodies.

To address this conundrum, this Article makes the novel argument that the Court should look to the exactions doctrine under the Takings Clause, which often implicates similar concerns of government self-interest and overreaching. Exactions and excessive fines are conceptually similar, but scholars thus far have overlooked the close relationship between them.  The exactions doctrine gives minimal weight to federalism concerns, and it applies a heightened-scrutiny standard that is well suited to the excessive fines context.  Indeed, differences between federal practice and state and local practices as to fines suggest that discretionary state and local fines should be subject to closer constitutional scrutiny than federal fines.  As a recent example illustrates, such heightened scrutiny would ensure that the Excessive Fines Clause is not merely a parchment barrier, while still accounting for variations between states and localities in terms of their communities’ values and needs.

A reminder that kicking a cat down the road can get you sentenced to years in a federal prison

I am a big animal lover, especially cats, and so I was struck by this notable NBC News story about a federal sentencing today in Texas for kicking a cat.  The story details that this cat kicking was quite extreme and horrific:

A Texas man on Tuesday was sentenced to more than three years in federal prison for kicking a cat “as if kicking a football field goal,” in a case of abuse that was recorded and shared on social media, prosecutors said.

Donaldvan Williams, 30, was sentenced to three years and four months in prison, the U.S. Attorney’s Office for the Eastern District of Texas said in a statement....

He pleaded guilty in October to animal crushing and aiding and abetting in connection with the Oct. 15, 2021, incident in the parking lot of a Beaumont apartment complex, according to court records.  The cat was foaming at the mouth and convulsing as if it was poisoned, according to a factual basis of the crime filed in court following a plea deal....

The kick was recorded by another man, Decorius Mire, who encouraged Williams to kick the cat, prosecutors said. Mire posted the video to social media. Mire was sentenced last year to 18 months in prison....

Williams was charged with kicking the cat, but the animal’s torture did not end there. Someone else, whose identity was not known when the case was presented to a grand jury, poured an accelerant on the cat and set it on fire, the indictment against Williams says. The animal running away on fire was also recorded on video.

Each man's guilty plea dealt with kicking the cat and recording it, not the animal being set on fire, records show. Court records in the cases don’t appear to say if the cat lived or died.

I am inclined to suspect that the defendants here may have had some criminal history and/or were linked to the further torture of the cat to drive these sentencing outcomes.  Still, I suspect these cases may involve record-setting sentences for cat kicking.  Interestingly, almost exactly a decade ago, the New York Times a piece headlined "Should You Go to Jail for Kicking a Cat?".  That piece was a follo up to prompted by this NY Times piece headlined "He Kicked a Stray Cat, and Activists Growled." 

Rounding up some discouraging recent prison news stories from coast to coast

A helpful reader flagged for me a recent story about inmate deaths, and that reminded me that a number of discouraging prison stories had recently caught my eye.  Here is a partial round-up:

From the Chicago Cruisader, "New research links medical copays to reduced healthcare access in prisons"

From the Columbus Dispatch, "Ohio shouldn't put kids under age 14 in prisons, report says"

From the Milwaukee Courier, "Short on Fixes for Prison Problems, Wisconsin Weighs Independent Oversight"

From the Los Angeles Times, "Widespread sexual abuse of women in two California prisons draws federal investigation"

From Reason.com, "A Federal Prison Was Warned About Synthetic Marijuana. Then Inmates Started Overdosing."

From Reason.com, "Federal Judge Rules Inmate Death Records Can Remain Secret Because They Could Embarrass Prison Officials"

From WFSU, "Incarceration deaths are increasing across the country -- including in Florida"

"Justice Theater in the Criminal Law Curriculum"

I just came across this recent article about legal education that was posted to SSRN earlier this year and is authored by Gregory Brazeal. (I wrote a little on this topic more than 20 years ago, and I still view legal education on crime and punishment matters to be important underexplored issues.)  Here is this new article's abstract:

For the last half-century, law students have been required to take a criminal law course that ostensibly trains them to think critically about the justifications for criminal punishment.  The same students have then gone on to serve as central actors in a system of mass incarceration that millions of Americans today view as profoundly unjust.  How did this happen?

A number of legal scholars, notably including Alice Ristroph in her 2020 article “The Curriculum of the Carceral State,” have argued that the traditional criminal law curriculum has played a role in creating and reproducing the practices of mass incarceration.  This article agrees, and focuses on two concrete critiques, alongside two corresponding curricular reforms.

First, criminal law courses routinely introduce the field in part by discussing a series of theoretical “justifications of punishment” such as retribution, deterrence, incapacitation, and rehabilitation.  These discussions often provide students with tools for arguing in favor of punishment, and in particular incarceration, without providing relevant empirical evidence that shows the limits of the theoretical justifications.  Students are invited to focus on the theoretical benefits of incarceration without being adequately exposed to the negative effects of incarceration as it is actually practiced in the United States today.

The tradition of introducing criminal law through the discussion of theoretical justifications for punishment should be abandoned.  Instead, the article proposes beginning the criminal law course with an empirically informed discussion that frames criminal law as one response among many to the social problem of public safety.  Second, the bulk of most criminal law casebooks consists of excerpts from judicial opinions.  These excerpts tend to describe harmful acts carried out by defendants without providing adequate context for thinking seriously about justice.  The excerpts send the message that criminal harms result from isolated, individual choices by bad people, rather than being conditioned by situational and other factors, including policy choices by the state.

The article proposes replacing criminal law case excerpts with a method of instruction based on case studies, similar to the case study method used in many professional schools.  Case studies could provide students with more context for understanding criminal harms, and in particular could better equip future prosecutors to serve as “problem-solver[s] responsible for considering [the] broad goals of the criminal justice system,” as the ABA Criminal Justice Standards demand. In the coming years, the arrival of the NextGen bar exam will offer an occasion to reconsider how criminal law is taught in the United States.  Rather than continuing to train students in ways of thinking that facilitate mass incarceration, the curriculum should be changed. 

Former Prez Trump goes all in on marijuana reform ... perhaps as a pregame strategy for big Prez debate

I have been covering over at my other blog statements by former Prez Donald Trump about marijuana reform: in this post nine days ago, I noted the social media post seemingly supportive of Florida's marijuana legalization ballot initiative; in this post last week, I noted further comments suggesting his likely support for federal rescheduling.  Now, via this latest social media posting from late last night, Trump has made it quite clear that he is all-in on both state and federal marijuana reforms: 

As a Floridian, I will be voting YES on Amendment 3 this November.  As President, we will continue to focus on research to unlock the medical uses of marijuana to a Schedule 3 drug, and work with Congress to pass common sense laws, including safe banking for state authorized companies, and supporting states rights to pass marijuana laws, like in Florida, that work so well for their citizens.

These policy positions are quite interesting and significant in their own right, but it is also notable that Trump starts his latest social media posting of his pro-reform positions with this notable preamble: "As I have previously stated, I believe it is time to end needless arrests and incarcerations of adults for small amounts of marijuana for personal use."  This sentiment reinforces my prior stated view that Trump, ever the populist, understands that decriminalizing marijuana for personal use is very popular.  But it also now has me thinking that Trump is gearing up to attack VP Kamala Harris at their coming debate over her record as a local prosecutor jailing persons for low-level marijuana offenses.  

Of course, there is a notable history of Harris being attacked on her marijuana record by Tusli Gabbart back in 2019.  This new NBC News article talks about that moment and how "Gabbard won loud, raucous cheers and applause" after stating that Harris "put over 1,500 people in jail for marijuana violations and then laughed about it when she was asked if she ever smoked marijuana."   And, of course, Gabbart has recently endorsed Trump and is apparently part of his debate-prep team:

Asked about Gabbard’s involvement in debate preparations — such as they are in Trump world — a Trump campaign official said she had been helpful getting Trump to think about the pivot from attacking Harris to highlighting his policies or what he would do differently.  That included talking through how to take things one step beyond the attack lines he gives at rallies into cohesive debate answers.  The campaign official said the Trump team had been trying to get Gabbard involved for a while. “Tulsi Gabbard whipped Kamala Harris’ butt on the debate stage,” Trump spokeswoman Karoline Leavitt said. “She’s offering her advice to President Trump ahead of Tuesday’s debate.”

Interesting times, and likely also reflective of the fact that marijuana reform is especially popular with many young voters that Trump seems eager to court.  And, for anyone thinking more broadly about criminal justice issues and the coming Prez debate, the Sentencing Matters Substack team has a new post for you: "Presidential Debate: Agreements Call for Deeper Probing on Crime and Punishment."

Some recent related posts:

• Former Prez Trump articulates forceful support for state marijuana legalization, federal rescheduling and banking reforms
• Former Prez Trump suggests he is supportive of marijuana legalization in Florida and elsewhere
• Does former Prez Trump's praise for medical marijuana suggest he would robustly support federal marijuana rescheduling?
• Ever the criminal justice reform populist, former Prez Trump signals support for marijuana legalization in Florida and elsewhere 

Spotlighting new book that spotlights First Step Act compassionate release and sentence reconsideration

I was pleased to see that Adam Liptak today committed his Sidebar column in the New York Times to federal compassionate release issues in conjunction with US District Judge Frederic Block's new book  on the topic, "A Second Chance: A Federal Judge Decides Who Deserves It."  I recommend both the full NYTimes article and the full book.  The subtitle of the article serves as a kind of summary of both: "In a new book, Judge Frederic Block, who has served for decades, urged courts to vindicate the promise of the First Step Act, which lets prisoners ask for compassionate release from their sentences."  And here are excerpts from the article:

Judge Frederic Block is 90, and he has had decades to consider what counts as his gravest responsibility. “Look,” he said over the phone the other day, “the most important part of the job of a district court judge is sentencing.”...

Still, sometimes a sentence that made sense when it was imposed can look like a bad fit over time. Prisoners grow old or get sick.  The laws under which they were sentenced change.  Others who committed the same crimes get starkly different prison terms. Doubts arise about guilt.  On occasion, everyone agrees that the prisoner has been thoroughly rehabilitated.

In a timely book to be published next week, Judge Block makes a vigorous case for giving judges wide discretion to revisit sentencing decisions, describing cases he has encountered and urging states to adopt a more lenient approach.

The book, “A Second Chance: A Federal Judge Decides Who Deserves It,” arrives as federal courts are deeply divided on the question, one prompted by an extraordinary 2018 law, the First Step Act.  The law, enacted by enormous bipartisan margins and with President Donald J. Trump’s backing, overhauled federal sentencing.  A major feature of the law lets prisoners file motions for compassionate release in “extraordinary and compelling” circumstances.

“The First Step Act just really changed the sentencing landscape in the United States, because we are getting these motions every week,” said Judge Block, who was appointed by President Bill Clinton.  “As I speak right now, I probably have two new ones today,” he said. “Understandably, the district court bench will be inundated with them.  Because if you’re in jail and you have the opportunity to make an application asking the district court judge to reduce your sentence, you want to do it.”

But what counts as “extraordinary and compelling” is deeply contested.

US Sentencing Commission releases FY 2024 third quarter sentencing data

The US Sentencing Commission last week released on its website its latest quarterly data report, this one labelled "3rd Quarter Release, Preliminary Fiscal Year 2024 Data Through June 30, 2024."  These new data with the latest accounting of federal sentencing trends helps to further define the new normal in federal sentencing patterns.  As I have noted before, and as reflected in Figure 2, the quarters just prior to the COVID pandemic averaged roughly 20,000 federal sentencings per quarter; the "new normal" over the past year is roughly 15,000 and 16,000 total federal cases sentenced each quarter (and Figure 2 shows that declines in immigration sentencings accounts for the decrease in overall cases sentenced).

As I have also noted before, the other big COVID-era trend of historically large numbers of below-guideline variances has persisted for years now (as detailed in Figures 3 and 4). I continue to suspect this trend is mostly a facet of the different caseload and case mixes.  Interestingly, in the most recent two quarters, the official data show a small but notable uptick in the percentage of all federal sentences that are imposed "Within Guideline Range."  But it remains the case that a majority of federal sentences are being imposed outside the guideline range (for a wide array of reasons) than are being imposed inside the calculated range.

As I have also flagged before, the modern USSC's data on drug sentencing reflected in Figures 11 and 12 remains fascinating. These figures show, for the last three quarters, that over 46% of all federal drug sentencings involved methamphetamine and the average sentence for all those meth cases is well over eight years in prison.  Also notable is how few marijuana (2.7%) and crack cocaine (4.0%) cases are being sentenced in federal courts.  

As always, there are more big and small stories to mine from the latest USSC data.  But the relative consistency of the system, even with lots of notable recent reforms by the Commission and talk of more, is my consistent take away from these valuable data runs. 

Flagging a number of notable recent Inquest essays

It has been some time since I have highlighted items from Inquest, "a decarceral brainstorm," in part because the site has been recently running essays mostly focused on policing issues.  But I noticed a number of more punishment-focused pieces, and here I will  flag a handful of newer pieces sentencing fans may want to check out:

By Paul Butler & Cristian Farias, "Returning to Freedom: A PBS series on reentry is exposing audiences to how people leaving prison grow, heal, and thrive despite their past." By

By Joseph Margulies, "A Forgiving Society: Only by approaching each person as a member of society—rather than an outcast—will we begin to unwind the punitive turn of the past sixty years."

By Raj Jayadev, "People-Powered Defense: Participatory defense allows families and communities to protect their own in courtroom spaces that have long robbed them of power."

By William Kissinger, "Squinting in the Sunlight: Most reentry programs assume a person who is able to work and live on their own. Those of us who are older don’t have that kind of freedom."

By Stephen Wilson, "Unsettled People: Prison transfers are routinely used to punish, disorient, and isolate incarcerated people, disconnecting them from family, friends, community, and all sense of place."

"Recidivist Organizational Offenders and the Organizational Sentencing Guidelines"

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

Despite recent Congressional hearings and public attention, the question of how to fairly and efficiently punish recidivist organizational offenders remains unresolved.  Any discussion regarding the most optimal legal response to recidivist organizational crime is incomplete without a solution accounting for the use of organizational deferred prosecution agreements ("DPAs") and non-prosecution agreements ("NPAs").  These tools allow criminal defendants to resolve charges without sustaining convictions that attach to the defendants' criminal records, and they are used often in the organizational context.

This Article is the first to recognize that the federal sentencing scheme fails to promote deterrence and fairness in the context of organizational sentencing and is the first to offer a practical solution to this problem.  The federal sentencing scheme currently does not require an increase in an organizational defendant's sentence when the defendant previously executed DPAs or NPAs before its subsequent criminal conduct.  Yet the federal sentencing guidelines do require an increase in an individual defendant's sentence if the individual previously executed a DPA. Meanwhile, the existence of prior DPAs and NPAs is a hallmark of organizational recidivism that demonstrates an organization is more culpable than other organizational defendants.  Accordingly, this Article recommends that the Sentencing Commission amend the federal sentencing guidelines to require sentencing courts to increase organizations’ sentences based on prior DPAs and NPAs.  This Article offers specific amendments for consideration. Finally, until the sentencing guidelines are amended, sentencing courts can use tools already in place to begin imposing more fair organizational sentences.

Former Prez Trump's state sentencing date push to week of Thanksgiving

As reported in this New York Times piece, the "judge overseeing Donald J. Trump’s criminal case in Manhattan postponed his sentencing until after Election Day, a significant victory for the former president as he seeks to overturn his conviction and win back the White House."  Here is more from the start of the article:

In a ruling on Friday, the judge, Juan M. Merchan, rescheduled the sentencing for Nov. 26. He had previously planned to hand down Mr. Trump’s punishment on Sept. 18, just seven weeks before Election Day, when Mr. Trump will face off against Vice President Kamala Harris for the presidency.

While the decision will avert a courtroom spectacle in the campaign’s final stretch, the delay itself could still affect the election, keeping voters in the dark about whether the Republican presidential nominee will eventually spend time behind bars.

It is unclear whether sentencing Mr. Trump in September would have helped or harmed him politically; his punishment could have been an embarrassing reminder of his criminal record, but could have also propelled his claims of political martyrdom.

Justice Merchan’s decision came at the request of Mr. Trump, who had asked to delay the sentencing until after the election, partly so he had more time to challenge his conviction. Prosecutors working for the Manhattan district attorney, Alvin L. Bragg, who brought the case, had deferred to the judge, paving the way for at least a brief postponement.

UPDATE: I have now seen this letter released by Justice Merchan to explain his adjuornment decision. Here are a few key passages:

'This matter is one that stands alone, in a unique place in this Nation's history, and this Court has presided over it since its inception — from arraignmcnt to jury verdict and a plenitude of motions and other matters in-between.  Were this Court to decide, after careful consideration of the Supreme Court's decision in Trump, that this case should proceed, it would be faced with one of the most critical and difficult decisions a trial court judge faces — the sentencing of a defendant found guilty of crimes by a unanimous jury of his peers....

Unfoftunately, we are now at a placeirn time that is fraught with complexities rendering the requirements of a sentencing hearing, should one be necessary, difficult to execute.  Thus, in accordance with certain of the grounds submitted by Defendant and the reasons for adiournment provided by the People coupled with the unique time frame this matter currently finds itself in, the decision on the CPL § 330.30 motion and the imposition of sentence will be adjourned to avoid any appearance — however unwarranted — that the proceeding has been affected by or seeks to affect the approaching Presidential election in which the Defendant is a candidate.

On morning of scheduled federal trial, Hunter Biden attempts to enter an Alford plea

As reported here in the Washington Post, "President Joe Biden’s son Hunter tried to resolve his federal tax case Thursday as jury selection was about to begin, offering an Alford plea in which he maintains he is innocent but acknowledges that the prosecution’s evidence would likely result in a guilty verdict." Here is more:

Prosecutors objected to the proposal, which they had not been told of in advance.  U.S. District Judge Mark Scarsi is expected to decide this afternoon whether to adjourn the proceedings until Friday or give the two sides more time to come to agreement.

“I want to make crystal clear: the U.S. opposes an Alford plea ... Hunter Biden is not innocent, he is guilty," Leo Wise, an attorney working for special counsel David Weiss, told the judge. "We came to court to try this case.”

Biden’s attorney, Abbe Lowell, noted that Alford pleas are an option available to all criminal defendants — even though such plea agreements are relatively rare. “All over the U.S. people do this,” Lowell said.  "It’s not that [Hunter Biden] seeks special treatment, but that he gets the same rights as everyone who is charged.”

Weiss charged Biden last year on nine tax-related counts, accusing him of failing to pay at least $1.4 million in federal taxes from 2016 through 2019.  Three charges were felonies and six were misdemeanors.  They include failing to file and pay taxes, tax evasion and filing false tax returns. Weiss separately charged Biden last year with three felony gun counts in Delaware.  A jury convicted Biden on all three charges in June, and he is scheduled for sentencing in November.

The indictments came after a lengthy investigation into Biden’s business dealings while his father was vice president, which Republican lawmakers and former president Donald Trump have tried to use as evidence of corruption within the Biden family. No evidence has surfaced publicly to suggest any wrongdoing by Joe Biden.

The younger Biden has said he has undergone treatment for addiction and is no longer using drugs. While his addiction to crack cocaine was a central theme of his gun trial, the Los Angeles case is expected to delve into Biden’s lavish spending and sex life during that period — much of which he chronicled in his 2021 memoir. Among the accusations laid out in the nine-count indictment is that Biden wrote off money he paid sex workers as business expenses on his tax forms.

An Alford plea, named after a case North Carolina v. Alford, is a way for a defendant to register a formal admission of guilt toward charges they are facing while simultaneously maintaining their innocence. United States attorneys are only able to consent to Alford pleas “in the most unusual of circumstances” and consult with top officials at the Department of Justice before doing so, according to federal prosecution guidelines....

The president, who has made clear he thinks the criminal charges against his son are politically motivated, has said emphatically that he does not plan to pardon Hunter Biden’s criminal convictions. Some of Hunter Biden’s allies hope he will change his mind, however, and issue a pardon after the November election.

Just as Hunter Biden was beginning the day in court, the president was leaving the White House to travel to La Crosse, Wis., for an event touting his administration’s economic policies. From Air Force One, White House press secretary Karine Jean-Pierre reiterated that the president would not pardon or commute Hunter Biden’s sentence. “No," she told reporters on Air Force One. "It is still very much a no.”

UPDATE: This Politico article reports that Hunter Biden's guilty plea was entered this afternoon, though it appears it was just a standard open plea to the charges rather than an Alford plea:

Hunter Biden pleaded guilty Thursday to tax evasion and other tax crimes in an 11th-hour about-face that surprised prosecutors as a trial was about to begin....

The only remaining question now is how much prison time, if any, Biden will face. Shortly after Biden entered his guilty plea, U.S. District Judge Mark Scarsi scheduled his sentencing on the tax charges for Dec. 16. Biden is scheduled to be sentenced in the gun case in November.

Biden faces up to 17 years in prison for the tax charges, though experts say lighter sentences in similar cases are more common. Scarsi will consider Biden’s admission of guilt when he sentences him....

The plea was not part of a plea deal, meaning prosecutors did not promise to recommend a reduced prison sentence....  After Scarsi questioned the Alford arrangement and signaled he might seek further legal arguments on whether he should accept it, Biden conferred with his lawyers and entered a straightforward guilty plea.

<P>As Scarsi questioned Biden about the plea in open court, the judge stressed that he still had the authority to hand down a hefty sentence.  “With regard to sentencing, there’s no guarantees. You understand that?” Scarsi, an appointee of Donald Trump, asked....

Biden is scheduled to be sentenced on Nov. 13 in the gun case, where federal sentencing guidelines recommend up to 21 months in prison, though Biden could receive much less or even no prison time at all.  In the tax case, prosecutors alleged that Biden earned more than $7 million during the years in question and later plotted to fraudulently lower the taxes he owed on that income by falsely labeling trips and other luxury purchases as business expenses. They said he used the money to fund a lavish lifestyle filled with drugs, strippers and sports cars.

"Terminating Supervision Early"

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

Community supervision is a major form of criminal punishment and a major driver of mass incarceration.  Over 3.5 million people in the United States are serving terms of probation, parole, or supervised release, and revocations account for nearly half of all prison admissions.  Although supervision is intended to prevent crime and promote reentry, it can also interfere with the defendant’s reintegration by imposing onerous restrictions as well as punishment for non-criminal technical violations.  Probation officers also carry heavy caseloads, which forces them to spend more time on enforcing conditions and less on providing support.

Fortunately, the criminal justice system also includes a mechanism to solve these problems: early termination of community supervision.  From the beginning, the law has always provided a way for the government to cut short a defendant’s term of supervision if they could demonstrate that they had reformed themselves.  Recently, judges, correctional officials, and activists have called to increase rates of early termination in order to save resources, ease the reentry process, and encourage rehabilitation.  Yet despite all this attention from the field, there are no law-review articles on terminating supervision early.

In this Article, I provide the first comprehensive analysis of early termination of community supervision.  First, I recount the long history of early termination, from the invention of probation and parole in the 1800s to the Safer Supervision Act of 2023.  Next, I identify and critique recent legal changes that have made it harder for federal criminal defendants to win early termination of supervised release.  Finally, I propose the first empirically based sentencing guideline on terminating supervision early, which I recommend in most cases after 18 to 36 months.  If community supervision drives mass incarceration, then early termination offers a potential tool for criminal justice reform.

Prison Policy Initiative provides "Mass Incarceration 101: Resources to help students and teachers understand the carceral system"

Prison Policy Initiative have this timely new posting authored by Danielle Squillante with this full title: "Mass Incarceration 101: Resources to help students and teachers understand the carceral system: It’s back to school season, so we’ve curated information and tools for students and teachers to use when researching the carceral system."  The posting serves to highlight a number of PPI's major data reports, and it worth a full read.  Here is how it gets started:

Students and teachers are heading back to the classroom. In addition to math, science, and language arts, many will also focus on the criminal legal system and mass incarceration. Unfortunately for them, the carceral system operates like a black box, making it hard to study what’s happening inside the walls of prisons and jails. Fortunately, we have made it our business to make the data that does exist as accessible and understandable as possible.

To better support the work of students and teachers, we’ve curated a list of publications and tools they can use to better study the carceral system and that can serve as launchpads for further research.

Where to start: The big picture

To start any lesson on mass incarceration, you have to understand the U.S. doesn’t have one criminal legal system; instead, it has thousands of federal, state, local, and tribal systems that incarcerate a combined population of nearly 2 million people.

Our flagship report, Mass Incarceration: The Whole Pie, puts these pieces together to give the “big picture” of mass incarceration by explaining not only the scale of our carceral system but also the policy choices that have driven its expansion.  It provides the most comprehensive picture of how many people are locked up in the U.S., in what types of facilities, and why.  In addition to showing how many people are behind bars on any given day in the U.S., it goes on to bust 10 of the most persistent myths about prisons, jails, crime, and more.

Reviewing the state and challenges surrounding former Prez Trump's approaching state sentencing date

The New York Times has this lengthy new piece, headlined "In Deciding When to Sentence Trump, Judge Faces ‘Impossible’ Task," providing a reminder that former Prez Donald Trump is scheduled to be sentenced two weeks from today and all of issues surrounding that reality.  Here are some excerpts:

Justice Merchan has made a steadfast effort to approach the landmark case no differently than hundreds of others he has overseen.  But more than three months after a Manhattan jury convicted Mr. Trump on 34 felony counts of falsifying records to cover up a sex scandal, the veteran judge faces his greatest predicament: He must decide whether to sentence Mr. Trump as planned on Sept. 18 or wait until after Election Day, as Mr. Trump has requested.

Justice Merchan has already agreed to delay the sentencing once, and his upcoming decision — which will be made in the heat of a presidential campaign that has pitted Mr. Trump against Vice President Kamala Harris — will reverberate well beyond his Lower Manhattan courtroom.  The decision could influence not only the election, but American politics for years to come.   And it will almost certainly subject Justice Merchan to partisan second-guessing at a time when the nation’s faith in the judiciary has been shaken by the Supreme Court’s decisions on abortion, guns and other issues, as well as revelations about some of its justices’ own political entanglements....

While Mr. Trump has already been deemed a felon, if Justice Merchan postpones his sentencing until after the Nov. 5 election, the American people will vote without knowing whether Mr. Trump will spend time behind bars.  A delay would also reward the stalling tactics Mr. Trump has deployed throughout the case, and feed the very impression the judge has labored to dispel — that the former president is above the law.  Yet if Justice Merchan, a moderate Democrat who was once a registered Republican, imposes a sentence just seven weeks before Election Day, Mr. Trump will no doubt accuse him of trying to tip the campaign in favor of Ms. Harris....

“Whatever decision Judge Merchan makes will not only be the right decision, it will be driven by nothing other than that which occurred in the context of this case,” said Jill Konviser, a retired judge who has known Justice Merchan for more than 15 years.  “Donald Trump will be treated fairly,” she added.  “Of that, I am 100 percent sure.”...

After finalizing Mr. Trump’s sentencing date, Justice Merchan faces still more delicate decisions.  The judge has promised to rule this month on Mr. Trump’s request to throw out his conviction in light of a new Supreme Court ruling granting presidents some immunity from prosecution.  And, at some point, he will have to actually decide whether to put Mr. Trump behind bars.

Mr. Trump, the first president to become a felon, faces up to four years in prison.  But legal experts believe it is more likely that Justice Merchan will sentence Mr. Trump to a few months in jail or probation.  Whatever his punishment, Mr. Trump is unlikely to be incarcerated before the election.  Even if the judge hands down the sentence on Sept. 18, he could postpone any punishment until after Election Day, or, if Mr. Trump wins back the White House, until after his second term expires.

Nor is Justice Merchan likely to have the final say.  The former president will appeal his conviction to higher courts, and if Justice Merchan sticks with the plan to sentence him on Sept. 18, Mr. Trump will likely appeal that decision as well.

"Fatal Peril: Unheard Stories from the IPV-to-Prison Pipeline and Other Voices Touched by Violence"

The title of this post is the title of this notable new huge report from the Stanford Criminal Justice Center.  The email I received about the report explains that it examines "the prevalence and severity of intimate partner violence (IPV) in the backgrounds of women incarcerated for homicide in California."  Here is the start of the report's executive summary:

The women’s rate of incarceration in the United States has grown twice as fast as that of men in recent decades.  Research has established that many incarcerated women have histories of abuse throughout their lives, including intimate partner violence (IPV), and that this abuse may contribute to their criminalization.  Gender-based violence results in an array of negative physical and mental health consequences, with intimate partner homicide (IPH) as the most severe outcome.

For women who are arrested, convicted, and sentenced for actions like homicide arising out of their own victimization, the law generally fails to account for domestic and intimate partner violence even when this abuse is supposed to be considered as a mitigating factor.  Unfortunately, little scholarship has examined the linkage between genderbased violence and women’s experiences as defendants ensnared in a broad and powerful criminal legal system.

The overarching purpose of our project was to understand how people experiencing genderbased violence are criminalized for actions they took to survive abuse. While IPV exists for people of all genders, we focused on women given their disproportionate rates of severe and lethal intimate partner abuse.  We also centered our study on people convicted of the most serious of offenses and serving the longest sentences — murder and manslaughter.

Specific objectives were to:

 (1) Quantify the prevalence of IPV and the potential lethality of the abuse;

(2) Describe the nature of the relationship between the survivor-defendant and the decedent as it relates to the circumstances of the offense; and

(3) Identify the extent to which the criminal legal system accounts for IPV.

The lengthy reports discusses sentencing in various ways, and this passage particularly caught my eye:

Although we did not systematically ask respondents about their co-defendants’ sentences, we were able to glean some information about sentencing disparities from their narrative responses.  In some cases, respondents received higher sentences than their co-defendants for less culpable conduct because their co-defendants testified against them.  As one respondent shared, “My ex-boyfriend was the one who did the actual crime. And both of them are already out of prison. I did not participate in the actual crime.  I should have a chance to get out of prison.”  Similarly, many co-defendants took plea deals to [testify against] respondents—even if the respondent did not cause the killing.

Exciting new "Real-Time Crime Index" website officially launched

Regular readers are used to seeing my references to the YTD Murder Comparison from the folks at AH Datalytics.  I am excited to see that these folks now have launched a "Real-Time Crime Index."   Jeff Asher has this new substack post discussing the launch and the tool, and here are excerpts:

The Real-Time Crime Index (or RTCI for short) launches today at https://www.realtimecrimeindex.com!  The RTCI presents a new way of looking at crime data by collecting current crime data from hundreds of law enforcement agencies nationwide to present national crime trends as never seen before: as they develop.

The RTCI was built thanks to generous support from Arnold Ventures and incredible hard work from the RTCI team: Dave Hatten, Katie Schwipps, and Oscar Boochever (as well as my co-founder Ben Horwitz and a ton of people who helped advise on data collection, auditing, and visualization).  The goal of this project is to provide this information so that anyone — regardless of their location, expertise in crime data, political persuasion, or policy preferences — can use it to understand crime locally or nationally.

The RTCI currently has data from more than 350 agencies covering over 80 million people though not all of those agencies have available data for every month from January 2017 through June 2024.  The agencies that do have data for every month since 2017 make up the nationwide sample which as of June 2024 has 304 agencies covering over 76 million people with full data in at least one crime category.  The national sample right now covers around 25 percent of the nation’s population and 45 percent of the murders that occur each year.

I’ll do a post tomorrow with much more detail about what the RTCI says about national crime trends and another post — probably next week — going deeper into the methodology behind the RTCI.  Overall, violent crime and property crime are falling in the United States according to the RTCI’s sample of data through June 2024.  Murder was down roughly 16 percent midway through the year, with overall violent and property crime down 5 and 9 percent respectively.  The RTCI also shows that the big property crime decline is being driven by motor vehicle theft falling 17 percent, after rising considerably each year from 2020 through 2023.

But the beauty of the RTCI is that anyone can see the data, the trends, the sourcing, and the methodology to evaluate what’s happening.  All of the current data for every city comes from either agencies themselves or state UCR programs with data received either through publicly available open data or sent to us directly from agencies or state UCR programs.

"Prosecution Deferred"

The title of this post is the title of this recent article available on SSRN authored by Shima Baradaran Baughman and Taylor Broadbent. Here is its abstract:

Deferred prosecution agreements (or DPAs) have been used with increasing frequency, particularly in corporate criminal prosecutions, over the past two decades.  By allowing prosecutors to offer a path for rehabilitation without ever having to bring charges against a defendant, deferred adjudication presents a valuable tool for progressive prosecutors to use in a broader movement for criminal justice reform.

However, data on how prosecutors use DPAs –– how often they are offered, and who they are offered to –– has long been lacking.  Drawing on a recent national experiment studying state and local prosecutors, we aim to supplement the existing data to help answer these questions.  We then draw on this more complete picture of how prosecutors at all levels are using DPAs to conclude that, contrary to congressional intent, DPAs have come to be used in practically every corporate criminal prosecution, while they are offered to resolve only a small fraction of individual prosecutions.  We argue that this troubling trend not only runs contrary to the legislation that initiated deferred prosecution agreements but is unjustified on public policy grounds.  This misalignment can likely be remedied by using deferred adjudication more frequently in individual prosecutions, presenting a valuable tool to respond to the endemic challenges of overcriminalization and mass incarceration, while still holding individuals accountable for crime. Increasing the use of deferred adjudication allows individuals facing criminal charges an opportunity at rehabilitation without the collateral consequences and reputational tarnish of prosecution. 

Two recent takes on the pendulum swings in recent justice reform efforts

In our nation, reform movements can often have a tendency to moderate over time, and that seem especially true in the criminal justice space where we can often see major (and minor) pendulum swings in reform efforts and broader politics. These moderating tendencies came to mind upon seeing this morning two recent notable pieces discussing, in somewhat differing contexts, the current state of reform efforts:

From The Atlantic, "Bipartisan Criminal-Justice Reform Is Still Very Much Alive: Yes, the pace of progress has slowed, but it certainly continues."

From the Marshall Project, "How Efforts to Cut Long Prison Sentences Have Stalled: Crime victim advocates and conservative groups are resisting moves to revisit 'truth-in-sentencing' laws."

UPDATE:  After doing this post, I came across another recent article discussing another recent pendulum swing:

From the Washington Post, "Hard drugs illegal again in Oregon as first-in-nation experiment ends:  Those who supported a measure that went into effect in 2021, which legislators rolled back this year, said it sought to help instead of simply handcuff."

Notable (and failed) argument that “originalist" jury trial right must allow juries to know about sentence and nullification

Last week I came across a short federal district court opinion in US v. Valdivias, No. 20-20054-02-DDC (D. Kan. Aug. 26, 2024) (available here), rejecting some notable originalist jury claims by a drug defendant. I recommend the entire opinion, and here are excerpts:

Before trial, Defendant Hugo Chavez Valdivias filed a Motion to Inform the Jury of the Sentencing Range, to Permit Nullification Arguments, and to Exclude Pattern Criminal Jury Instruction 1.20 (Doc. 204).  First, he asks the court to instruct the jury on sentencing ranges for the charges in the Superseding Indictment.  Second, he asks the court not to instruct the jury that it must ignore possible punishment in evaluating guilt.  Third, he asks the court to permit sentence-based “nullification” arguments.

Defendant supports these three requests by invoking an “originalist understanding of the constitutional jury trial right.” Doc. 204 at 1. He first argues that our Circuit’s cases prohibiting nullification arguments are based on policy, not the Constitution’s original meaning.  This basis, he argues, requires the court to disregard the cases as “obsolete” in light of the Supreme Court applying “methods of originalism” to interpret the Sixth Amendment. Id. at 6. He next argues that Supreme Court cases frequently cited in opposition to jury nullification don’t resolve the issue before the court. Id. at 9–14. 

The government disagrees. It argues that the jury in this case has no role to play in sentencing and so it can’t consider any possible sentence. Doc. 208 at 2. What’s more, our Circuit has held there isn’t a right to sentence-based nullification arguments, id. at 4, and, the government argues, is bound by those precedents, id. at 6.

Our Circuit and the Supreme Court disagree with defendant’s position as well.  And so, following precedent, this court must disagree.

Though I am not completely versed on every aspect of originalist history and arguments regarding the jury trial right, I have read enough historical accounts or jury functioning at the Founding to believe the defendant here could make a robust originalist claim.  But, as the ruling suggests, all contemporary precedents on informing a jury about sentencing issues and nullification power are contrary to these kinds of originalist contentions.  This arena, then, serves as another example (of many) where it would seem a serious commitment to an originalist interpretation of the Constitution would provide crminal defendants more rights than they have under modern jurisprudence. 

Eleventh Circuit panel finds Excessive Fines Clause applies to FBAR penalties

A helpful reader made sure I did not miss a lengthy new ruling from the Eleventh Circuit late last week in US v. Schwarzbaum, No. 22-14058 (11th Cir. Aug. 30, 2024) (available here).  Here are excerpts from the start of the 50+ page opinion:

Isac Schwarzbaum is a wealthy naturalized citizen of the United States.  He was born in Germany and holds significant wealth in numerous bank accounts in Switzerland and Costa Rica.  The U.S. tax regime required Schwarzbaum to report any foreign bank accounts to the Internal Revenue Service (the “IRS”) using a form known as the FBAR.  Although Schwarzbaum had read the FBAR filing instructions and engaged accountants to assist with his filings, he failed to report his foreign bank accounts to the IRS for years 2007–2009....

This case presents essentially two categories of questions.  The first set are procedural questions asking whether the district court can enforce the IRS’s recalculated penalties.  These questions are easily answered: (1) the United States, as plaintiff in a civil case, has the discretion to seek a lower penalty amount than the IRS assessed; (2) the Eleventh Circuit in Schwarzbaum I already disposed of and rejected Schwarzbaum’s statute-of-limitations argument; and (3) the district court did not err by retaining jurisdiction during a remand to the IRS that was, in essence, an interlocutory order.

More difficult is the fundamental question of whether FBAR penalties are fines within the meaning of the Eighth Amendment’s Excessive Fines Clause.  This is a matter of first impression for this Court.  The only other circuit court to have addressed the question, the First Circuit, recently held that the Eighth Amendment’s Excessive Fines Clause does not apply to FBAR penalties.

After careful consideration of the historical development of the Excessive Fines Clause and the FBAR’s text, structure, and history, we decline to follow the First Circuit.  Rather, we hold that FBAR penalties are in substantial measure punitive in nature.  Therefore, under controlling Supreme Court precedent, they are subject to review under the Eighth Amendment’s Excessive Fines Clause.  And in this case, examining the penalties assessed against Schwarzbaum account by account as we must, we identify $100,000 in penalties levied against one account in each of the years 2007–2009, for a total of $300,000, that are grossly disproportionate to the offense of concealing that account, and are therefore in violation of the Excessive Fines Clause.  We also hold, however, that the other penalties levied against the remaining accounts did not violate the Excessive Fines Clause because the penalties assessed against them were not grossly disproportionate to Schwarzbaum’s willful concealment of tens of millions of dollars in overseas accounts.

Ever the criminal justice reform populist, former Prez Trump signals support for marijuana legalization in Florida and elsewhere

When he was president, Donald Trump played a critical role in advancing, and then signed into law, the most significant federal criminal justice reform in a generation, the First Step Act.  Trump has also often talked up expanding the federal death penalty and he presided over 13 federal executions during the last six months of his presidency.  Based on polling and other indicators, I view these aspects of Trump's criminal justice record as reflecting his populist inclinations.

In that spirit, I was not too surprise yesterday when Trump authored this Truth Social post to signal his support for Florida's Amendment 3, which would legalize adult use of marijuana in the Sunshine State.  National polls in recent years have generally shown about 2/3 of Americans support marijuana legalization, and various polls in Florida have shown nearly 60% of support for Amendment 3.  (Notably, ballot initiatives in Florida require 60% of the vote for an amendment's approval.)  Because marijuana legalization has lately proven quite popular with ordinary citizens, Trump's post and position seems to reflect his populist instinct.

In addition, in reviewing Trumo's post, I was struck by how certain language he used and points he made echo long-standing criminal justice reform advocacy.  Here are excerpts with some key terms emphasized:

We will take our streets back by being tough & smart on violent, & all other types, of Crime....

At the same time, someone should not be a criminal in Florida, when this is legal in so many other States.  We do not need to ruin lives & waste Taxpayer Dollars arresting adults with personal amounts of it on them, and no one should grieve a loved one because they died from fentanyl laced marijuana.

Notably, a wide array of criminal justice reformers and advocacy groups have long talked up the importance of being "smart" on crime.  The "Smart on Crime" label has often been embraced by coalitions of reform-minded groups at the state level, such as in Kentucky and Louisiana and Texas.  Even more notably, in 2013, then-US Attorney General Eric Holder launched a major reform effort labeled the "Smart on Crime" initiative.  And that "smart" branding may well have been drawn from the title of Kamala Harris's 2009 book "Smart on Crime: A Career Prosecutor's Plan to Make Us Safer."

Meanwhile, expressing concern about overcriminalization and also geographic unfairness in criminalization echoes justice reformers' oft-stated concerns (though racial inequities in criminalization are typically given more attention than geographic inequities).  And the suggestion that arrests of adults for mere marijuana possession can "ruin lives" has been a key theme in marijuana reform advocacy found in reports from the ACLU ("the price paid by those arrested and convicted of marijuana possession can be significant and linger for years, if not a lifetime") and editorials in the New York Times ("marijuana convictions — including those resulting from guilty pleas — can have lifelong consequences for employment, education, immigration status and family life").

Interesting times.

"Red Juries & Blue Juries"

The title of this post is the title of this new article authored by Richard Lorren Jolly available via SSRN. Here is its abstract:

The United States is a democracy divided.  Perhaps not since the Civil War have Americans been so deeply and bitterly at odds with one another.  This polarization stretches beyond mere policy disagreements and has become a type of identity that studies show is for many of greater importance than race, gender, and religious faith.  The result of this division has been a loss of confidence across the nation’s institutions, with potentially dire implications.  This Article is the first to examine the jury as an institution in light of partisan hyperpolarization.  It reviews the history and underlying purposes of the jury as a democratic body, stressing that political biases are an inherent — and at times desirable — part of the institution.  But, in drawing on extensive empirical socio-psychological scholarship, it demonstrates that today’s polarization is so extreme that fresh approaches are necessary.  In order to ensure procedural and substantive legitimacy, courts must be diligent in seeking partisan representation in venires and policing partisan partiality among jurors in all cases, not just those that are explicitly political.  Critically, it concludes that potential jurors should not be excluded solely on the basis of political affiliation or past votes cast.  The jury as an institution demands the voices of many in order to fulfill its role as the democratic bench of the judiciary.

Rounding up some notable new capital punishment pieces

In recent posts, I have already covered notable capital punishment adminstration stories from Florida and Missouri and South Carolina.  And as news and commentary on death penalty issues keeps emerging from states and nationally, an abridged round-up of notable recent pieces catching my eye seemed in order:

From 10News, "Gov. Lee says Tennessee is working to resume executions, after sudden halt in 2022"

From the Daily Mail.com, "Trump reveals he'll bring BACK the federal death penalty and expand it to cover these sick crimes... do you agree?"

From FITSNews, "Capital Punishment: Line. Them. Up. And put them down…"

From The Journal, "The weight of the wait 30 years after Kansas death penalty law"

From the Kansas City Star, "Kris Kobach: The only problem with Kansas’ death penalty is that it takes too long"

From the New York Times, "America Does Not Need the Death Penalty"

From the Pittsburgh Post-Gazzette, "Editorial: Baby Leon Katz deserves justice. Pursuing the death penalty will only delay it"

From Salon, "The end of the abolition era: Democrats quietly drop their opposition to the death penalty"

From USA Today, "Death penalty in the US: Which states still execute inmates, who has executed the most?"

"'Everything is technology': examining technology access and use among returning citizens"

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

Digital exclusion is a barrier for people on parole, herein referred to as returning citizens.  Yet, much remains unknown about the specific issues they encounter. As the world continues to advance technologically, it is important that we understand returning citizens’ access to and use of technology and how it impacts their ability to reintegrate into society. Framed in the Digital Rehabilitation Model, the current study uses qualitative data from 28 returning citizens to explore their digital exclusion across time since release from prison.  Findings show that returning citizens released less than a month to 24 months ago more often described technology-related challenges.

New ACLU memo paints rosy vision of "Harris on the Criminal Legal System"

In this post last month, I flagged (and threw some shade on) one of a series of "roadmap" documents ALCU has produced on various issues looking toward the next presidential administration.  That document, titled "Trump on the Criminal Legal System," painted a  dark picture of the prospects of "Trump’s efforts to bring in a new wave of mass incarceration."  Now the ACLU has just released this parallel memo in this series, titled "Harris on the Criminal Legal System," which contends a Harris Administration "could have a significantly positive impact on America’s justice system."  Here is how this 12-page document begins:

Democratic nominee Vice President Kamala Harris has comprehensive knowledge of the criminal justice system and a demonstrated record of a commitment to reform.  While Harris may not be aligned with all of the ACLU’s positions on criminal law reform, there is nonetheless considerable overlap and synergy.

Before she was elected to the Senate, Harris served as an assistant district attorney and district attorney for the city of San Francisco, and as attorney general for the state of California.  As a district attorney, Harris established a reentry program focused on removing barriers to housing, education, and employment.  As an attorney general, she created an office to address the rights of children in the juvenile justice system.  Later as a senator, Harris championed progressive legislation to address police transparency and accountability and to address disparities created by the war on drugs.

To be clear, Harris has a mixed record on criminal law reform.  For instance, her position on the death penalty has shifted over time.  As district attorney, she demonstrated fidelity to campaign promises when she declined to seek the death penalty.  But, under her leadership as attorney general, her office defended the death penalty in California after a court found it to be unconstitutionally arbitrary.  That said, Harris’ most recent work in the Senate to reform the criminal legal system is encouraging.  If she continues this path, she could have a significantly positive impact on America’s justice system.

This year also marks the 30th anniversary of the 1994 Crime Bill, which presents Harris with an opportunity to renounce the failed policies that drove mass incarceration and to embrace reform to end racial disparities and move toward a more humane system for all.  The ACLU will continue our advocacy for such meaningful reform.  We will push the Harris administration to expand progressive reform efforts and challenge draconian approaches to criminal legal policy.

Prior related post:

•  New ACLU memo paints dark vision of "Trump on the Criminal Legal System"

Florida completes execution of man 30 years after murder and rape of siblings

As reported in this AP article, a "A Florida man convicted of killing a college freshman and raping the murder victim’s older sister while the siblings camped in a national forest 30 years ago was executed Thursday."  Here is more:

Loran Cole, 57, received a lethal injection and was pronounced dead at 6:15 p.m. at Florida State Prison for the 1994 killing of the 18-year-old student. Cole also was serving two life sentences for rape.

Cole and a friend, William Paul, befriended the two college students in the Ocala National Forest, court records showed. After talking around a fire, the men offered to take the siblings to see a pond.  While away from the campsite, Cole and Paul jumped the victims and robbed them, according to the records.

The brother, 18, who was a student at Florida State University, was beaten and had his throat slit and left in the forest.  His sister, then a 21-year-old senior at Eckerd College, was taken back to the campsite, where Cole tied her up and raped her, according to the record.  The woman was left tied to a tree overnight and raped again the next day. She eventually managed to free herself and flagged down a driver for help.  Police found her brother’s body lying face down on the ground, according to court records.

Paul and Cole were both convicted of first-degree murder.  Paul was sentenced to life in prison....

The U.S. Supreme Court denied Cole’s final appeal earlier Thursday.  His lawyers had raised several points in seeking a stay of execution, including the fact that Cole was an inmate at a state-run reform school where he and other boys were beaten and raped.  The state has since apologized for the abuse and this year passed a law authorizing reparations for inmates at the now-shuttered reform school.  The lawyers also argued Cole shouldn’t be executed because he was mentally ill and had brain damage and Parkinson’s disease.

Notable new Pew Research Center report on "Americans’ Experiences With Local Crime News"

The Pew Research Center released today this big new survey/report intended to enable us "to better understand how U.S. adults get local crime news and information" and based on a "survey of 5,146 U.S. adults [that] was conducted from January 22 to 28, 2024."   The report is so extensive and intricate, I find it hard to take in or assess all the findings.  Helpfully, via multiple webpages, the Pew folks break down many of the details in this lengthy postings:

Americans’ Experiences With Local Crime News

Sources of local crime news

Types of local crime news

Quality of local crime news

How Americans respond to local crime news

 

"Opening the Virtual Window: How On-line Processes Could Increase Access to Justice in the Criminal Legal System"

The title of this post is the title of this recent paper authored by Amy Schmitz and Cynthia Alkon availabke via SSRN. Here is its abstract:

This article explores the potential of technology to improve access to justice (A2J) in criminal courts, specifically for nonviolent misdemeanor cases.  Despite a push for innovation in courts, criminal courts have been slow to embrace change and technological innovation due to factors like constitutional constraints and funding limitations.  This article argues that criminal courts need "virtual windows" alongside traditional "brick and mortar doors" to enhance A2J.  It proposes a problem-solving approach focusing on misdemeanor cases, a high-volume category where technology can have a significant impact.  The paper highlights the importance of ensuring defendants make "knowing and intelligent" pleas despite the often-real consequences of misdemeanor convictions.  The analysis also proposes a "green light, yellow light, red light" framework to categorize technologies based on their potential to improve A2J vs. the dangers they pose for defendants.  Notably, the article acknowledges the digital divide but argues that the increasing prevalence of mobile devices and internet access necessitates exploring technological solutions for lowering barriers to justice.  The paper concludes by calling for the adoption of "green light" technologies to improve A2J in misdemeanor cases, while acknowledging the need for thoughtful implementation to avoid unintended consequences. It also suggests further research with respect to “yellow light” ideas that may be worth further exploration with an aim toward furthering fairness and A2J.

US Sentencing Commission releases more updated "Quick Facts" publications on more economic offenses

The US Sentencing Commission is continuing to release new sets of its "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data. I have flagged these new updated Quick Facts in recent posts  here and here, and the USSC just this week released these additional "Quick Facts"  on additional economic offenses:

• NEW Tax Fraud (August 2024)
• NEW Health Care Fraud (August 2024)
• NEW Government Benefits Fraud (August 2024)
• NEW Credit Card and Other Financial Instrument Fraud (August 2024)

Backpage founders and executives sentenced to 5 and 10 years, well below what federal prosecutors' urged

I flagged here last week some issues surrounding the federal sentencing of the persons who founded and helped run the website Backpage.  This AP article reports on how these issues played out, and here are excerpts:

Michael Lacey, a founder of the lucrative classified site Backpage.com, was sentenced Wednesday to five years in prison and fined $3 million for a single money laundering count in a sprawling case involving allegations of a yearslong scheme to promote and profit from prostitution through classified ads.

A jury convicted Lacey, 76, of a single count of international concealment money laundering last year, but deadlocked on 84 other prostitution facilitation and money laundering charges. U.S. District Judge Diane Humetewa later acquitted Lacey of dozens of charges for insufficient evidence, but he still faces about 30 prostitution facilitation and money laundering charges.

Authorities say the site generated $500 million in prostitution-related revenue from its inception in 2004 until it was shut down by the government in 2018.  Lacey’s lawyers say their client was focused on running an alternative newspaper chain and wasn’t involved in day-to-day operations of Backpage.  But Humetewa told Lacey during Wednesday’s sentencing he was aware of the allegations against Backpage and did nothing....

Two other Backpage executives, Chief Financial Officer John Brunst and Executive Vice President Scott Spear, also were convicted last year and were each sentenced on Wednesday to 10 years in prison....

Prosecutors said the three defendants were motivated by greed, promoted prostitution while masquerading as a legitimate classified business and misled anti-trafficking organizations and law enforcement officials about the true nature of Backpage’s business model.  Yvonne Ambrose, whose 16-year-old daughter Desiree Robinson was trafficked in Chicago on Backpage and killed in 2016 by a man who answered an online sex ad, told the judge on Tuesday about the pain she feels from her daughter’s death....

Authorities say Backpage employees would identify prostitutes through Google searches, then call and offer them a free ad.  The site also is accused of having a business arrangement in which it would place ads on another site that lets customers post reviews of their experiences with prostitutes.

The site’s marketing director has already pleaded guilty to conspiring to facilitate prostitution and acknowledged that he participated in a scheme to give free ads to prostitutes to win over their business.  Additionally, the CEO of the company when the government shut the site down, Carl Ferrer, pleaded guilty to a separate federal conspiracy case in Arizona and to state money laundering charges in California.  Two other Backpage employees were acquitted of charges by a jury at the same 2023 trial where Lacey, Brunst and Spear were convicted of some counts....

A Government Accountability Office report released in June noted that the FBI’s ability to identify victims and sex traffickers had decreased significantly after Backpage was seized by the government because law enforcement was familiar with the site and Backpage was generally responsive to requests for information.

Prosecutors said the moderation efforts by the site were aimed at concealing the true nature of the ads.  Though Lacey and Larkin sold their interest in Backpage in 2015, prosecutors said the two founders retained control over the site.

Fifth Circuit panel declares unconstitutional application of federal prohibition on gun possession by “unlawful user” of controlled substances

A Fifth Circuit panel today declared unconstitutional a federal gun possession prohibition as applied to a "non-violent, marijuana smoking gunowner." The unanimous panel ruling in US v. Connelly, No. 23-50312 (5th Cir. Aug. 28, 2024) (available here), starts and ends this way:

Paola Connelly is a non-violent, marijuana smoking gunowner.  El Paso police came to her house in response to a “shots fired” call. When they arrived, they saw John, Paola’s husband, standing at their neighbor’s door firing a shotgun. After arresting him, they spoke with Paola, who indicated that she would at times smoke marijuana as a sleep aid and for anxiety. A sweep revealed that the Connellys’ home contained drug paraphernalia and several firearms, including firearms owned by Paola.  There was no indication that Paola was intoxicated at the time.

Paola was charged with violating: (1) 18 U.S.C. § 922(g)(3) by possessing firearms and ammunition as an unlawful user of a controlled substance, and (2) 18 U.S.C. § 922(d)(3) by providing firearms and ammunition to an unlawful user of a controlled substance. Paola argued in a motion to dismiss, and the District Court ultimately agreed, that §§ 922(g)(3) and 922(d)(3) were facially unconstitutional and that § 922(g)(3) was unconstitutional as applied to her under the Second Amendment.

This appeal asks us to consider whether Paola’s Second Amendment rights were infringed, and the answer depends on whether § 922(g)(3) is consistent with our history and tradition of firearms regulation.  The short of it is that our history and tradition may support some limits on a presently intoxicated person’s right to carry a weapon (and for that reason Paola’s facial challenges to §§ 922(g)(3) and 922(d)(3) fail), but they do not support disarming a sober person based solely on past substance usage.  Nor, contrary to what the government contends, do restrictions on the mentally ill or more generalized traditions of disarming “dangerous” persons apply to nonviolent, occasional drug users when of sound mind.  We AFFIRM as to Paola’s as-applied challenge and REVERSE as to her facial challenges....

Paola’s § 922(g)(3) charge is inconsistent with our history and tradition of firearms regulations for the reasons discussed above, so we AFFIRM the judgment of dismissal as to her as-applied challenge.  But that holding is narrow. There undoubtedly exist circumstances where § 922(g)(3) may apply constitutionally, such as when it bans a presently intoxicated person from carrying firearms, so we REVERSE as to Paola’s facial challenge.  Finally, we REVERSE as to Paola’s facial challenge to § 922(d)(3).

"Prosecutorial Reform and the Myth of Individualized Enforcement"

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

The American prosecutor’s legitimacy faces unprecedented challenges.  A new wave of reformist prosecutors has risen to power promising to transform the criminal justice system from within, sparking fierce backlash from defenders of the prosecutorial status quo.  Central to this conflict is a debate over the nature of prosecutorial discretion, influenced by a set of claims and assumptions that this Article terms the myth of individualized enforcement.  This myth posits that prosecutors base discretionary decisions on case-specific facts and equitable circumstances rather than generalizable criteria or categorical nonenforcement practices, such as the policies some reformist prosecutors have adopted that disfavor prosecuting marijuana possession or abortion offenses or seeking the death penalty.

This Article is the first to identify and critically examine the myth of individualized enforcement.  It draws on a review of historical evidence and research on contemporary prosecutorial practices to show that prosecutors have long engaged in categorical nonenforcement in relation to vice laws, property offenses, and even certain areas of violent crime enforcement.  By situating reformist prosecutors’ policies within this broader context, the Article exposes how the myth of individualized enforcement has been weaponized to delegitimize reform efforts while shielding conventional prosecutors from scrutiny.

The Article also excavates the deeper distinctions between reformist and conventional approaches to categorical nonenforcement that the myth of individualized enforcement serves to hide from view.  Reformist prosecutors tend to adopt centralized, formal, and transparent nonenforcement policies that aim to redistribute the benefits of prosecutorial leniency to historically marginalized groups.  Conventional prosecutors, in contrast, have often dispensed categorical leniency in an informal, covert manner and in contexts that tend to reproduce existing hierarchies of race, class, and gender.  By surfacing these divergences, the Article aims to reorient academic and political discourse about prosecutorial reform toward the more constructive end of evaluating different visions of discretionary justice and the institutional structures that will best align prosecutorial power with democratic values.

Rounding up some notable criminal justice advice directed toward prez candidate Harris

A range of criminal justice issues are starting to get a range of media attention with now less than 10 weeks until Election Day 2024.  I have recently noticed a number of newer pieces with various folks giving advice to VP Kamala Harris about how she might campaign and govern in this space.  Here is a partial round-up:

From the Chicago Tribune, "Kamala Harris must engage with voters on crime to maintain momentum"

From Marijuana Moment, "Harris Needs To ‘Follow Through’ On Marijuana Legalization, Independent Presidential Candidate Cornel West Says"

From The New Republic, "Crime Is Down. Kamala Is Up. There’s a story here, if the Harris-Walz campaign wants to tell it."

From Politico, "Democrats Are Already Buzzing About a Merrick Garland Successor: Here’s what Kamala Harris needs in an attorney general."

From the Washington Post, "Harris should go full wonk on crime: Rural voters want better answers to crime than overcrowded jails."

"Public Defense Attorneys' Perception of Race and Bias: National Survey Findings"

The title of this post is the title of this recent publication from the Center for Justice Innovations (CJI) authored by Sruthi Naraharisetti. Here is how the CJI website describes the work:

Public defense attorneys play a pivotal role in addressing the racial inequities that many clients face in the criminal legal system while also experiencing the impact of those racial inequities themselves.  This exploratory study aims to illuminate how attorneys consider race in their work, conceptualize their role in addressing racial inequity, and experience the impact of their racial or ethnic identities in the workplace.

Our survey of 690 public defense attorneys reveals that race significantly influences public defense practice and culture.  Attorneys recognize racial inequities in the legal system and adapt their strategies accordingly, with notable differences between attorneys who are white and attorneys who are Black, Indigenous, or People of Color (BIPOC). White attorneys often find that race hinders their relationships with BIPOC clients, while BlPOC attorneys are more likely to report adjusting case strategies for BIPOC clients. Inequities within the profession — such as a lack of diversity among attorneys and leadership, limited opportunities for dialogue, and workplace racism — are particularly felt by BIPOC attorneys.  We hope this report will inspire reflection and discussion among public defense agencies about racial bias in the field and help pave the way to identifying and evaluating actionable solutions.

Unanimous Massachusetts Supreme Judicial Court finds state's prohibition of switchblades violative of Second Amendment

The top court in Massachusetts handed down a notable (and unanimous) new Second Amendment ruling today in Commonweath v. Canjura, No. SJC- 13432 (Mass. Aug. 27, 2024) (available here). Here is how it starts:

Since 1957, G. L. c. 269, § 10 (b) (§ 10 [b]), has prohibited people from possessing certain spring-release pocketknives, commonly known as "switchblades." In this case, we are asked to decide whether § 10 (b)'s prohibition against carrying a switchblade knife violates the Second Amendment to the United States Constitution, considering the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022) (Bruen).  We conclude it does. Accordingly, we reverse the denial of the defendant's motion to dismiss.

Prison Policy Initiative briefing discusses "10 ways that mass incarceration is an engine of economic injustice"

The quoted portion of this post title is the title of this new briefing published by the Prison Policy authored by Eric Seligman and Brian Nam-Sonenstein. Here is how the discussion starts:

Money is power in the United States, and mass incarceration plays a major role in determining who can wield power and who can’t.  As we’ve noted repeatedly over the years, it is no coincidence that the poorest and most vulnerable communities are also the most policed.  The criminal legal system erects significant barriers to employment and the ballot box, economically and politically weakening entire communities.  Importantly, this arrangement impacts all workers: employers use this massive class of disadvantaged people to threaten all workers with replacement and increasingly risky unemployment if they dare to demand better wages and conditions.  Mass incarceration also weaves a narrative that pits people with similar economic interests against one another, reducing systemic inequality to matters of individual choice.  Fortunately, understanding mass incarceration as the wealthy’s preferred economic policy clarifies that ending it is necessary for all movements for justice and equality — all working people benefit from solidarity with criminalized people.

In this briefing, we compile ten examples of how mass incarceration blocks progress toward economic justice.  We argue that our massive system of criminalization is not an isolated issue, nor is it someone else’s problem; it is an engine of inequality that traps people in poverty, weakens worker power, and undermines political organizing toward a more prosperous future for the vast majority of people.

South Carolina Supreme Court takes up pacing of state execution plans

As reported in this new AP piece, the "South Carolina Supreme Court won't allow another execution in the state until it determines a minimum amount of time between sending inmates to the death chamber." Here is more:

The state's next execution, scheduled for Sept. 20, is still on for inmate Freddie Eugene Owens.  It would be the first execution in South Carolina in over 13 years after the court cleared the way to reopen the death chamber last month.

But as it set Owens' execution date Friday, the court also agreed to take up a request from four other death row inmates who are out of appeals to require the state to wait at least three months between executions.  In its response, state prosecutors suggested setting the minimum at no longer than four weeks between executions.

Currently, the Supreme Court can set executions as close together as a week apart.  That accelerated schedule would rush lawyers who are trying to represent multiple inmates on death row, a lawyer for the inmates wrote in court papers.  Prison staff who have to take extensive steps to prepare to put an inmate to death and could cause botched executions, attorney Lindsey Vann said.

Neither argument is a good reason to wait for three months, state prosecutors responded in offering up to a four-week delay.  “The Department of Corrections staff stands ready to accomplish their duty as required by our law with professionalism and dignity,” Senior Deputy Attorney General Melody Brown wrote in a response drafted after speaking to prison officials....

South Carolina has held executions in rapid succession before.  Two half brothers were put to death in one night in December 1998.  Another execution followed on each of the next two Fridays that month, with two more in January 1999.

UPDATE: As reported in this press piece, the "South Carolina’s Supreme Court promised [on August 30] it would wait at least five weeks between putting inmates to death as the state restarts its death chamber with up to six executions looming."

"Presidential pardons: Which ones do Americans approve of?"

The title of this post is the title of this interesting new YouGov entry discussing its latest polling regarding various all sorts of aspects of the use and reach of the federal clemency power.  There are a number of notable and interesting findings discussed throughout the piece, and here is its introductory overview at the start:

As the 50th anniversary of Gerald Ford’s controversial pardon of Richard Nixon approaches, new polling reveals that public support for the pardon has increased over time, though slightly more still disapprove of it than approve. Americans are divided over many specific pardons, largely corresponding to whether their party and the party of the president who issued it are aligned. While some of the most recent pardons — such as those granted by President Joe Biden for marijuana possession — receive broad approval, others, particularly those issued by former President Donald Trump to his allies, are viewed far less favorably.

Roughly half of Americans approve of presidents having the power to pardon federal crimes, but majorities think it would be inappropriate for presidents to pardon themselves, family members, or donors. Many support putting limits on the president's pardon power, including by making public the reasons behind pardons, prohibiting self-pardons, and limiting pardons during an election year.

Ninth Circuit panel continues using Kisor deference analysis for guideline commentary after Loper Bright

The Ninth Circuit handed down a notable little opinion late last week in US v. Trumbull, No. 23-912 (9th Cir. Aug. 22, 2024) (available here), discussing whether the federal sentencing guidelines' commentary regarding the "definition of 'large capacity magazine' Warrants Deference under Kisor." Hard-core sentencing fans should know what is meant by guidelines' commentary, and hard-core administative law fans should know what is meant by Kisor deference. The panel majority concludes its analysis this way:

Application Note 2’s interpretation of “large capacity magazine” in § 2K2.1 meets the extensive requirements for deference laid out in Kisor. Therefore, the district court did not err in applying § 2K2.1(a)(4)(B), as interpreted by Application Note 2, to Trumbull’s base offense level when calculating his Guidelines range.

Judge Bea concurred in the result, but he wrote at length to explain why he thought Kisor deference was not justified in this context. In so doing, Judge Bea suggested that the Supreme Court's recent Loper Bright ruling was relevant to the analysis:

The majority’s expansion of Kisor deference is particularly troubling considering the Supreme Court’s recent decision in Loper Bright.  Although I acknowledge that Loper Bright did not expressly overrule Kisor, the majority is mistaken to brush Loper Bright aside and treat it as irrelevant to the interpretation of regulatory language. Maj. Op. at 7 n.2. The Court in Loper Bright made clear that courts cannot merely “throw up their hands,” as the majority does today, when a term is difficult to apply.  See Loper Bright, 144 S. Ct. at 2266. Indeed, Loper Bright questioned whether ambiguity can even serve as a valid benchmark when it comes to a court’s interpretive role.

I have noted in a number of prior posts (some linked below) that there is on-going dispute in the circuit as to whether Kisor applied to the guidelines commentary, and I am not surprised to see Loper Bright adding a nuance to these matters of uncertainty.

A few prior related posts:

• Kisor role: how often is deference to the federal sentencing guidelines' commentary litigated?
• Sixth Circuit panel debates agency deference for guideline commentary defining images for child porn sentencing
• How Kisor rolls: Third Circuit rejects guideline commentary in child porn sentencing 
• Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law 

Interesting look at the different federal prison security levels and their costs

Walter Pavlo has this interesting new commentary in Forbes looking at the federal prison system, headlined "The High Price Of Minimum Security Federal Prisoners."  I recommend this piece in full, and here are excerpts: 

There are four security levels in the Federal Bureau of Prisons (BOP); minimum, low, medium and high. High security prisons are identified as U.S. Penitentiaries that house some of the most dangerous criminals, many doing life sentences. The compounds housing these prisoners which make up over 18,000 (11.8%) of the prison population have double fenced razor wire, electrical charged fencing, perimeter patrols and secure cells. In short, they are expensive to operate.

At the other end of security spectrum are minimum security facilities that are commonly called “camps.” Most do not even have any fencing around them, have fewer staff to monitor the prisoners and routinely allow prisoners to go unsupervised into the community for work details. Camps house those who have less than 10 years remaining in their sentence, many far fewer, and their populations are prisoners that were that are serving time for crimes that were not violent (low level drug dealers and white collar offenders).

One would think that the cost of housing a prisoner at a high security facility would be far more than the average cost of housing a camper. However, a recently released statement from Donald Murphy of the BOP’s Office of Public Affairs states an increase in the average cost of housing minimum security prisoners that approaches the average cost of housing someone at a U.S. Penitentiary.

Of the BOP’s nearly 160,000 prisoners, 24,000 of them are minimum security. The BOP’s statement was that the average cost of housing a minimum security prisoner in 2024 is $151.02. The cost of housing someone in a U.S. Penitentiary is $164.87 (Lows were $129.72 and Mediums are $122.50). Since there are more minimum security prisoners than high, the total costs of housing minimum security prisoners far exceeds the costs of housing those in high security....

One place to cut cost is to look at those in prison camps to see if there is an alternative, such as home confinement or halfway houses, to move them out of costly institutions. However, the BOP has, as Director Peters has stated, a shortage of halfway house capacity across the country....

The BOP’s prisoner population has shrunk over the last 12 years from over 200,000 to around 160,000 today. However, the BOP’s current budget of $8.3 billion, continues to be the largest portion of expenditures in the Department of Justice. Sixty-eight percent of that budget is for staff salaries and benefits. However, some question how many people the BOP needs to run operations....

If prisoners move out of camps, it creates a cascade of prisoners to be moved from higher security prisons to lower ones. One key to moving prisoners is creating a place for them to go. Halfway houses are in short supply and an NBC investigative report found that many, mostly minimum security prisoners, are staying in institutional prisons longer than necessary because of problems the BOP has with implementing the First Step Act.

Sixth Circuit panel rules federal prohibition of felon gun possession is "constitutional on its face and as applied to dangerous people"

A panel of the Sixth Circuit handed down an interesting and intricate opinion in US v. Williams, No. 23-6115 (6th Cir. Aug. 23 , 2024) (available here), which rejects a Second Amendment challenge to a federal illegal gun possession charge by a "dangerous" person with a felony record. The lengthy opinion for the Court concludes with this very helpful summary:

To summarize, we hold today that § 922(g)(1) is constitutional on its face and as applied to dangerous people.  Our nation’s historical tradition confirms Heller’s assumption that felonin-possession laws are “presumptively lawful.”  The history reveals that legislatures may disarm groups of people, like felons, whom the legislature believes to be dangerous — so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.

A person convicted of a crime is “dangerous,” and can thus be disarmed, if he has committed (1) a crime “against the body of another human being,” including (but not limited to) murder, rape, assault, and robbery, or (2) a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary. An individual in either of those categories will have a very difficult time, to say the least, of showing he is not dangerous.

A more difficult category involves crimes that pose no threat of physical danger, like mail fraud, tax fraud, or making false statements. But such a case is not before us today.

In any event, district courts need not find a “categorical” match to a specific common-law crime to show that a person is dangerous. Rather, district courts should make fact-specific dangerousness determinations after taking account of the unique circumstances of the individual, including details of his specific conviction. Finally, when considering an individual’s dangerousness, courts may evaluate a defendant’s entire criminal record — not just the specific felony underlying his section 922(g)(1) prosecution.

Here, Williams availed himself of his constitutionally required opportunity to show that he is not dangerous—albeit after he violated the law, not before. Because his record demonstrates that he is dangerous, we reject his challenge. We thus affirm.

By my read, this opinion means that any and every person within the Sixth Circuit criminal charged with illegal firearm possession under 922(g)(1) — and perhaps other federal and state gun control provisions? — can now seek dismissal of that charge by making "an individualized showing that he himself is not actually dangerous."   In addition, I wonder if this Williams opinion might now provides a means for the millions of persons with non-violent felony convictions in the Sixth Circuit to seek a declaratory judgment that they are "not actually dangerous" and thus have a Second Amendment right to possess (and purchase) firearms like all their fellow citizens.

A few of many rior related posts:

• After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 
• Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi 
• Ninth Circuit grants en banc rehearing of panel ruling that federal felon-in-possession criminal law is unconstitutional 
• After Rahimi remand, Eighth Circuit panel again rejects Second Amendment challenge to federal felon in possesion charge

"An Act of Regression: Louisiana takes a giant step backward in parole and sentencing reform"

The title of this post is the title of this new briefing from Prison Policy Initiative authored by Emmett Sanders. The subtitle of the discussion highlights its main themes: "Louisiana lawmakers are eliminating discretionary parole and implementing regressive truth-in-sentencing laws. These billion-dollar 'zombie policies' are set to double the prison population in a state that is already a world leader in incarceration and will harm public safety." Here is how the briefing gets started (with links from the original):

With the passage of HB 9, Louisiana recently became the 17th state since 1976 — and the first in nearly a quarter of a century — to eliminate discretionary parole as a pathway for releasing people from its prisons.  Simultaneously, the state began implementing HB 10, one of the harshest truth-in-sentencing laws in the country.  These were among a host of other so-called “tough on crime” bills that were signed by Louisiana’s new governor, and will affect nearly everyone sentenced in the state after August 1, 2024.  Together, this package of regressive bills will set prison and sentencing reform back decades in the state: although lawmakers have framed them as “public safety” measures, these laws will have the opposite effect, doubling the prison population, compelling billions of dollars in new prison construction, and drastically escalating violence and trauma for incarcerated people and prison staff in the state.

Effective update on impact and import of Fischer ruling on Jan 6 prosecutions

Politico has this informative new piece, headlined "Justice Department signals plan to salvage obstruction charges in some Jan. 6 cases," which  details some of the echoes of the Supreme Court's Fischer ruling a couple of months ago.  I recommend the piece in full, and here are excerpts:

The Justice Department said Wednesday it plans to press ahead with obstruction charges against two Jan. 6 defendants despite the Supreme Court’s recent ruling that limited the scope of a federal statute that makes it a felony to obstruct many government proceedings.

Prosecutors contended they can still prove that the two defendants, a married couple from Ohio, are guilty of obstructing Congress even under the high court’s narrow interpretation of the law. The defendants, Don and Shawndale Chilcoat, are accused of surging with the mob onto the Senate floor during the riot at the Capitol.

The Justice Department’s announcement in the Chilcoats’ case appears to be the first time since the Supreme Court’s June 28 ruling that prosecutors have signaled their intention to proceed with obstruction charges in any cases stemming from the Capitol riot.

Over the past seven weeks, the Justice Department has abandoned the obstruction charge in a slew of cases, citing the uncertainty caused by the Supreme Court. Prosecutors also have refrained from pursuing the charge in new cases. That has blunted an important cudgel for prosecutors: The obstruction charge carries a 20-year maximum sentence and has often been used to coax defendants into plea deals. The charge has also been used by the department to distinguish between those who simply paraded around the Capitol and those who broke in with a provable intent to interfere with Congress.

Before the Supreme Court weighed in, the Justice Department had charged more than 300 Jan. 6 defendants with “obstruction of an official proceeding” for their alleged roles in seeking to prevent Congress from certifying the results of the 2020 election. The charge was often the most serious that Jan. 6 defendants faced.

But in a 6-3 opinion that scrambled the justices’ usual ideological alignment, the Supreme Court ruled that the 20-year-old obstruction statute, passed in the aftermath of the Enron financial scandal, can apply only to defendants who took steps to impair physical evidence, like shredding documents or concealing them from investigators. The high court’s interpretation reversed lower-court rulings and roiled dozens of ongoing prosecutions stemming from the riot, particularly in cases where defendants faced no other felony charges.

In addition, federal judges released from prison a slew of defendants convicted of obstruction while they await further legal arguments about the future of their cases. In other Jan. 6 cases, particularly those involving defendants who scuffled with or impeded police, prosecutors have turned to a civil disorder charge in lieu of the obstruction count. That charge is also a felony but carries only a five-year maximum sentence....

Wednesday’s filing in the case against the Chilcoats confirms that prosecutors believe they have found ways to revive or sustain the obstruction charges in some cases. They say the evidence suggests the Chilcoats both knew that their incursion onto the Senate floor in the Capitol would prevent Congress from meeting on Jan. 6 to tally electoral vote certificates — the very physical evidence they say the obstruction law was meant to cover.

"Making Victims Relevant: Republican Freedom and the Justification of Criminal Punishment"

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

Although punishment theories have overall been slow to incorporate the move towards victims’ rights, Braithwaite & Pettit’s republican theory has been a notable exception.  This paper is concerned with identifying the ways in which republican theory urges us to rethink the philosophy and practice of punishment, positioning victims at its centre, as well as with the theory’s evaluation.

According to republican theory, crime compromises the victim’s ‘dominion’, that is a type of freedom as non-domination thicker than freedom as non-interference.  In this context, punishment is justified as the rectification of the victims’ diminished dominion, through restorative justice practices backed by the threat of deterrence and incapacitation as a last resort.  It is argued that in linking the levels of justification and practice, republican theory renders the concept of ‘dominion’ indispensable to the development of a normative framework for victim-focused punishment, while avoiding the collapse of the criminal justice system into a system of tort law.

But does the turn to victims that the republican theorists envision come at a cost for offenders?  On the one hand, their conception of victim-focused punishment successfully integrates a principle of parsimony, thereby reconciling the interests of victims and offenders.  On the other hand, the pure consequentialist character of republican theory, reflected in the penal practices it envisions, is not easily reconcilable with the mandate for a stable protection of offenders’ rights and the principle of proportionality.  It is suggested that the way forward requires at the level of theory a synthesis between republicanism and versions of backward-looking justifications of punishment, and, at the level of practice, an effort to implement responses to crime which do not set up victims and offenders for a zero-sum game.

Former Prez Trump details his proposals for "tough new sentences on illegal alien criminals"

This new Daily Signal article, headlined "Trump Pledges Death Penalty for Criminal Illegal Aliens Found Guilty of ‘Child or Woman Sex Trafficking’," reports on some of the sentencing comments today of former Prez Donald Trump when he was speaking at the southern border.  Here are excerpts:

With completed border wall to his right and unused construction materials to his left, former President Donald Trump told reporters Thursday in Arizona that if he wins the Nov. 5 election and returns to office in January, he will impose the death penalty on sex traffickers.

“We will seal the border, stop the invasion, and launch the largest deportation effort in American history. We will impose tough new sentences on illegal alien criminals,” Trump said, adding that “these include: [a] 10-year mandatory minimum sentence for anyone guilty of human smuggling; a guaranteed life sentence for anyone guilty of child trafficking; and a death penalty for anyone guilty of child or woman sex trafficking.”

Trump named other crimes that should result in the death penalty, such as “killing our police, sheriffs, Border Patrol, ICE, or [other] law enforcement officials.”

“Federal law allows for prosecutors to seek the death penalty against child sex traffickers if the victim is killed, or a life sentence if the victim survives,” Charles “Cully” Stimson, deputy director of the Center for Legal and Judicial Studies at The Heritage Foundation, told The Daily Signal.

Some prior related posts:

• Former Prez Trump again talking up the death penalty as a way to address drug problems
• Spotlighting how a change in federal Administrations could lead to a big change in federal capital punishment administration 
• Noticing a notable capital shift in Democrats' campaign platform

"Legislatures and Localized Resentencing"

The title of this post is the title of this new paper available via SSRN authored by Ronald Wright and Kay Levine.  Here is its abstract:

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases.  These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels.  In the discretionary channels, the chief local prosecutor has the authority both to decide whether to participate in the program and to select individual cases for review.  Through original interviews and review of publicly available data, we highlight how this practice is working in California and Washington State.  We observe that when local prosecutors exercise their discretion under the new statute, they necessarily produce uneven results around the state, as some counties embrace resentencing practices, some use their power sparingly, and others leave it untouched.

This local variation is fully consistent with the legislative design.  In effect, these statutes grant to local officials certain powers previously associated with parole boards, but the practices are not synonymous with parole.  The statutory design also opens up a gridlocked political process; this grant of authority empowers the state’s most change-oriented prosecutors to act while more cautious prosecutors wait and see.

Noticing a notable capital shift in Democrats' campaign platform

HuffPost has this notable new piece noting a notable new shift in one party's platform on a notable old punishment.  The piece headlined "Democrats Scrub Death Penalty Opposition From Campaign Platform: For the first time in more than a decade, the Democratic Party platform includes no mention of abolishing the death penalty."  Here are excerpts from a piece covering a lot of interesting ground:

In 2016, the Democratic Party became the country’s first major political party to formally call for abolishing the death penalty.  The party’s platform that year, released in the aftermath of a high-profile botched execution, called the punishment “cruel and unusual,” “arbitrary and unjust,” expensive to taxpayers and ineffective in deterring crime.  The document also nodded to the people exonerated from death row as evidence of the risk that the government will kill innocent people.

During the 2020 campaign, the Democratic platform reiterated support for abolishing the death penalty.  When Joe Biden entered office the following year, he became the first president to publicly oppose capital punishment — a dramatic shift from his time in the Senate, when he once bragged that the sweeping crime bill he was pushing did “everything but hang people for jaywalking.”

However, as his term winds down, Biden has little to show for the party’s promise to abolish capital punishment.  On Monday, the Democrats approved their 2024 platform, which includes no mention of the death penalty.  This year’s platform marks the first time since 2004 the platform has not mentioned the death penalty (the 2008 and 2012 platforms called for making the punishment less arbitrary)....  The Democratic National Committee did not respond to an email asking if the party still supports abolishing the death penalty....

Meanwhile, Republicans are gearing up for another execution spree if Trump wins reelection.  Project 2025, an 887-page document outlining plans for a second Trump presidency released by a coalition of conservative groups, suggests that Trump execute every remaining prisoner on death row.  The document also envisions pursuing the death penalty in cases involving violence and sexual abuse of children.  In a footnote, the document notes that this would require convincing the Supreme Court to overrule its previous findings on when the death penalty is appropriate, but that “the [Justice] department should place a priority on doing so.”  Trump reportedly plans to announce his support for expanding the death penalty to non-homicide crimes....

In addition to dropping any mention of the death penalty, this year’s Democratic platform noticeably backs away from several criminal justice reforms the party embraced in 2020, when the police killing of George Floyd prompted nationwide protests against police brutality.  The criminal justice section of the 2020 platform opens by declaring that the system is “failing” to keep people safe and deliver justice.  It contrasts the promise of America as the “land of the free” with the reality that the U.S. has the highest rate of incarceration in the world and calls for “dramatically” reducing the number of people held in prisons and jails.

The 2020 platform includes support for several specific policies that are either absent from the 2024 platform or have been considerably toned down, including: ending life-without-parole sentences for people under 21, banning police from using chokeholds, decriminalizing cannabis, eliminating cash bail and repealing mandatory minimum sentences.

This year’s platform makes no mention of mass incarceration.  Instead, it describes the need to “fund the police” and touts DOJ funding for more police officers.  The platform claims Biden “took action to enhance public trust” by signing a “historic” executive order directing federal law enforcement agencies to ban chokeholds “unless deadly force is authorized” — a move described by civil rights groups as only a first step on police reform.

Prior related post:

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

Notable Third Circuit panel ruling rejects extending Bivens to address inmate abuse in federal prison

A lengthy new opinion by a Third Circuit panel in Kalu v. Spaulding, No. 23-1103 (3d Cir. Aug. 21, 2024) (available here), covers a lot of notable federal prison law and federal prison realities.  Here is how the opinion for the Court begins: 

Five decades ago, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court first authorized an implied damages remedy for constitutional claims brought against federal officials. Since then, in recognition of the Constitution’s separation of legislative and judicial power, the Court has greatly narrowed the availability of new Bivens actions. “At bottom, creating a cause of action is a legislative endeavor.” Egbert v. Boule, 596 U.S. 482, 491 (2022).

Here, appellant John O. Kalu, a federal inmate, seeks to bring Eighth Amendment claims against federal prison officials. He alleges a prison guard sexually assaulted him on three separate occasions, prison officers subjected him to inhumane conditions of confinement, and the prison’s Warden failed to protect him from the abuse through deliberate indifference. He seeks damages under Bivens to redress those harms. Heeding the Supreme Court’s recent and repeated warning that we must exercise “caution” before implying a damages remedy under the Constitution, see id.; Hernandez v. Mesa, 589 U.S. 93, 100–01 (2020), we decline to extend the Bivens remedy to Kalu’s claims. For the following reasons, we will affirm.

This panel opinion especially caught my eye because of a relatively short concurrence by Judge Restrepo, who is a Vice Chair on the US Sentencing Commission. Here is how his opinion gets started:

Although I agree with the Majority that this case presents a new Bivens context, I write separately to highlight the alarming reports of pervasive staff-on-inmate sexual abuse within the Bureau of Prisons and corresponding flaws in the administrative remedy process, and to note recent actions the Department of Justice, the United States Sentencing Commission, and Congress have taken since those findings were disclosed.

Lots of notable front page sentencing issues in next week's sentencing of Backpage

I have not closely followed the legal sagas that have surrounded the website Backpage, which was the huge classified advertising website shut down and seized by federal law enforcement in April 2018.  But next week the Backpage saga has a federal sentencing stage, and this Law360 piece provides a flavor for just some of the issues raised:

Prosecutors asked an Arizona federal judge Monday to sentence two former executives of the defunct classifieds service Backpage.com and the site's co-founder to 20 years in prison after they were found guilty of several counts over an alleged $500 million prostitution scheme.

In a sentencing memorandum, prosecutors said the crimes former executives Scott Spear and John Brunst and Backpage co-founder Michael Lacey were convicted of caused extraordinary harm and amounted to "one of the internet's largest and longest-running criminal empires."

Prosecutors say the website facilitated prostitution through ads. Spear and Brunst were convicted of multiple counts after a 28-day trial in November while two other executives were acquitted. Lacey was found guilty of one count of money laundering; the jury was deadlocked on dozens of other charges against him. The mixed verdict ended a sprawling case that saw its first trial end in a mistrial in 2021....

In April, U.S. District Judge Diane J. Humetewa rejected some of the jury's findings, tossing nearly three dozen transactional money laundering charges, as well as Travel Act charges against Lacey, but kept the rest of the verdict intact. Sentencing is scheduled for Aug. 27 and 28. Prosecutors said Monday they were "unaware of any mitigating circumstances" for the purposes of sentencing. Spear, Brunst and Lacey showed no remorse following their convictions, prosecutors said.... The prosecutors argued that victim impact statements submitted to the court don't fully encapsulate the harm Backpage inflicted, saying some trafficking victims were killed by perpetrators who found them on the site.

Lacey, Spear and Brunst all requested probation in their own sentencing memorandums filed Monday, arguing that they never intentionally broke the law. Lacey claimed that his only felony conviction was for a "financial crime that he purportedly committed upon the idea and advice of two credentialed lawyers, wherein all reporting rules were followed."....

Spear similarly said in his memorandum that his actions were in line with a law-abiding life.... Brunst said he was never employed by Backpage, but rather worked for Village Voice Media Holdings starting in 1992 and later at Medalist Holdings, a successor entity after VVMH sold its newspapers.

Over at Reason, the arguments surrounding one defendant get extra attention in a piece here headlined "Feds Seek 20-Year Sentence for Backpage Co-Founder Michael Lacey; It's an insane ask for someone convicted of just one nonviolent offense." Here is an excerpt:

Lacey was charged — along with other former Backpage executives — of using Backpage to knowingly facilitate prostitution, in violation of the U.S. Travel Act.  Two of the defendants were acquitted of all such offenses and two of the defendants were found guilty of some of them. But the jury could not reach a conclusion when it came to Lacey. U.S. District Judge Diane Humetewa found there was insufficient evidence to sustain most of the remaining 84 counts against him.

Now, prosecutors want the judge to simply act, for sentencing purposes, as if those charges are all true. Federal prosecutors are also putting Lacey on trial for these charges again — which means that if he is eventually convicted, he could wind up being sentenced twice for the same conduct.

This case and these defendants have many more notable elements, and I found reviewing some of the sentencing memoranda fascinating — eg, the government's memo reports that the PSR recommended 1080 months (90 years) for Spear, who is 73 years old.  Here, thanks to Law360, are the sentencing submissions:

•  US Memo
•  Spear Memo
•  Lacey Memo
•  Brunst Memo