Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

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

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

“That’s comforting,” Gorsuch quipped.

"The Effect of Outside Temperature on Criminal Court Sentencing Decisions"

The title of this post is the title of this new paper now available via SSRN authored by Sally Evans and Peter Siminski. Here is its abstract:

Climate change has stimulated growing interest in the influence of temperature on cognition, mood and decision making. This paper is the first investigation of the impact of temperature on the outcomes of criminal court cases.  It is motivated by Heyes and Saberian (2019, AEJ: Applied Economics), who found strong effects of temperature on judges' decisions in immigration cases, drawing on 207,000 cases.  We apply similar methods to analyse 2.8 million criminal court cases in the Australian state of New South Wales from 1994 to 2019.  Most of the estimates are precise zeros.  We conclude that outcomes of criminal court cases (which are far more prevalent globally than immigration cases) are not influenced by fluctuations in temperature, an unsurprising but reassuring result.

Crack is still wack for thousands in Florida still carrying unconstitutional convictions from 1980s

This recent AP story, headlined "Florida prosecutor seeks to clear records of people charged with buying police-made crack in 1980s," highlights how remedies for unconstitutional convictions can often be a very long time in coming (if they come at all).  Here are the details:

A Florida prosecutor says he will seek to vacate as many as 2,600 convictions of people who bought crack cocaine manufactured by the Broward County Sheriff’s Office for sting operations between 1988 and 1990.

The Florida Supreme Court ruled in 1993 that people couldn’t be charged in cases where the sheriff’s office made the crack cocaine and undercover deputies then sold it to buyers who were arrested and charged.

Broward County State Attorney Harold F. Pryor said Friday that while his office was reviewing old records, prosecutors realized that many people may still have criminal charges or convictions on their records because of the sting operation. “It is never too late to do the right thing,” Pryor said in a statement.

It’s just one example of how the crack cocaine epidemic of the 1980s and early 1990s led to harsh police practices and heavy criminal penalties. Some people may have been convicted of serious felonies because they bought drugs within 1,000 feet (300 meters) of a school. Conviction under that law required at the time that defendants be sentenced to at least three years in prison.

“They were arresting people not for selling, but for purchasing,” Ed Hoeg, a defense lawyer, told the Sun Sentinel of Fort Lauderdale. At the time, Hoeg was a public defender who represented Leon Williams, whose appeal led to the state Supreme Court outlawing the practice. “They had detention deputies posing as dealers,” Hoeg said. “They would sell it, and these poor people who were addicts were buying it. And they were selling it within 1,000 feet of schools, so the penalties would be greater.”

The sheriff’s office said at the time that it began making crack because it didn’t have enough of the seized drug to use in its sting operations and because it didn’t have to later test the cocaine content of crack made by a sheriff’s office chemist. “We find that the law enforcement’s conduct here was so outrageous as to violate Florida’s due process clause,” the state Supreme Court wrote in the decision....

The review will take “a considerable amount of time,” Pryor said. He said his office will contact people who may be affected.

Prez-Elect Trump reiterates pledge to grant Jan 6 pardons on "first day" in office

Prez-Elect Donald Trump conducted a new interview during which, according to this NBC News piece, he discussed his pardon plans for January 6 defendants.  Here is the start of the article:

President-elect Donald Trump said he is looking to issue pardons to his supporters involved in the attacks on the U.S. Capitol on Jan. 6 as soon as his first day in office, saying those incarcerated are “living in hell.”

Trump’s comments, the most sweeping he’s made since winning the 2024 election, came during an exclusive interview with “Meet the Press” moderator Kristen Welker. He also said that he will not seek to turn the Justice Department on his political foes, and warned that some members of the House committee that investigated the Jan. 6 attack “should go to jail.”  On his first day in office, Trump said he will bring legal relief to the Jan. 6 rioters who he said have been put through a “very nasty system.”

“I’m going to be acting very quickly. First day,” Trump said, adding later about their imprisonment, “they’ve been in there for years, and they’re in a filthy, disgusting place that shouldn’t even be allowed to be open.”  Trump said that there “may be some exceptions” to his pardons “if somebody was radical, crazy” and pointed to some debunked claims about anti-Trump elements and law enforcement operatives infiltrating the crowd.

At least 1,572 defendants have been charged and more than 1,251 have been convicted or pleaded guilty in the attack. Of those, at least 645 defendants have been sentenced to periods of incarceration ranging from a few days to 22 years in federal lockup.  There are roughly 250 people currently in custody, most of them serving sentences after being convicted. A handful are being held in pretrial custody at the order of a federal judge.

Trump didn’t rule out pardoning individuals who had pleaded guilty, including when Welker asked him about those who had admitted to assaulting police officers. “Because they had no choice,” Trump said.

Asked about the more than 900 others who had pleaded guilty in connection to the attack but were not accused of assaulting officers, Trump suggested that they had been pressured unfairly into taking guilty pleas. “I know the system.  The system’s a very corrupt system,” Trump said. “They say to a guy, ‘You’re going to go to jail for two years or for 30 years.’ And these guys are looking, their whole lives have been destroyed. For two years, they’ve been destroyed.  But the system is a very nasty system.”

The crimes that have been charged range from unlawful parading to seditious conspiracy in the sprawling Jan. 6 investigation that included rioters captured on video committing assaults on officers, and who admitted under oath that they’d done so.

If Trump makes good on this pledge to grant pardons to the vast majority of Jan 6 defendants on this first day, he will set all sorts of modern clemency records.  These clemency statistics assembled by DOJ's Office of the Pardon Attorney show it has been half a century since a President has granted more than a few pardons at the start of a term in the Oval Office, and it has been a full century since a President had done more than 1200 pardons in his entire tenure.  (Notably, these DOJ data leave out mass clemencies like Prez Biden's mass marijuana possession pardons; if the Trump does Jan 6 pardons en masse, I am not quite sure how best to run the numbers.)

And, of course, as I have covered in recent posts here and here, lots of folks are urging Prez Biden to go big on clemency in his final weeks in office.  Biden statement in support of his most recent clemency decision suggests, when it comes to his child, he largely agrees with Trump's view on the "very nasty" federal criminal justice.  But since I dooubt, especially in this arena, that Biden is capable of "acting very quickly," we may have to keep waiting to find out if any other people's children might Biden's grace.

Excitingly, any and everyone interested in these issues still has time to register for the online event, "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power," being hosted on December 10 by the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  More details and a list of panelist can be found on this event page.  

A few of many recent related posts:

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

Highlighting the successes and limited availability of veteran treatment courts

Law360 has this lengthy new piece, headlined "Veterans Courts Help Some, But Leave Many Others Behind," which provides an effective overview of veteran treatment courts and their limits. I recommend the piece in full, and here are excerpts:

Veterans treatment courts have helped thousands of former service members get much needed help for addiction and mental health problems rather than being incarcerated. But strict eligibility criteria, difficulty identifying veterans in the justice system, and a limited number of courts combine to turn away many veterans who most need their services, according to veterans' advocates.

So those advocates are trying to change how the courts operate to ensure that no veteran in need falls through the cracks. "This is not radical. This is about giving a veteran who raised their right hand to serve the United States a hand up, not a handout," said retired U.S. Army Colonel D.J. Reyes, who mentors veteran defendants in Florida. "They made a mistake. Does that mean we just throw them in prison with no rehab or treatment?"...

Hundreds of diversionary courts intended specifically for criminal defendants who served in the military have sprung up across the country since the first veterans treatment court, or VTC, was established in Buffalo, New York, in 2008.

VTCs integrate the criminal justice system, the VA, drug treatment programs, community organizations and veteran mentors to offer help and services rather than incarceration to former service members who run into trouble with the law due to substance abuse or mental health issues.

A growing number of veterans need that help, according to experts, who blame that increase on post-traumatic stress, traumatic brain injuries, addiction, military sexual trauma and difficulty readjusting to civilian life after repeated deployments during the wars in Iraq and Afghanistan.

One in three veterans report having been arrested, according to the Council on Criminal Justice's Veterans Justice Commission. Around 181,000 veterans are currently behind bars, according to All Rise, a nonprofit that provides training and best practices for specialized treatment court programs.

"When we take our young men and women, and we train them to be part of the most lethal force on the planet, and then we ask them to go do their job, some of them struggle when they come home with just being normal again," said Veterans Justice Commission Director Jim Seward.

So VTCs are intended to sentence veterans who plead guilty to usually lower-level, nonviolent offenses to addiction and mental health treatment and mentorship rather than prison. Defendants attend regular treatment sessions, discuss their progress with the court, and undergo random drug testing, among other requirements....

The programs have been successful, according to experts. VTCs help approximately 15,000 veterans each year, according to Scott Tirocchi, division director of Justice for Vets, All Rise's veterans court division.

The court in Hillsborough, Florida, where Reyes mentors defendants, averages a single-digit recidivism rate, he said. In Ohio, Cuyahoga County's court has a graduation rate of 76.2%, according to Judge Andrew J. Santoli, who presides over that VTC. And only 9.1% of the participants of the VTC in Oklahoma County, Oklahoma, are charged with a new offense after completing the program, according to Program Coordinator Kiel Kuroki, a U.S. Air Force veteran who participated in a veterans diversion program himself....

But many of the veterans who most need help aren't getting it, advocates say.  According to the U.S. Department of Justice, VTCs only serve about 10% to 15% of justice-involved veterans....

[T]he exceedingly limited number of VTCs further exacerbates the lack of access.  Around 85% of the counties in America don't have a VTC, and there are barely any veterans courts in the federal court system, according to Seward.

Congress did pass the Veterans Treatment Court Coordination Act in 2020 directing the attorney general to establish a grant program to help fund state and local VTCs, but there seems to be no organized effort to create VTCs at the federal level. Only a few federal VTCs have been established by individual federal judges.... The result is that, while VTCs have helped many service members, a good deal of veterans are still falling through the cracks.

Some of many, many prior related posts:

• Should prior military service reduce a sentence?
• "Military Veterans, Culpability, and Blame" 
• "Justice for Veterans: Does Theory Matter?"
• "Executive Summary: National Survey of Veterans Treatment Courts"
• Notable RAND review of data and research on "justice-involved veterans" 
• CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing" 
• "Best Practices: Report on Improving Veterans’ Incarceration and Reentry in Florida"
• Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans 
• How about some clemency grants, Prez Biden, to really honor vets in need on Veterans Day?

SCOTUS grants cert to address whether/when amended habeas petition is a second application

The Supreme Court on Friday arfternoon granted cert via this order list in two new matters.  One case, Rivers v. Lumpkin, involves an issue of modern federal habeas procedure.  Here is how this cert petition, filed on behalf of a Texas prisoner, presented the question:

Under the federal habeas statute, a prisoner “always gets one chance to bring a federal habeas challenge to his conviction,” Banister v. Davis, 590 U.S. 504, 509 (2020). After that, the stringent gatekeeping requirements of 28 U.S.C. § 2244(b)(2) bar nearly all attempts to file a “second or successive habeas corpus application.” Here, petitioner sought to amend his initial habeas application while it was pending on appeal. The Fifth Circuit applied § 2244(b)(2) and rejected the amended filing.

The circuits are intractably split on whether § 2244(b)(2) applies to such filings.  The Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits hold that § 2244(b)(2) categorically applies to all secondin-time habeas filings made after the district court enters final judgment.  The Second Circuit disagrees, applying § 2244(b)(2) only after a petitioner exhausts appellate review of his initial petition.  And the Third and Tenth Circuits exempt some second-in-time filings from § 2244(b)(2), depending on whether a prisoner prevails on his initial appeal (Third Circuit) or satisfies a seven-factor test (Tenth Circuit).

The question presented is: Whether § 2244(b)(2) applies (i) only to habeas filings made after a prisoner has exhausted appellate review of his first petition, (ii) to all second-in-time habeas filings after final judgment, or (iii) to some second-in-time filings, depending on a prisoner’s success on appeal or ability to satisfy a seven-factor test.

Another report on how pardon possibilities are impacting Jan 6 prosecutions

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

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

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

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

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

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

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

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

A few recent related posts:

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

"Major-Questions Lenity"

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

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

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

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

Are "pragmatic prosecutors" now the next big thing?

The question in the title of this post is promoted by this new piece from Lisel Petis over at R Street, which is titled "Move over progressive prosecutors, pragmatic prosecutors are the new 'it' thing."  Though I have never been an "it" thing, I do sometimes think of myself as pragmatic, so I am intrigued by this latest prosecutorial version of "new Coke."  I recommend the piece in full, and here is how it gets started (with links from the original):

If you follow the arc of criminal justice over the past few decades, you can see clear trends emerge. From the “tough on crime” era of the 1980s and 1990s that fueled mass incarceration to the progressive wave advocating sweeping reforms that were intended to keep more people out of jails and prisons, the pendulum has swung dramatically in just a short period of time.  But now we are entering what might be a “sweet spot” that better balances fairness and safety. Evidence of this trend is apparent in a new kind of prosecutor popping up in states across the country. 

Despite a recent drop in national crime rates—and drastic reductions since the 1990s — public concern about crime and safety remains high.  High-profile incidents, sensationalized media coverage, and a rise in homelessness have fueled a perception that crime is getting worse.  Much of the blame has been directed at so-called “soft-on-crime” policies and progressive prosecutors, whose reforms — such as reducing the use of cash bail, diverting low-level offenders from the system, and shorter sentences — are often criticized as prioritizing offenders over victims.

Enter the pragmatic prosecutor. This “new” type of prosecutor isn’t about choosing sides between punitive crackdowns or lenient approaches. Instead, they are reimagining justice as a complex ecosystem that requires strategic, targeted interventions that draw from the strengths of both philosophies.

Another week with another notable set of prison headline and stories

A number of notable and mostly disheartening press pieces aabout prison realities caught my eye this week, and here is a round up:

From the AP, "The US government is closing a women’s prison and other facilities after years of abuse and decay"

From the AP, "Justice Department announces sweeping reforms to curb suicides in federal prisons and jails"

From Cleveland.com, "‘Wreaking havoc’: Cleveland gang emulated Mafia, killed man and ran drug-ring, feds say"

From The Guardian, "Inmates burn themselves in protest at ‘inhumane’ Virginia prison conditions"

From Honolulu Civil Beat, "The Mental Health Crisis In Hawaii’s Prisons: ‘The Suicides Keep Coming’"

From the Marshall Project, "After Jail Deaths and No Justice, This Kentucky Lawyer Tried to Make a Difference"

From Stateline, "State prisons turn to extended lockdowns amid staffing shortages, overcrowding"

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

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

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

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

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

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

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

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

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

Prior related post:

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

Lots of news and new resources from the US Sentencing Commission

Via email yesterday afternoon, I received news of a number of new items coming from the US Sentencing Commission.  Drawing text and links from the email, here are just some of items with a few links:

Notice of Public Meeting

The Commission has scheduled a public meeting for Thursday, December 19, 2024 at 2:00 pm (EST)he meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby).  The Commission will livestream and record this event.

The agenda follows:

• Vote to Adopt August 2024 Meeting Minutes
• Report from the Chair
• Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment....

Preliminary FY24 Fourth Quarterly Data Report 

The Commission released its first full look at the FY24 federal sentencing caseload.

Preliminary Data Highlights

• In FY24, 61,137 individuals were sentenced federally — representing a decrease from the previous fiscal year.
• Nearly equal proportions of individuals were sentenced for a drug (30.0%) or immigration (29.7%) offense.
• Methamphetamine was the most common drug involved in federal drug offenses (45.8%) followed by fentanyl (21.8%) and powder cocaine (19.4%). 

2023 Firearms Amendments

Commission staff break down the 2023 changes and additions to the firearms guideline, including new offenses and increased penalties. They answer frequently asked guideline questions about proliferation of firearm switches and auto sears, and more.

Robbery Primer

This primer offers an overview of statutes, sentencing guidelines, and case law related to selected federal robbery offenses.

"Compassionless Plea Bargaining"

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

Too often, the guilty plea hearing process practiced in our federal courts fails to adequately ensure the validity of a defendant's change of plea decision.  Rather than engage in colloquies that are sufficiently in-depth and truly aimed at ascertaining voluntariness and defendant comprehension, critical details are frequently glossed over, and defendant guilty pleas are accepted without meaningful inquiry.

While academics have skillfully critiqued the Sixth Amendment and its trial-focused provisions, comparatively scant focus has been expended on the equally, if not more, critical change of plea hearing.  Compassionless Plea Bargaining seeks to fill this gap with its focus on a recent controversy that threatened to engulf the Biden Administration's Department of Justice into an unfortunate — and arguably embarrassing — controversy.

In December 2018, President Donald Trump signed into law the First Step Act.  Designed primarily to address the nation's mass incarceration crisis, one of its more overlooked features was a provision that addressed sentencing modification.  Commonly referred to as compassionate release, the Act sought to ease the ability of defendants to obtain a modification of their sentence in the event of an extraordinary life circumstance.  During the COVID-19 pandemic, as the virus spread rapidly through correctional facilities, compassionate release requests predictably skyrocketed — and so did the workload of federal prosecutors tasked to respond to these motions.  As a result, many U.S. Attorney's Offices included provisions in plea agreements requiring defendants to forgo their compassionate release rights under the Act in exchange for the concessions offered by the government.  A brewing controversy ensued, with critics, including the National Association of Criminal Defense Lawyers, arguing that the government was leveraging its substantial negotiating power, and defendants were often agreeing to such waivers in the absence of a full awareness of the attendant consequences.  In response, Attorney General Merrick Garland discontinued the practice in March 2022.  However, the reprieve is likely to be short-lived, as future attorneys general will almost certainly resuscitate the practice.

The byproducts of a guilty plea are varied, deeply consequential, and, as evidenced in the compassionate release context, can even be fatal.  This Article explains why federal change of plea hearings too often fail to adequately assess the knowledge and voluntariness underlying a defendant's guilty plea and offers a proposal for reform.

Rounding up some coverage on whom Prez Biden should give clemency to next

In this post on Monday, I flagged a lot of early commentary focused on Prez Biden's decision Sunday night to pardon his son Hunter.   There has been, unsurprisingly, continuing discussion of this pardon and its echoes.  One theme to the next round of pieces that I find especially interesting concerns who else should get the benefit of Biden's clemency pen.  Here is a round up of some of these pieces: 

From the AP, "Joe Biden’s pardon of his son Hunter spurs broader discussion on who else should be granted clemency"

From Axios, "Congress hands Biden a huge Hunter-driven pardon wishlist"

From Forbes, "Here’s Who Else Biden Could Pardon Before He Leaves Office — Beyond Hunter Biden"

From Fox News, "Jeffries wants Biden to dole out pardons for people aggressively prosecuted 'for nonviolent offenses'"

From Fox News, "Who else might Biden pardon after he spared Hunter from sentencing?"

From the Independent, "Who else could Biden pardon?"

From Mother Jones, "Hunter Got a Pardon. Will Drug War Victims?"

From the New York Times, "After Biden Pardons His Son, Prison Inmates Hope They’re Next"

From the Washington Post, "The people Joe Biden should have pardoned along with his son"

From wbur, "Rep. Ayanna Pressley is calling on Biden for more sweeping pardon action"

As I have mentioned before, folks interested in broader clemency matters may want to check out my recent Sentencing Matters Substack post on clemency traditions.  In addition, there is still time to regster for this timely December 10 event I will be moderating on federal clemency topics titled "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power."   

Prison Policy Initiative releases its latest annual view of "Winnable criminal justice reforms"

The folks at Prison Policy Initiative have made an annual tradition of releasing a significant report looking forward to reform policy and politics in the new year.  The latest variation, available here, is titled "Winnable criminal justice reforms in 2025," and here is the report's introduction and linked TOC:

In this year's guide to winnable criminal justice reforms, we've added new information on solitary confinement, fines and fees reform, decriminalizing traffic offenses, and so-called "truth in sentencing" laws.  We've also updated all of our sections with new example bills, resources where you can learn more, and we've reorganized our guide to make it easier to find the reforms you're interested in.  While this briefing is not intended to be a comprehensive platform, we've curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts on reducing incarceration and reversing harms experienced by people impacted by the criminal legal system, without further investments in that system.

This year's guide to winnable criminal legal system reforms comes at a time when change feels like an uphill battle across the country. After the results of the 2024 election, advocates will likely have to work even harder to combat new policies that threaten to worsen mass incarceration.  For that reason, we've also included some talking points to use to fight back against the return of 1990's style "tough-on-crime" policies that will accelerate the growth of prison populations.

Because each state's criminal legal system varies so much — from law and procedures, the data collected, and even how the same words are defined — it can be difficult to apply lessons from other states to the same problem in one's own.  This guide is designed to facilitate the sharing of ideas and information across states.  That said, while we point to multiple bills, model legislation, and regulations in this document, we also recognize that many of these examples reflect compromise and could be strengthened or made more transformative.  This information is intended to serve as a resource as you determine which problems are a priority in your state and which lessons from elsewhere are most useful.

Expand alternatives to criminal legal system responses to social problems (6 recommendations)

Protect the presumption of innocence so people receive a fair shot at justice (2 recommendations)

Decrease the length of prison sentences and provide pathways for all people to exit prison (5 recommendations)

Treat people humanely during incarceration (6 recommendations)

Treat people on community supervision fairly, and keep them thriving in the community (4 recommendations)

Set people up to succeed when they exit prisons and jails (4 recommendations)

Give incarcerated and formerly incarcerated people political representation and voice (4 recommendations)

Reduce spending on the criminal legal system and increase investments in communities (3 recommendations)

Tips to fight back against the return of 1990's style tough-on-crime measures

"Punishment and Resources"

The title of this post is the title of this new book chapter authored by Mark White and available via SSRN. Here is its abstract:

Philosophers of punishment have paid little attention to resource constraints, which have an undeniable impact on how various approaches to punishment work in the real world.  It has fallen on economists, with their central focus on scarcity and opportunity cost, to analyze the resource demands of different philosophies of punishment.  However, the utilitarian nature of mainstream economics limits the scope of economic theories of punishment to deterrence, which fits naturally into mathematical economic techniques, as opposed to retributivism, the principled nature of which resists quantification. 

This chapter explores the resource implications of punishment.  It starts by identifying shortcomings of the economic analysis of deterrence, and then considers proposals from economists and legal scholars to incorporate resource constraints into retributivism, many of which introduce some degree of quantification or consequentialism.  The rest of the chapter proposes an alternative choice procedure, based on the theory of judicial decision-making of Ronald Dworkin, which enables incommensurate principles and goals to be considered and balanced against each other, with resource constraints serving a secondary role in resolving conflicts.  This way of including resource concerns into discussions of punishment emphasizes their importance while avoiding the reduction of all aspects of punishment to the terms of efficiency, which would distort their true nature and introduces unnecessary noise and inaccuracy to the analysis.

Missouri completes execution "only" 17 years after child murder

As reported in this AP article, Missouri this evening completed an execution of a man who sexually assaulted and strangled a 9-year-old girl in 2007. Here are some of the details:

Rowan Ford knew Christopher Collings as “Uncle Chris” after he spent several months living with her family. On Tuesday, Collings was executed for sexually assaulting and killing the child, then dumping her body in a sinkhole outside a small Missouri town.

Collings, 49, was put to death with a single dose of pentobarbital on Tuesday evening at the state prison in Bonne Terre, Missouri. The execution was the 23rd in the U.S. this year and the fourth in Missouri. Only Alabama with six and Texas with five have performed more executions in 2024....

Collings’ fate was sealed Monday when the U.S. Supreme Court turned aside an appeal and Republican Gov. Mike Parson denied clemency.... Parson, in a statement, said he hopes that “all those who knew and loved Rowan may find peace in knowing that justice has been done.”

Rowan was a fourth-grader described by teachers at Collings’ trial as a hard-working and happy student, a lover of Barbie who had her room painted pink. Collings was a friend of Rowan’s stepfather, David Spears, and lived for several months in 2007 at the home Rowan shared with her mother, Colleen Munson, and Spears. Collings sometimes helped Rowan with her homework.

Collings told authorities that he drank heavily and smoked marijuana with Spears and another man in the hours before the attack on Rowan, according to court records. Collings said he picked up the still-sleeping child from her bed, took her to the camper where he lived, and assaulted her. Collings planned to take Rowan back home, leading her outside the camper facing away from him so that she couldn’t identify him, he said in his confession. But when moonlight lit up the darkness, Rowan was able to see Collings, he told police. He said he “freaked out,” grabbed a rope from a nearby pickup truck, and strangled her.

Given that modern average times between death sentences and executions is now about 20 years, it seems notable that Missouri completed this execution "only" 17 years after the offense.

"The Meaning of Life, In Michigan: Mercy from Life Sentences Under the State Constitution"

The title of this post is the title of this new paper authored by David Shapiro and Molly Bernstein available via SSRN.  Here is its abstract:

Properly understood, the “cruel or unusual” punishment clause of the Michigan Constitution grants every person sentenced to life in prison a meaningful right to obtain release by making a convincing showing of rehabilitation. Today, however, Michigan has among the nation's largest populations of people serving both formal and de facto life sentences without any meaningful possibility of release.  Michigan’s current life-sentence regime therefore violates the state constitution.

In 1850, Michigan revised its constitution to prohibit “cruel or unusual punishment” creating a contrast with the conjunctive “cruel and unusual punishments” clause of the federal Eighth Amendment.  Under Michigan’s disjunctive prohibition, cruelty standing alone made a punishment “cruel” and thus unlawful.  But what made a sentence “cruel”?

Our analysis of sentencing and punishment practices immediately before and after the 1850 constitutional convention sheds light on this question.  Michigan abolished capital punishment in 1846, shortly before its 1850 constitutional convention.  Life in prison became the punishment for crimes previously punished by death.  These life sentences were “without parole” because no system of parole existed at the time.  But life sentences — indeed all prison sentences —  allowed a meaningful opportunity for release through a different and long-established mechanism: the pardon power. Liberal use of the pardon power was considered necessary to provide a meaningful opportunity to obtain release based on rehabilitation, thereby preventing life sentences from becoming “cruel” and thus unconstitutional.  According to accompanying executive statements, mercy (in particular, to prevent death in prison) and rehabilitation were among the primary bases for granting clemency from prison terms.

This historical record shows that, at the time, truly permanent or final, inflexible punishments did not exist.  Instead, for sentences both short and long, the necessity and efficacy of incarceration was always subject to review. Significant additional evidence confirms that, originally understood, it was cruel for the state to impose any punishment beyond that necessary to rehabilitate offenders — especially punishments that foreclosed the chance of rehabilitation entirely. For example, debates among delegates at the state’s 1850 constitutional convention reflect a shared understanding that the primary if not exclusive purpose of criminal sanctions was reformation, along with deep skepticism of any punishment that permanently excluded people from civil society.  This rejection of permanent prison terms prevailed in Michigan for well over 100 years. Through most of the 20th century, no one in Michigan was sent to prison without a chance of release. Instead, even people technically serving “life without parole” were routinely considered for and awarded release based on rehabilitation.  This longstanding practice confirms that permanent prison terms were not just needlessly cruel, but “unusual” to the point of nonexistent.

Yet today, as both executive clemency and parole grants have dwindled, Michigan has among the nation's largest populations of people serving both formal and de facto death-by-incarceration sentences, which we define as a life sentence unaccompanied by a meaningful opportunity to secure release by demonstrating rehabilitation.  With a focus on the role of clemency as a meaningful form of sentence review — particularly contemporaneous with the adoption of Michigan’s “cruel or unusual” anti-punishment clause — this article adds to the body of evidence showing that, according to the original meaning of Michigan's constitution, mandating death in prison is cruel and unconstitutional.

Rounding up just some early commentary on a father's pardoning

I was inclined to wait a bit before doing a round up of commentary on Prez Biden's decision last night to pardon his son Hunter. (For the record, I suspect Prez Biden made the decision to pardon Hunter a long time ago, but it was officially announced yesterday.)  And yet, I have seen so many notable pieces in less than 24 hours, I think an (abridged) round up cannot wait.  So:

From The Atlantic, "Biden’s Unpardonable Hypocrisy"

From The Bulwark, "In Defense of the Hunter Biden Pardon"

From Fox News, "President Biden's pardon of son Hunter a political gift for Trump going forward"

From Fox News, "Joe Biden's pardon of son Hunter cements his legacy as liar in chief"

From The Guardian, "With his pardon of son Hunter, Joe Biden delivers a heartfelt hypocrisy"

From MSNBC, "Joe Biden chose fatherly love over his duties as president"

From New York magazine, "Joe Biden’s Pardon of Hunter Is So Much Worse Than It Needed to Be"

From the New York Times, "Biden’s Pardon for His Son Dishonors the Office"

From The New Yorker, "Biden’s Pardon of Hunter Further Undermines His Legacy"

From Politico, "Joe Biden’s Parting Insult"

From Slate, "The Hunter Biden Pardon Is Defensible — and Perverse"

From the Washington Post, "Biden did what many fathers would do: Save his child"

Intriguing new data on jail admissions from Prison Policy Initiative and Jail Data Initiative

Via email I received work of this this new briefing from the Prison Policy Initiative, completed in collaboration with the Jail Data Initiative, which offers broad data on jail admissions and populations. The full title of this briefing provides a basic overview: "Who is jailed, how often, and why: Our Jail Data Initiative collaboration offers a fresh look at the misuse of local jails. Using a novel data source, we examine the flow of individuals booked into a nationally-representative sample of jails along lines of race, ethnicity, sex, age, housing status, and type of criminal charge." Lots of the data is interesting, with some suprising and others not-so-suprising. Here are a few excerpts from the start and heart of the work:

Millions of people are arrested and booked into jail every year, but existing national data offer very little information about who these people are, how frequently they are jailed, and why they are jailed. Fortunately, we now have new data through a collaboration with the Jail Data Initiative to help answer these questions: In 2023, there were 7.6 million jail admissions; but 1 in 4 of these admissions was someone returning to jail for at least the second time that year. Based on the Jail Data Initiative data, we estimate that over 5.6 million unique individuals are booked into jail annually and about 1.2 million are jailed multiple times in a given year.  Further analysis reveals patterns of bookings — and repeat bookings in particular — across the country: The jail experience disproportionately impacts Black and Indigenous people, and law enforcement continues to use jailing as a response to poverty and low-level “public order” offenses....

The Bureau of Justice Statistics last collected charge data for jail populations in their 2002 Survey of Inmates in Local Jails. Given that the most recent jail offense data is over 20 years old, the Jail Data Initiative dataset offers a rare opportunity to analyze the top charges that people are booked under nationwide. Of course, the difference in data sources makes a fully apples-to-apples comparison of the 2002 data and the more recent Jail Data Initiative data impossible.  The data provided in the Bureau of Justice Statistics survey reflects self-reported information from people detained in a sample of local jails on a single day in June 2002, while the Jail Data Initiative data is based on jail bookings across a two-year time period and relies on administrative data.  Nevertheless, the overall trends since 2002 offer some valuable insights into the reasons people are detained in jails today:

• Drug charges appear to play a smaller role now than they did two decades ago, when the “war on drugs” was in full effect. In 2002, a quarter of people in jail were held for drug charges, compared to 14% of people admitted to jail in our 2021-2023 sample.
• Property charges also appear to represent a smaller portion of the jail population now than they did in 2002: Property charges are the top charge for 19% of jail admissions, compared to 24% of the jail population in 2002.
• In 2002, public order charges were the top charge for 25% of people in jail, but now, 31% of people admitted to jail are booked for a most serious charge related to public order, such as disorderly conduct, loitering, and public intoxication.
• We see very little change in the proportion of people in jail for violent charges: in 2002, 25% of people were in jail for a violent charge and in our analysis of more recent jail bookings, about 26% of jail bookings were for violent charges.

George Santos, AG Garland's charging memo, Pam Bondi, oh my

My post title not only reflects my Ozian mood, but also my effort to get extra attention for this last banger post by Jonathan Wroblewski over at the Sentencing Matters substack.  The post lurks under the sly simple query in its title: "What Ever Happened to Attorney General Garland’s Charging and Sentencing Policy?".  What follow is a kittle something for everyone at this particular moment of Justice Department reflection, especially as it relates to charging/plea practices and mandatory minimums.  I highly recommend the post in full, and here are just a few tastes: 

The fact that the U.S. Attorney insisted on [George] Santos pleading guilty to a charge carrying a mandatory minimum imprisonment sentence – and that he proudly proclaimed it publicly – was a bit puzzling, to me anyway. You see at the beginning of the Biden Administration, my job in the bureaucracy was to lead a Department working group that examined a whole host of sentencing and corrections policies and recommended changes to many of those policies for the new Administration....

As part of that work, the working group teed up for Attorney General Merrick Garland a new charging policy, actually several different drafts. And after many months of deliberation, in December 2022, Attorney General Garland issued a new policy. If you are not familiar with it, you can read it for yourself here. Out in the open for all to see. It told federal prosecutors not to charge statutes carrying mandatory minimum imprisonment terms except in limited circumstances....

Of course, we know why the U.S. Attorney charged the aggravated identity theft counts, and we know why he insisted that one of those counts be part of the plea agreement. The U.S. Attorney stood up at a podium and told us why. He wanted to be certain that George Santos would spend at least two years in prison. He wanted to take some sentencing options out of the hands of the presiding judge....

Of course, now, with the election of President Trump and the soon-to-be-nomination of Matt Gaetz Pam Bondi to be Attorney General, the policy ritual [for developing a new DOJ charging memo] is sure to begin again. Maybe seeing his friend and sex party companion charged with child sex trafficking, a charge carrying a mandatory minimum term of imprisonment, will lead Gaetz to think twice before reinstating the Sessions’ memo. Notably, back in 2018, the year President Trump signed the First Step Act into law, Bondi led a bipartisan group of 38 state attorneys general supporting criminal justice reform in the federal prison system. So maybe she’ll think twice before reinstating the Sessions’ memo. We’ll see. And maybe Trump will pardon George Santos. I hear there’s still an opening for several Assistant Attorneys General.

One last point – the Garland memo also made a promise –

The Department will develop and implement a software program that enables real-time, trackable reporting by districts and litigating divisions of all charges brought by the Department that include mandatory minimum sentences. Until that time, each United States Attorney’s Office and litigating division must report semi-annually to the Executive Office for United States Attorneys the number and percentage of charging documents and plea agreements in which it has included mandatory minimum charges.

The memo has been in place for about two years now. I don’t recall seeing any data from the Department on the implementation of the new policy. Have you? Did the Department ever develop and implement a software program that enables real-time, trackable reporting by districts and litigating divisions of all charges brought by the Department that include mandatory minimum sentences? Did it ever ask each United States Attorney’s Office and litigating division to report semi-annually to the Executive Office for United States Attorneys the number and percentage of charging documents and plea agreements in which it has included mandatory minimum charges?

Prez Biden issues full pardon to his son Hunter

Upon seeing this news as reported by the New York Times, under the headline "Biden Issues a ‘Full and Unconditional Pardon’ of His Son Hunter Biden," I am tempted to joke that Prez Biden decided to use the long holiday weekend to pardon one last turkey.  Here are the basics:

President Biden fully and unconditionally pardoned his son Hunter on Sunday night, using the power of his office to wave aside years of legal troubles, including a federal conviction for illegally buying a gun, and Republican attacks that hounded the Biden family throughout the last four years.

In a statement issued by the White House, Mr. Biden said he had decided to issue the executive grant of clemency for his son “for those offenses against the United States which he has committed or may have committed or taken part in during the period from Jan. 1, 2014, through Dec. 1, 2024.”

He said he did so because the charges against his son were politically motivated and designed to hurt the president politically. “The charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election,” Mr. Biden said in the statement. “No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son — and that is wrong.”...

Many of the president’s allies and critics had expected him to use the unique authority vested only in his office, even though the president’s spokeswoman had denied for months that Mr. Biden had any intention of doing so. NBC News first reported Sunday evening that Mr. Biden had in fact decided to pardon his son.

The reversal by Mr. Biden came just 50 days before he is set to leave the White House and transfer power to President-elect Donald J. Trump, who spent years attacking Hunter Biden over his legal and personal issues as a part of series of broadsides against Mr. Biden’s family....

It is not the first time a president has used his executive power to commute the sentence of a family member. On his last day in office, President Bill Clinton pardoned his half-brother Roger Clinton for old cocaine charges. A month before leaving office, Mr. Trump pardoned his son-in-law Jared Kushner’s father, Charles Kushner, for tax evasion and other crimes.

Both Roger Clinton and Charles Kushner had long since completed their prison terms, and the pardons were about forgiveness or vindication rather than avoiding time behind bars. Over the weekend, Mr. Trump said that he would nominate Charles Kushner to be the U.S. ambassador to France.

The full statement from Prez Biden is available at this link, and it concludes this way: 

For my entire career I have followed a simple principle: just tell the American people the truth. They’ll be fair-minded. Here’s the truth: I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice -- and once I made this decision this weekend, there was no sense in delaying it further. I hope Americans will understand why a father and a President would come to this decision. 

I fully understand why a father would want to exempt a troubled son from the strictures of the criminal law, but I do not respect a President's decision to show grace here only to his child when there are many thousands of others who have sought clemency and arguably merit grace even more than does this father's privileged son.

Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants

In this post the morning after Donald Trump's election, I wondered aloud about how he might seek to make good on his campaign promises to pardon persons federally prosecuted for their behaviors at the Capital on January 6, 2021.  In that post, I noted that Trump's campaign team seemed eager to stress that Jan 6 clemencies would be decided "on a case-by-case basis."  But that statement raises all sorts of questions about what kind of clemency process Trump and his team might adopt to review the huge universe of 1,500+ Jan. 6 defendants likely to seek clemency.

A new lengthy Politico article notes that adds further intrigue to this developing story under the headline "Trump promised Jan. 6 pardons. His post-election silence is making loyalists nervous."  I recommend the piece in the full, and here are excerpts (with links from the original):

Donald Trump campaigned on a pledge to pardon a vast swath of supporters who stormed the Capitol on Jan. 6, 2021. But his silence on the matter since winning the election has begun unsettling some fervent allies awaiting even the slightest signal from Trump about how he intends to turn his campaign rhetoric into reality.

Federal judges overseeing Jan. 6 cases have been left to guess at Trump’s plans. As a result, they have allowed nearly all cases to proceed, saying Trump’s clemency plans are merely “speculative.” Meanwhile, federal prosecutors have brought a handful of new Jan. 6 felony cases since Election Day, and they’ve argued repeatedly against efforts by defendants to delay their cases to await Trump’s inauguration.

The Justice Department has charged more than 1,500 people for their roles in the riot. Throughout the 2024 campaign, Trump repeatedly said he would pardon many of them. But he left the specifics unclear, and never said whether he might leave in place some prosecutions, particularly against people who assaulted police.

Now that he’s president-elect, his failure to say more has begun nagging at some of his die-hard supporters, who have engaged in a public guessing game on X about Trump’s intentions....  Adding to the anxiety expressed by some Jan. 6 defendants is a statement from Trump’s transition team that hinted at a far more limited approach than the sweeping pardons that many in Trump’s base have demanded.

“President Trump will make pardon decisions on a case-by-case basis,” incoming White House press secretary Karoline Leavitt said in the statement.  The meaning of “case-by-case” has morphed into a raging debate among Jan. 6 defendants and their allies....

[T]wo Trump allies in Congress — Reps. Marjorie Taylor Greene (R-Ga.) and Andy Biggs (R-Ariz.) — issued new calls this week for Trump to issue blanket pardons.  [Julie] Kelly, who has spoken with Trump and congressional Republicans about concerns with Jan. 6 prosecutions, has similarly called for a blanket pardon to address what she calls a “blanket denial of the due process rights of Jan. 6 protesters.”

Kelly suggested that Trump’s public silence belies an enormous amount of advocacy behind the scenes, but she said there are also “political sensitivities” about the notion of pardoning those with assault charges — even though she believes many such pardons would be justified....

[Pam] Bondi, Trump’s new pick to lead the Justice Department, has said nothing publicly about Jan. 6, the perpetrators of the Capitol attack or whether she agrees with Trump’s view of the riot.  [Suzanne] Monk, who is leading an effort called the J6 Pardon Project, has told allies she is working to open lines of communication with Bondi.  In the meantime, Jan. 6 defendants and allies have continued hoping and speculating.

For any and everyone interested in these issues and broader clemency matters, let me further recommend my recent Sentencing Matters Substack post as well as this December 10 event I will be moderating on federal clemency topics.

A few recent related posts:

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

"Why Mass IncarcerationIs Uniquely American"

The title of this post is the title of this "ahead of print" article forthcoming in the journal Crime and Justice authored by Michael Tonry.  Here is its abstract:

Mass incarceration, among Western countries a uniquely American phenomenon, resulted from a transformation of American criminal justice systems.  Indeterminate sentencing systems in which legislatures established maximumsentences, prosecutors processed cases, judges decided who went to prison, and parole boards decided how long people stayed there were replaced by determinate systems in which legislatures prescribed minimum sentences, prosecutors made the key charging and sentencing decisions, judges processed cases and sentenced minor crimes, and parole boards lost much of their authority.  Parole boards and judges become largely irrelevant wheneverprosecutors file charges subject to mandatory sentence, three-strikes, truth-in-sentencing, and life without parole laws.  The explanation for the changes andmass incarceration is that developments beginning in the 1960s — White re-sentment of the civil rights movement, rising crime rates, and politicization ofthe criminal law — interacted with long-term characteristics of American historyand culture.  Four are fundamental: chronic, centuries-old racial conflict and threeinheritances from America’s frontier history (election of local prosecutors, moraljudgmentalism associated with fundamentalist Protestantism, and widespread fatalism about and indifference to human suffering).

Rounding up lots and lots of (holiday weekend?) reading on crime and punishment and more

I am thankful for so very much this holiday season, including for all those who flag interesting pieces for the blog (and for the fact that I sometimes have the time to read -- or at least skim -- lots of writings about crime and punishment and more).  And so, heading into a holiday weekend (when I hope to get some more reading done), here is a long list of pieces from various sources catching my attention:

From The Appeal, "Thousands of People in Prison Have ADHD. Why Aren’t They Receiving Treatment?"

From the Arizona Daily Star, "Arizona to resume executions after two-year pause"

From Astral Codex Ten, "Prison And Crime: Much More Than You Wanted To Know"

From Bolts, "How California’s Embrace of a Tough-on-Crime Measure May Undo a Decade of Reform"

From the Brennan Center, "What Trump’s Victory Means for the Private Prison Industry"

From The Causal Falacy, "Seven Principles for Dealing with Disorder"

From City Journal, "Build More Prisons: The case for incarceration"

From the DP3 Substack, "DP3 Study: After 1,600 Executions, the Public and Police are Safer in States with No Death Penalty"

From Forbes, "Bureau Of Prisons Director Speaks Out After Latest OIG Report"

From The Hill, "Biden’s easy case for clemency: prisoners in home confinement" 

From Jeff-alytics, "Why the FBI's 2023 Estimates Were Likely Better Than Recent Years"

From Law360, "Rikers Faces Federal Takeover As NYC Held In Contempt"

From the Marshall Project, "Is The Age of Progressive Prosecutors Over?"

From Ms. Magazine, "‘Take Beauty From Ashes’: Advocating for Felony Murder Law Reform" 

From the New York Times, "When Leniency Is the Goal, a Justice System Breaks Easily"

From Nieman Lab, "Are Americans’ perceptions of the economy and crime broken?"

From the Toledo Blade, "State lawmakers struggle with Ohio's death penalty regulations"

From the Washington Examiner, "Which Jan. 6 defendants could see pardons?"

From Willamette Week, "Oregon’s Laws For When Aging Inmates Can Leave Prison Are Among the Nation’s Most Vague"

UPDATE: I just saw a couple of sentencing-related newer posts at the newly-revived CrimProf Blog:

"Presidential Pardons: Biden and Trump vs. Their Predecessors"

"Kolber on Punishment for the Greater Good"

New DPIC resource: "In Era of Secrecy, States Increasingly Restrict Media Access to Executions"

A helpful reder made sure I did not mean that the Death Penalty Information Center recently posted on its website this new resource titled "In Era of Secrecy, States Increasingly Restrict Media Access to Executions." Here is how the lengthy discussion gets started:  

On December 18, Joseph Corcoran is scheduled to be the first person executed by Indiana officials in 15 years.  For the first time, the state will use a single drug, pentobarbital, which comes from an unknown source and has been known to cause prisoners “excruciating” pain during executions.  But no media witnesses will be present to relay what happens to the public. Indiana is an outlier in its policy decision to completely exclude the press from witnessing executions in the state.  But a survey by the Death Penalty Information Center finds that many states now significantly restrict whether and how members of the press may observe and document the execution process.

Unobstructed media access to executions is critical because the media observes what the public cannot.  States generally prohibit citizens from attending executions, so the media becomes the public’s watchdog, providing important information about how the government is following the law and using taxpayer funds.  “We’re the ones that are there as the eyes and ears of the public, and we’re there to ensure that the state does it correctly,” said Rhonda Cook, a reporter for the Atlanta Journal-Constitution who has witnessed 28 executions.  Without journalists seeing and hearing every step of the process, the public can only rely on official state accounts, which often refuse to acknowledge problems regardless of the evidence.

Fifth Circuit panel reverses notable Second Amednment dismissal of federal felon-in-possession prosecution

I noted in prior posts (assembled below) the work of US District Judge Carlton Reeves in a case after the Supreme Court's landmark Bruen ruling in which a defendant challenged application of the federal criminal statute prohibiting felons from possessing firearm.  Judge Reeves intially asked the parties whether he "should appoint a historian to serve as a consulting expert" before deciding, in a 77-page opinion, that the Second Amendment required dismissal of the indictment in US v. Bullock. 

I now see that yesterday, though this three-page per curiam unpublished opinion, the Fifth Circuit reversed citing the Supreme Court's opinion in Rahimi setting limits on Bruen: "In light of recent precedent, the district court erred when it held that § 922(g)(1) violates the Second Amendment as applied to Bullock."  Here is a bit of the fairly brief analysis:

Here, Bullock previously misused a firearm to harm others when he shot one individual, fired into a crowd of others, and in the process killed an innocent passerby. A ban on his ability to possess a firearm “fits neatly” within our Nation’s historical tradition of firearm regulation. See [Rahimi, 144 S. Ct.]  at 1898–902....

Bullock’s violent conduct here is also “relevantly similar” to, and arguably more dangerous than, the “prototypical affray [which] involved fighting in public,” the precursor to the “going armed” laws punishable by arms forfeiture. Rahimi, 144 S. Ct. at 1901. And the justification behind going armed laws, to “mitigate demonstrated threats of physical violence,” supports a tradition of disarming individuals like Bullock pursuant to § 922(g)(1), whose underlying convictions stemmed from the threat and commission of violence with a firearm.  Id.; see United States v. Diaz, 116 F.4th 458, 470 n.5 (5th Cir. 2024).

The Diaz ruling from a couple of months ago cited here (and blogged here) certainly presaged this outcome, and Bullock is a long way from the best advocate for limits on felon disarming.  But Diaz suggests that at least some "modern" felons may not be lawfully disarmed, and it will be interesting to see if and when a Fifth Circuit panel addresses a potentially toughter Second Amendment case. 

Prior recent related posts:

• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 
• US District Court concludes Second Amendment requires dismissal of federal felon-in-possession prosecution
• Fifth Circuit panel rejects Second Amendment challenge to federal felon in possession for defendant with prior car theft offense

Weak names this year at Prez Biden's final turkey pardon ceremony

This new Washington Post piece reporting on today's turkey pardon ceremony at the White House includes a little political gravy, along with an explanation for the names of the birds. Here is how the piece starts:

“They tell me there’s 2,500 people here today, looking for a pardon!” President Joe Biden stared through his aviators at the crowd on the White House’s South Lawn on Monday morning.  Everyone laughed. It was a joke, right? The rows of chairs closest to the president were stuffed with Biden loyalists: Cabinet members, political appointees, staff, friends — maybe the sort of people whom President-elect Donald Trump might seek retribution against?

In the end, only a pair of turkeys, Peach and Blossom, walked free. They are the last turkeys who will be pardoned by the 46th president, and they will “join the free birds of the United States of America,” Biden said. Peach, standing on a platform to the president’s right, released an ecstatic gobble. “Peach is making a last-minute plea here,” Biden added.

The birds were raised by National Turkey Federation Chairman John Zimmerman on a farm in Northfield, Minnesota. Zimmerman and his 9-year-old son, Grant, were on hand, as was Minnesota Gov. Tim Walz, less than three weeks removed from his star turn as Vice President Kamala Harris’s running mate.  This would be the closest Walz gets to the White House, at least for now.

The turkeys were named for the state flower of Delaware. “By the way,” Biden told the crowd, “Delaware has a long history of growing peaches,” and peach pie is the official state dessert.  One imagines this is the last we’ll hear about Delaware for a while.  Biden also said that the peach blossom flower “symbolizes resilience, which is, quite frankly, fitting for today.” The president did not explain what he meant by this.

The names given to the pardoned turkeys are never especially clever or interesting, but I was hoping for a bit more fun this year.  I suppose Hunter and Donald would have been too edgy, and Martha and George a bit too opaque in its cheekiness except for those on a first-name basis with famous federal defendants. 

Knowing this ceremony was sure to take place this week, I drafted and published a new Substack entry at the Sentencing Matters Substack to fill out some of my yearly griping about turkeys getting more clemency attention than people.  This new entry, "Imagining better clemency traditions than turkey pardons and lame-duck frenzies," gets started this way:

Late November 2024 augurs some traditions in the world of executive power that I do not view as a cause for holiday celebration.  Every year, as Thanksgiving approaches, the President and some Governors conduct ceremonies to “pardon” a few turkeys (who are often given not-so-clever names).  This year, with President Joe Biden and some Governors now in their final weeks in power and no longer accountable to the voting public, the 2024 holiday season also brings the spectacle of efforts to encourage out-going chief executives to use their clemency pens robustly to benefit a wide array of justice-involved individuals.  That spectacle traditionally presages a frenzy of lame-duck clemency grants that are more predictable based on calendar dates than based on the merits of substantive pleas for justice or mercy.

Be sure to head over to the substack if you want to review my efforts to "envision a few potential new traditions in the clemency arena that would justify celebration."  I also close with some clemency thanks, including: "I am also thankful that, even in divisive political times, we typically hear only robust debates over how the clemency power should be exercised, not over whether the power should exist at all."  

In the spirit of thankfulness, it dawns on me that I have been remiss in highlighting a lot of the recent new content from the Sentencing Matters Substack thanks to my co-authors.  One co-author in particular has done a particularly impressive job making sure we post new content every week, and here are some of his more recent efforts:

• A Better Federal Drug Guideline
• Facing a New Political Reality: A Five-Part Post-Election Agenda for the U.S. Sentencing Commission
• The Sentencing Matters Substack Interview: Former Presidential Candidate, Governor, DEA Administrator, Congressman, and U.S. Attorney Asa Hutchinson
• The Sentencing Matters Substack Book Review: Sentencing Without Guidelines, by Rhys Hester
• § 5H1.1 (James’ Version)

Espcially because I have the great joy of hosting family this week, which means blogging may be a bit lighter than usual, be sure to head over to the Sentencing Matters Substack if you want to feast on extra helpings of sentencing discussions.

Also, for those of you hungry for more clemency talk, remember to register for the online event, "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power," being hosted on December 10 by the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  More details and a list of panelist can be found on this event page. 

Intriguing statement from two Justices after cert denial concerning Takings Clause and police destruction of private property

The Supreme Court this morning issued this order list that concludes with an interesting Statement by Justice Sotomayor joined by Justice Gorsuch respecting the denial of certiorari in a case from the Fifth Circuit, Baker v. City of McKinney.  Though not a sentencing case, it raises a common question relating to whether and how civil provisions in the Constitution might have application to crminal matters.  The facts of the case involve local police causing signifant property damage (over $50k) to Ms. Bakers while reasonably seeking to apprehend a violent and dangerous fugitive holed up therein. Here are portions of how Justice Sotomayor discusses the legal question raised:

The Takings Clause of the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” This case raises an important question that has divided the courts of appeals: whether the Takings Clause requires compensation when the government damages private property pursuant to its police power....

All agree that the McKinney police acted properly that day and that their actions were necessary to prevent harm to themselves and the public. [But] actions of the police also caused extensive damage to Baker’s home and personal belongings....

At the summary judgment stage, the District Court held that the City’s destruction of Baker’s property was a compensable taking under the Fifth Amendment. Baker v. McKinney, 601 F. Supp. 3d 124, 144 (E. D. Tex. 2022). Following trial, a jury awarded Baker nearly $60,000 in damages.

On appeal, the Fifth Circuit reversed.  The court declined to adopt the city’s broad assertion that the Takings Clause never requires compensation when a government agent destroys property pursuant to its police power. Such a broad categorical rule, the Fifth Circuit reasoned, was at odds with its own precedent and this Court’s Takings Clause jurisprudence. Baker, 84 F. 4th, at 383–384. Instead, the Fifth Circuit adopted a narrower rule that it understood to be compelled by history and precedent: The Takings Clause does not require compensation for damaged property when it was “objectively necessary” for officers to damage the property in an active emergency to prevent imminent harm to persons....

The Court’s denial of certiorari expresses no view on the merits of the decision below. I write separately to emphasize that petitioner raises a serious question: whether the Takings Clause permits the government to destroy private property without paying just compensation, as long as the government had no choice but to do so. Had McKinney razed Baker’s home to build a public park, Baker undoubtedly would be entitled to compensation. Here, the McKinney police destroyed Baker’s home for a different public benefit: to protect local residents and themselves from an armed and dangerous individual. Under the Fifth Circuit’s decision, Baker alone must bear the cost of that public benefit.

The full story leading to the property damage, as well as the limited caselaw on these issues, are well covered in Justice Sotomayor's statement. Anyone intrigued should make sure to read the full six-page statement.

"Sentencing Insurrection"

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

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

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

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

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

Expanded academic and caselaw resorces from the Plea Bargaining Institute

In this post a couple of years ago, I noted the launch of the Plea Bargaining Institute (PBI) which aspired to "provide a global intellectual home for academics, policymakers, advocacy organizations and practitioners working in the plea bargaining space."   One can check out the News tab on the PBI website to see some of the Institute's  activities, and this latest item from earlier this week particularly caught my attention under the heading "PBI Expands Online Summaries Database to Incorporate Academic Articles."  Here is an excerpt:

The Plea Bargaining Institute has expanded the online summaries database to include over 130 academic articles.  The articles represent important works from 1979 through 2023 in the fields of law, psychology, economics and other disciplines that assist in better understanding the history, growth, and operation of plea bargaining.

“The Institute’s mission includes creating better access to research for practitioners, policy makers, and academics in diverse fields of study,” said PBI Founding Director Lucian Dervan.  “This new collection of online academic summaries will assist each of these groups in accessing and examining important research that will better inform their litigation, policy initiatives, and cross-disciplinary research.”

Each of the academic entries in the database contains the title, authors, source, and publication year of the article. This is followed by a list of terms relevant to the research piece, and these terms can be used to identify other research in the database relevant to the same subject matter.  Finally, each summary contains a detailed description of the research’s main findings and conclusions and a key quote from the piece.

These new academic article entries supplement the fifty-nine Supreme Court summaries representing significant Supreme Court decisions regarding plea bargaining since 1970 already included in the online database.  A report regarding those 59 Supreme Court decisions was released earlier this year by the Institute.  A report regarding the academic articles will be released in the near future.

Alabama completes its third execution using nitrogen gas, its sixth of 2024

As detailed in this lengthy local story, "Alabama executed Carey Dale Grayson for the 1994 brutal slaying and mutilation of a hitchhiker in Jefferson County on Thursday evening, making it the state’s sixth execution in 2024."  Here are some details:

Earlier Thursday, the U.S. Supreme Court cleared the way for 50-year-old Grayson to be killed using the relatively new method of pumping nitrogen gas into a mask fitted over an inmate’s face and suffocating him to death.... Grayson used his last words to curse the warden in charge of the prison.

Grayson was convicted with three other men -- all teenagers at the time -- for the murder and mutilation of 37-year-old Vicki Lynn Deblieux. The woman had been hitchhiking when she was picked up by the group of teenagers. Her body was found days later at the base of a cliff.

Her daughter, Jodi Haley, was present at Holman prison on Thursday night.  She described her mother at a press conference following the execution. “She was unique. She was spontaneous, she was wild. She was funny and she was gorgeous to boot,” Haley said.  She said she didn’t know what it was like to have a mother while going through life events like graduation, marriage, and children -- opportunities that were stolen from her.

But Haley also focused on Grayson and her stance against the death penalty.  Grayson was abused “in every possible way,” including having cigarettes put out on his skin, facing physical and sexual abuse and being thrown out on the street as an adolescent, Haley said. “I have to wonder how all of this slips through the cracks of the justice system. Because society failed this man as a child and my family suffered because of it,” she said.

Haley wondered what kind of positive impact Grayson could have had on lives. The ‘eye for an eye’ justification for the death penalty “it’s not right,” Haley said. “Murdering inmates under the guise of justice needs to stop,” Haley said. “State sanctioned homicide needs never be listed as cause of death,” she said. “I don’t know who we think we are. To be in such a modern time, we regress when we implement this punishment. I hope and pray my mother’s death will invoke these changes and give her senseless death some purpose,” Haley said....

The prison warden read the death warrant and pointed the microphone to Grayson’s face to utter his last words, but then immediately backed off after Grayson said, “For you, you need to f*** off.” Grayson, at one point, also pointed up the middle finger on at least his left hand, which was visible to media witnesses. “He’s cussed out most of our employees tonight so we were not going to give him the opportunity to spew that profanity,” said Commissioner John Hamm on why the warden took away the microphone....

Grayson continued leaning his head forward following his remarks and said something in a loud manner towards what appeared the middle execution viewing room, where state officials usually sit, as a guard hung the microphone up and the warden went into a separate room to begin the execution.

The gas apparently started flowing at 6:12 p.m., followed by Grayson gasping and raising, shaking his head left to right. About 6:14 p.m., both of his legs on the gurney raised up. His movements slowed, but he had what appeared to be periodic gasps over the following six minutes when he stopped moving.  At a press conference following the execution, Hamm said the first movements Grayson was doing were “all show” and the later movements were consistent with nitrogen gas executions.

Alabama Gov. Kay Ivey issued a press release following the execution, listing his time of death as 6:33 p.m. She said in a press release, “Some thirty years ago, Vicki DeBlieux’s journey to her mother’s house and ultimately, her life, were horrifically cut short because of Carey Grayson and three other men. She sensed something was wrong, attempted to escape, but instead, was brutally tortured and murdered. Even after her death, Mr. Grayson’s crimes against Ms. DeBlieux were heinous, unimaginable, without an ounce of regard for human life and just unexplainably mean. An execution by nitrogen hypoxia bares no comparison to the death and dismemberment Ms. DeBlieux experienced. I pray for her loved ones that they may continue finding closure and healing.”...

Deblieux was kidnapped while hitchhiking from Chattanooga to see her mother in Louisiana. She accepted a ride from Grayson, Kenny Loggins, Trace Duncan, and Louis Mangione on the Trussville exit of Interstate 59 on Feb. 22, 1994. Deblieux’s nude and dismembered body was found four days later at the bottom of a cliff on Bald Rock Mountain in St. Clair County.

Court records show after picking up the woman, the teens took her to an abandoned area near Medical Center East in Birmingham, where they all drank. At some point, the teens attacked and killed Deblieux, drove her body to St. Clair County, then tossed her body and luggage off the cliff.

Given what now seems to be Alabama's repeated success with using nitrogen gas as an execution method, it will be interesting to see if other jurisdictions may make more robust efforts to adopt this method (or whether death row defendants might argue more robstly that this method must be provided as a more humane alternative to lethal injection).

Next up: after Matt Gaetz pulls out, Prez-Elect Trump names former Florida AG Pam Bondi to be next US AG

As reported in this AP piece, "President-elect Donald Trump on Thursday named Pam Bondi, the former attorney general of Florida, to be U.S. attorney general just hours after his other choice, Matt Gaetz, withdrew his name from consideration." Here is more:

Bondi is a longtime Trump ally and was one of his lawyers during his first impeachment trial ... [and] was among a group of Republicans who showed up to support Trump at his hush money criminal trial in New York.... She’s been a chair at the America First Policy Institute, a think tank set up by former Trump administration staffers.

“For too long, the partisan Department of Justice has been weaponized against me and other Republicans - Not anymore,” Trump said in a social media post. “Pam will refocus the DOJ to its intended purpose of fighting Crime, and Making America Safe Again.”

Trump’s son Donald Trump Jr. told Fox Business on Sunday that the transition team had backups in mind for his controversial nominees should they fail to get confirmed. The swift selection of Bondi came about six hours after Gaetz withdrew....

Last week, Trump named personal lawyers Todd Blanche, Emil Bove and D. John Sauer to senior roles in the department. Another possible attorney general contender, Matt Whitaker, was announced Wednesday as the U.S. ambassador to NATO.

Bondi, too, is a longtime loyalist. She has been a vocal critic of the criminal cases against Trump as well as Jack Smith, the special counsel who charged Trump in two federal cases. In one radio appearance, she blasted Smith and other prosecutors who have charged Trump as “horrible” people she said were trying to make names for themselves by “going after Donald Trump and weaponizing our legal system.”

I would guess that Bondi should have a much smoother path to Senate confirmation than was expected for Gaetz, and it will be interesting to hear at confirmation hearings about her plans for leading the Justice Department  I am not familiar at all with her criminal justice record while Florida's AG, but this bio page describes her work this way:

While Attorney General she worked for tough legislation to close pill mills, ban synthetic drugs, combat human trafficking, curtail Medicare fraud, and address harmful mortgage servicing and foreclosure practices.  She worked with the White House on the First Step Act designed to help formerly incarcerated inmates reenter society safely and giving them the ability to succeed. 

I have also seen in press pieces that she was a vocal supporter of the First Step Act, and I am hopeful she will advance efforts to give that landmark reform its full due in application (assuming she is confirmed as our nation's next Attorney General).

UPDATE:  I just found this 2020 Washington Post piece, headlined "White House assembles team of advisers to guide clemency process as Trump considers more pardons," which discusses Bondi's work assisting Trump in the clemency space back in 2020:

Pam Bondi, the former Florida attorney general who served on Trump’s impeachment defense team, is also playing a significant role, vetting applications for potential pardon recipients. Kushner has personally reviewed applications with White House lawyers before presenting them to Trump for final approval, according to two senior administration officials.

I wonder if Prez-Elect Trump might look for help from an AG Bondi if and when he plans to make good on his clemency promises to Jan 6 defendants.

"On the Importance of Listening to Crime Victims . . . Merciful and Otherwise"

The title of this post is the title of this paper authored by Paul Cassell just posted to SSRN. Here is its abstract:

What role should mercy play in the criminal justice system?  While several of the other symposium’s articles here in the Texas Law Review argue for expanding mercy’s role, I write to raise a cautionary note.  Expanding mercy could potentially conflict with another important feature of contemporary criminal justice: the expanding role of crime victims.  Because considerations of mercy focus exclusively on the offender, greater attention to mercy necessarily means less attention to victims.  This change in focus would be at odds with a broadly advancing crime victims’ movement in this country and, indeed, in many countries around the world.  This cautionary point does not assume that all crime victims want a more punitive criminal justice system.  To the contrary, many crime victims may argue for mercy.  But allowing victims’ voices to carry weight only when they advance merciful arguments is inconsistent with the underlying rationale for victim involvement: that victims should have agency to advance their own claims in criminal justice processes.

Could and would the Trump Administration's Justice Department seek the death penalty for Laken Riley's murderer?

Yesterday brought not only a quick conviction, but also a quick sentencing to LWOP, in the Georgia state bench trial of the man who brutally murdered Laken Riley.  This AP story provides some basics:

The Venezuelan man convicted of killing Georgia nursing student Laken Riley has been sentenced to life in prison without the possibility of parole in a case that became a flashpoint in the national debate over immigration.  Jose Ibarra was charged with murder and other crimes in Riley’s February death, and Wednesday’s guilty verdict was reached by Athens-Clarke County Superior Court Judge H. Patrick Haggard. Ibarra, 26, had waived his right to a jury trial, meaning Haggard alone heard and decided the case.

Haggard found Ibarra guilty of all 10 counts against him: one count of malice murder; three counts of felony murder; and one count each of kidnapping with bodily injury, aggravated assault with intent to rape, aggravated battery, obstructing an emergency call, evidence tampering and being a peeping Tom.

Prosecutors said Ibarra encountered Riley while she was running on the University of Georgia campus on Feb. 22 and killed her during a struggle.  Riley, 22, was a student at Augusta University College of Nursing, which also has a campus in Athens, about 70 miles (115 kilometers) east of Atlanta.

Riley’s family and friends tearfully remembered her and asked Haggard to sentence Ibarra to the maximum penalty. Her mother, Allyson Phillips, said there is “no end to the pain, suffering and loss we have experienced and will continue to endure.”  “This sick, twisted and evil coward showed no regard for Laken or human life. We are asking that the same be done for him,” she told the judge.

Riley’s younger sister, Lauren Phillips, a freshman at the University of Georgia, talked about the pain of living without her “favorite person” and “biggest role model” and the effect her sister’s death has had on her. “I cannot walk around my own college campus because I’m terrified of people like Jose Ibarra,” she said....

Defense attorney John Donnelly asked Haggard to give Ibarra two consecutive life sentences but to allow him the eventual possibility of parole.  Prosecutor Sheila Ross asked the judge for the maximum sentence, saying Riley’s family should never have to worry about Ibarra being released. “You can’t bring her back and it’s horrible. What you can do is give comfort with your sentence,” Ross said.

Haggard ultimately gave Ibarra the maximum sentence he could impose, including life in prison without the possibility of parole on the malice murder count.

Riley’s killing added fuel to the national debate over immigration when federal authorities said Ibarra illegally entered the U.S. in 2022 and was allowed to stay in the country while he pursued his immigration case. President-elect Donald Trump and other Republicans blamed Riley’s death on the policies of Democratic President Joe Biden....

The trial began Friday, and prosecutors called more than a dozen law enforcement officers, Riley’s roommates and a woman who lived in the same apartment as Ibarra. Defense attorneys called a police officer, a jogger and one of Ibarra’s neighbors on Tuesday and rested their case Wednesday morning.

This Newsweek article, headlined "Why Laken Riley's Killer Isn't Facing Death Penalty in Georgia," explains that the "Western Judicial Circuit District Attorney's Office announced before Ibarra's trial that it would not seek the death penalty. District Attorney Deborah Gonzalez, a progressive Democrat, faced criticism from Republicans over the decision."  I have seen this criticism being expressed in a number of commentary pieces today:

Via The Federalist, "Not Giving Laken Riley’s Killer The Death Penalty Is A Miscarriage Of Justice"

Via Fox News, "Laken Riley's murderer deserves the death penalty"

Via the National Legal and Policy Center, "Failure to Seek Death Penalty in Laken Riley Case is ‘Miscarriage of Justice’"

These reactions and claims that justice has not been served by a sentence less than death for this murderer leads me to the question that is the title of this post.  I suspect that clever lawyers at the Department of Justice could find a hook for a federal prosecution of this horrific murder, and the dual sovereignty doctrine clearly allows the federal government to pursue its distinct interests after Georgia's prosecution.  So I believe the US Justice Department could at least try to pursue a capital prosecution in this case, and thus the real question is whether it might decide it should.  

The Justice Department's so-called "Petite Policy" generally suggests limits on federal prosecutions after state prosecutions based on whether there is a "substantial federal interest" that was not vindicated by a state prosecution.  Though I am fairly certain the current Biden Administration will not see an interest in a follow-up federal prosecution just to seek a capital verdict, I suspect whatever new leaders Prez-Elect Donald Trump gets into DOJ could have a quite different view.

Infamous mother, serving life with parole for killing her two son 30 years ago, denied parole in South Carolina

This CBS News piece reports on a high-profile murderer being denied her bid for parole today after having served 30 years in prison.  Here are the basics:

A parole board decided unanimously Wednesday that Susan Smith should remain in prison, despite her plea that God has forgiven her for infamously killing her two young sons 30 years ago by rolling her car into a South Carolina lake while they were strapped in their car seats.

It was the first parole hearing for Smith, 53, who is serving a life sentence after a jury convicted her of murder but decided to spare her the death penalty. She is eligible for a parole hearing every two years now that she has spent 30 years behind bars.

Smith made her case by video link from prison. She started by saying she was "very sorry," then broke down in tears and bowed her head. "I know what I did was horrible," Smith said, pausing and then continuing with a wavering voice. "And I would give anything if I could go back and change it."  In her final statements, Smith said God has forgiven her. "I ask that you show that same kind of mercy, as well," she said.

Smith made international headlines in 1994 when she insisted for nine days that a carjacker drove away with her sons.  Prosecutors have long argued that Smith killed 3-year-old Michael and 14-month-old Alex because she believed they were the reason the wealthy son of the owner of the business where she worked broke off their affair.  Her attorneys blame her mental health.

A group of about 15 people urged against parole.  They included her ex-husband and the father of the boys, David Smith; his family members; prosecutors; and law enforcement officials.  Along with a few others, David Smith had a photo of Michael and Alex pinned to his suit jacket.  He struggled to get out words at first, pausing several times to compose himself.  He said he has never seen Susan Smith express remorse toward him. "She changed my life for the rest of my life that night," he said. "I'm asking that you please, deny her parole today, and hopefully in the future, but specifically today," he said, adding that he plans to attend each parole hearing to make sure Michael and Alex aren't forgotten.

A decision to grant parole requires a two-thirds vote of board members present, according to the state. Parole in South Carolina is granted only about 8% of the time and is less likely with an inmate's first appearance before the board, in notorious cases, or when prosecutors and the families of victims are opposed.  

Council on Criminal Justice releases new report "Between the Aisles A Closer Look at Shoplifting Trends"

I received an email this morning flagging that "the Council on Criminal Justice (CCJ) today released a new report on shoplifting that examines trends through fall of this year and highlights a conflict in two sources of FBI data on the crime.  A separate analysis explores in detail how shoplifting has shifted over time in two cities, Los Angeles and Chicago."  Here is what the report lists as "Key Takeaways" at its start:

• Data collected through the fall of 2024 for Chicago, Los Angeles, and New York suggest that shoplifting levels remain higher than pre-2020 rates. Chicago, in particular, experienced notably elevated rates of reported shoplifting through the first 10 months of this year. In 2023, rates were 10% lower in Chicago, 87% higher in Los Angeles, and 55% higher in New York than in 2019.

• Over the past several years, shoplifting rates were higher in November and December than they were during earlier months of the year, coinciding with increased in-person retail activity. Because shoplifting rates in a 23-city sample for the first half of 2024 are higher than in 2023, it is likely that the reported shoplifting rate for the full year will rise from 2023 to 2024.

• Two national sources of law enforcement data on reported shoplifting—both available from the FBI—show different trends. Statistics from the Summary Reporting System (SRS) suggest that reported shoplifting in 2023 was the same level as in 2019. However, rates from the National Incident-Based Reporting System (NIBRS), show that shoplifting was 93% higher in 2023 than it was in 2019.

• It is unclear why there is a sizable difference between these two sources. One possibility is that law enforcement agencies recently added to the group providing data through NIBRS reported disproportionally higher levels of shoplifting, even after adjusting for an increase in population coverage. Clear guidance from the FBI on the limitations of the data and the implications of using certain sources of FBI crime data is needed.

Washington Post details that so many death sentence are functionally LWOP sentences

The Washington Post has this lengthy new article discussing the state of capital punishment administration and death rows in the US. The piece's full headline previews its themes: "Between Life and Death: More than 2,100 people sit on American death rows. Will most of them die there waiting to be executed?".  Here are excerpts:

Across the nation, more than half of the approximately 2,100 prisoners with death sentences are incarcerated in jurisdictions where executions are on hold, according to a Washington Post analysis. Many appear likely to die without seeing the inside of an execution chamber....

Many inmates on death row nationwide and scores of others affected by their cases — including victims’ loved ones — have been left in a state of limbo that can stretch on indefinitely, raising fundamental questions about the American justice system....

Supporters of capital punishment say that leaving death sentences unfulfilled lets horrific crimes go unpunished and misleads victims’ loved ones. Opponents of the practice also decry leaving prisoners on death row endlessly, saying that perpetuates a system they call unjust and cruel.

“In a courtroom, they have said, ‘This is the sentence,’” said Duffie Stone, an elected prosecutor in South Carolina who has successfully sought the death penalty in court. “For that sentence not to mean what it says calls our criminal justice system into question.”...

Nearly 80 percent of prisoners sentenced to death — 1,681 people — are held in eight states, five of which are not currently carrying out executions.

Governors have imposed moratoriums in California (which has 612 death row inmates) and Pennsylvania (95). In Arizona (111), executions were paused after the governor ordered a review of the state’s procedures for carrying them out. And the governor in Ohio (114) has said executions there were paused because of a lack of execution drugs. In North Carolina (136), a court order blocks executions.

Florida, Texas and Alabama, which regularly carry out executions, hold a total of 613 people on death row.

Yet another round of disconcerting stories regarding federal prison realities

With thanks to some readers for flagging some of these pieces, I have seen in recent days an array of stories regarding an array of ugly realities in the federal prison system.  A round-up:

From The Christian Post, "Federal prisons blocking faith groups from helping offenders overcome criminal past: senators"

From Fox News, "Federal inmates attacking prison guards in nationwide trend as lawmakers propose their solution"

From KTVU Fox 2, "Lawyers 'horrified' at conditions for FCI Dublin transfers at Alabama prison"

From Reason, "The Bureau of Prisons' Casual Cruelty to Families of Those Who Die Behind Bars"

California Gov to hold off on Menedez clemency decision pending resentencing review by new DA

As reported in this Fox News article, California's Gov has made a non-decision concerning the clemency requests from the Menedez brothers: "Gavin Newsom has reached a decision on a pair of clemency requests for Erik and Joseph 'Lyle' Menendez, the two Beverly Hills brothers serving life without parole for the murder of their parents in 1989.  He will hold off until the newly elected Los Angeles District Attorney Nathan Hochman has time to review the case, respecting the will of the voters who sent the far left progressive George Gascon packing on Election Day, he said." Here is more:

"The Governor respects the role of the District Attorney in ensuring justice is served and recognizes that voters have entrusted District Attorney-elect Hochman to carry out this responsibility," Newsom's office said in a statement. "The Governor will defer to the DA-elect’s review and analysis of the Menendez case prior to making any clemency decisions."

Hochman, a former federal prosecutor and assistant U.S. attorney general during the President George W. Bush years, previously told Fox News Digital he would not reach a decision of his own until he becomes "thoroughly familiar" with all aspects of the case....

The Menendez brothers' resentencing hearing, requested by Gascon just days before he lost his re-election bid, is scheduled for Dec. 11. "Once I take office on December 3, I look forward to putting in the hard work to thoroughly review the facts and law of the Menendez case, including reviewing the confidential prison files, the transcripts of the two trials, and the voluminous exhibits as well as speaking with the prosecutors, defense attorneys and victim family members," Hochman said Tuesday....

The brothers have been held on sentences of life without the possibility of parole since 1996, after their second trial in the shotgun murders of their parents, Jose and Mary "Kitty" Menendez, who they ambushed in their living room. The first ended in a mistrial a few years earlier. They said they killed their dad in self-defense, believing he would have killed them after they warned him they would expose him as a child sex abuser. Their mom was sitting next to him, eating ice cream and watching TV when they started shooting from behind....

Hochman could continue where Gascon left off and seek the resentencing, ask the judge to withdraw the prior administration's resentencing request or file additional briefs to give the judge more material to work with as the court considers the matter....

If Hochman's office continues down the resentencing road, Newsom still has the final say. If the brothers' sentences are reduced to something that would make them eligible for parole, the governor has veto power over parole board decisions. He could also issue clemency or a pardon on his own.

A separate habeas corpus petition is also making its way through the court, which would be an additional path to freedom if successful. Their petition is based on newly emerged evidence in support of their allegations of child abuse against their father – a corroborating letter of unconfirmed origin and the word of Roy Rosello, a former Menudo member who said he too had been abused by Jose Menendez as a child.

Prior recent related posts:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so
• LA District Attorney announces that he will seek resentencing for the Menendez brothers
• Continuing coverage and comment on Menendez brothers' possible resentencing 

New Prison Policy Initiative briefing urges outgoing governors and Prez to grant capital clemency

The Prison Policy Initiative is aparently okay with one group of prisoners potentially spending longer in prison, as it has this new briefing urging clemency action to take condemned murderers off death row.  The themes of the briefing is spelled out in the full title: "Talking turkey about the death penalty: outgoing governors and the president must use their clemency power now: President Biden and three governors should use their clemency powers before they leave office to save the lives of people facing the death penalty, our nation’s cruelest punishment."  Here is how the report gets started:

Every November, it has become a light-hearted tradition for the president and some governors to “pardon” turkeys before the Thanksgiving holiday, sparing them from the dinner table. But when the nation’s political leaders take part in an annual turkey pardon, it’s hard not to think about the chronic underuse of clemency powers across the U.S., especially for people on death row.

If turkey pardons are about choosing life over death, using clemency powers to empty remaining death rows is a straightforward way for elected leaders to act on those values and reject a horrific practice. President Biden and the outgoing governors of North Carolina, Indiana, and Missouri in particular can use clemency for those facing a state-sanctioned death before they leave office early next year. More than a dozen other governors can stop executions in their states, too, by exercising their unilateral power to modify or reduce criminal convictions and sentences at any time.

In this briefing, we show that the outgoing president and some governors’ tactless traditions of granting relief to turkeys casts a harsh light on their records of granting relief to people condemned to die. Ultimately, their legacies won’t be shaped by crass Thanksgiving rituals, but by how they tapped their power to intervene in the moral atrocity that is the death penalty.

Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations

In this recent post, I flagged a number of press pieces providing various forms and sources of advice for Prez Biden concerning how he should use his clemency power on his way out the White House door.  While we await to see how the outgoing Prez decides to use his clemency pen, we can also note some of the notable recent press discussions of how the incoming Prez might use his clemency power as soon as he returns to the Oval Office:

From the Cincinnati Enquirer, "Lawyer: Ex-Ohio House Speaker Larry Householder seeks pardon from President-elect Trump"

From Fox News, "Eric Adams dodges question when pressed if he's 'embracing' Trump to get a pardon for criminal charges"

From the Military Times, "Veterans involved in Jan. 6 riot expect Trump to keep pardon promise"

From MSN, "'Tiger King' Joe Exotic begs Donald Trump for pardon and offers to join his cabinet"

From Newsweek, "Will Donald Trump Pardon Diddy? Former Employee Weighs In"

From the New York Times, "Proud Boys Leader Convicted of Sedition for Role in Jan. 6 Attack Asks Trump for Pardon"

From Vulture, "So, Which Celebrities Will Donald Trump Pardon This Time?"

From Wired, "Silk Road Creator Ross Ulbricht Is Waiting for Trump to Keep His Word — and Set Him Free"

There have also been a broad array of article from various states highlighting the number of Jan 6 defendants in that state that may be expecting a pardon from Prez-Elect Trump as soon as he becomes President.  As I flagged in this recent post, it may prove logistically challenging for a new Trump Administration to make good on pardon promises right away unless they opt for a blanket pardon approach.

A few recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Prez Biden getting lots of advice concerning how he should use his clemency powers 
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

"The Miserly Message of Grants Pass"

The title of this post is the title of this new essay just posted to SSRN and authored by Meghan Ryan. Here is its abstract:

The Supreme Court’s recent opinion in Grants Pass v. Johnson condoned states’ attempts to police homeless encampments.  This was a significant blow to unhoused individuals and their allies.  But the Court’s opinion also continued its march away from the longstanding evolving-standards-of-decency approach in Eighth Amendment cases. Grants Pass was something of an odd case in which to grant certiorari, but it served as an opportunity for the Court to send a quiet message that it would continue narrowing the Eighth Amendment’s scope.  As in other recent cases, the Court applied a more historical approach than the one traditionally used in Eighth Amendment cases, focusing on the original meanings of “cruel and unusual” and “punishments.”  Further, the Court surreptitiously narrowed the definition of “cruel” to require governmental intent and raised significant questions about the meaning of “punishments.”  This is yet another case in which the Court has shown its intent to continue whittling away at defendants’ Eighth Amendment protections.

Prez Biden getting lots of advice concerning how he should use his clemency powers

Joe Biden has really been a lame-duck president for nearly four month since he announced in late July that he was not going to run for reelection.  But with the 2024 election now completed, Prez Biden is officially at the true lame-duck stage of his presidency, a period in which it is especially common for modern presidents to make extra use of their clemency pen.  Perhaps unsurpisingly, a lot of folks have a lot of advice for Prez Biden concerning how he should use his clemency power, and he is an abridged review of some coverage and commentary:

From the ACLU, "Biden Must Use Final Months in Office to Commute Federal Death Sentences"

From Paul Rosenzweig at The Atlantic, "Pardon Trump’s Critics Now: President Biden has a moral obligation to do what he can for patriotic Americans who have risked it all."

Harold J. Krent at The Hill, "How Biden can make pardons a stamp on his legacy"

From Chris Geidner at Law Dork, "Joe Biden has a moral, ethical responsibility to clear the federal death row"

From Bruce Ledewitz at the Pittsburgh Post-Gazette, "Mr. President: Pardon Donald Trump"

From Politico, "Biden faces pressure from Hill Democrats to grant clemency for drug crimes"

After prior stay, Texas Supreme Court rules state legislature lacked a lawful basis to impede execution

As reported in this AP piece, the "Texas Supreme Court on Friday ruled that a legislative subpoena cannot stop an execution after Republican and Democratic lawmakers who say Robert Roberson is innocent used the novel maneuver to pause his execution at the last minute." Here is more about the ruling and context:

The ruling clears the way for Roberson’s execution to move forward, weeks after a bipartisan group of state House lawmakers bought him more time by subpoenaing Roberson as he waited to be taken to the nation’s busiest death chamber.  Roberson was sentenced to death in 2003 for killing his 2-year-old daughter, Nikki Curtis.  He would be the first person in the United States to be executed over a conviction tied to “shaken baby syndrome,” a diagnosis that has been questioned by some medical experts.

A new execution date for Roberson has not been set, but it is certain to proceed unless Republican Gov. Greg Abbott grants a 30-day reprieve.  Abbott did not move to do so before Roberson’s original execution date and his office challenged the subpoena tactic used by lawmakers, accusing them of overstepping their power.

The state’s all-Republican high court agreed, ruling that “under these circumstances the committee’s authority to compel testimony does not include the power to override the scheduled legal process leading to an execution,” wrote Republican Justice Evan Young, issuing the opinion of the court.

The ruling addressed a subpoena issued for Roberson by the Texas House Criminal Jurisprudence Committee.  Roberson was scheduled to die by lethal injection on Oct. 17 when lawmakers, in a last-ditch effort, issued a subpoena to have him testify at the Texas Capitol days after his planned execution.  This spurred a legal conundrum between the state’s criminal and civil courts, which ultimately led to the Texas Supreme Court temporarily ruling in Roberson’s favor while it considered the matter.

Roberson has gained bipartisan support from lawmakers and medical experts who say he was convicted on faulty evidence of “shaken baby syndrome,” which refers to a serious brain injury caused when a child’s head is hurt through shaking or some other violent impact, like being slammed against a wall or thrown on the floor.

Rep. Joe Moody, who has led the effort to stop Roberson’s execution, said delaying the execution with the subpoena was “never our specific intention” and added that the court “rightly agreed” that the subpoena and lawsuit were valid. Moody insisted that Roberson could still be called to testify since the court ruling “reinforced our belief that the Committee can indeed obtain Mr. Roberson’s testimony and made clear it expects the executive branch of government to accommodate us in doing so.”

Prosecutors said that Roberson killed his daughter by shaking her violently back and forth.  Roberson’s attorneys have argued that the child’s symptoms did not align with child abuse and that she likely died from complications with severe pneumonia.  His case has garnered support from nearly 90 lawmakers across party lines and civil rights advocates who say Roberson is innocent and that he has not been given a fair trial under the state’s “junk science law.”...

The parole board voted to not recommend clemency for Roberson before his scheduled execution date, and the governor’s office said lawmakers had stepped out of line when they issued the subpoena.

The full 30-page ruling from the Texas Supreme Court is available at this link.  It is my understanding of Texas law that a new execution date cannot be set less than 90 days out from the date of its request, so it would seem Robertson could not be secheduled for execution February 2025.

Prior related post:

• Amid serious claims of innocence, Texas Supreme Court halts execution based on legislative subpoena 

"Expanding Homicide Liability for a Parent’s Omission"

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

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

Gallup reports "lowest levels of death penalty support" since 1972 (but still majority support)

This new Gallup piece, headlined "Drop in Death Penalty Support Led by Younger Generations: Less than half of millennials, Gen Z are in favor of it for convicted murderers," reports on its latest survey data concerning views on capital punishment.  Here are excerpts:

Younger generations of U.S. adults are far less likely than older generations to favor the death penalty for convicted murderers. As a result, overall support for the death penalty in the U.S. has fallen to 53% today, a level not seen since the early 1970s.

Less than half of U.S. adults born after 1980 -- those in the millennial and Generation Z birth cohorts -- favor the death penalty. At the same time, roughly six in 10 adults in older generations are in favor of such laws. Two decades ago, there were no meaningful age differences in views of the death penalty.

These results are based on aggregated data from Gallup’s annual Crime survey, which dates back to the year 2000. This analysis focuses on three time periods during which death penalty support was relatively stable -- 2000 through 2006 (when an average of 66% of U.S. adults were in favor of the death penalty), 2010 through 2016 (61%) and 2020 through 2024 (54%). The last period reflects the lowest levels of death penalty support Gallup has measured since a 50% reading in 1972.

Two decades ago, all generations’ support for the death penalty was within three percentage points of the 66% national average. At that time, the oldest millennials had entered adulthood. Between 2010 and 2016, support among adult millennials had fallen from 63% to 56%, while it dipped only slightly, to 63% or 64%, among the older generations.

In the most recent period, millennials again show diminished support, dropping another nine points to 47% in favor of the death penalty. Members of Generation X, baby boomers and the Silent Generation all show slight declines over the past decade, ranging from two to five points. Now that many in Generation Z (currently aged 12 to 27) have become adults, this subgroup is proving even less supportive of the death penalty than millennials are, at 42%....

As Gallup showed in last year’s death penalty update, the percentage of Republicans in favor of the death penalty has generally held steady over the past 25 years. The change in attitudes by generational group is thus seen more among political independents and, especially, Democrats. To analyze changes in death penalty support among generations in different party groups, the two younger (Gen Z and millennial) and three older (Gen X, baby boom and Silent) birth cohorts are combined to increase the reliability of the subgroup estimates. Even so, there are not sufficiently large sample sizes of Gen Zers and millennials in the 2000-2006 time period, before most had reached adulthood, to produce estimates for party subgroups of those generations.

Decreased death penalty support was first apparent among Democrats in older generations. Between 2000 and 2006, 57% of Democrats in Generation X or above favored the death penalty. Ten years later, support among this group had dropped to 49%, and it is at 38% in the most recent period. Younger Democrats -- those in Gen Z and millennials -- show an even larger drop in the past decade, from 45% to 27%.

Among political independents, those in Generation X or above showed steady support for the death penalty between the early 2000s and early 2010s, but that has dropped modestly since then, from 64% to 58%. The change among younger independents has been larger, from 55% to 45%.

While older Republicans’ views have not changed to a meaningful degree, there has been a slight decline in death penalty support over the past decade among younger Republicans, from 73% to 69%.

As a result of these changes, there are now double-digit gaps in death penalty support between people with the same political party identification from different generations. For example, 38% of Democrats and 82% of Republicans in older generations versus 27% of younger Democrats and 69% of younger Republicans, respectively, favor the death penalty.

It will be interesting to see if and how the incoming Trump Administration, which seems likely to advocate for capital punishment in various way, might have some impact on these public opinion trends.

Notable new sentencing reform recommendations from New Jersey commission

As reported in this local article, New Jersey's Criminal Sentencing and Disposition Commission this week issued its annual report that makes four notable sentencing recommendations. Here are details and context:

The group, which is made up of representatives from every facet of New Jersey’s criminal justice system along with designees from all three of New Jersey’s branches of government, is chaired by Chris Porrino of Lowenstein Sandler, and the former attorney general for the state of New Jersey.

Tasked with making recommendations to Gov. Phil Murphy and the Legislature on a yearly basis to promote a “rational, just, and proportionate sentencing scheme,” the group also offered [these] recommendations: ...

1. Eliminate some mandatory minimums....

2. Allow sentencing judges to consider the fact that a person was abused by the victim of their crime....

3. Allow those who have served long sentences and have aged past 60 (or 62 in some cases) to apply for a reduced sentence....

4. Permit judges to reduce or waive fines and other fees assessed against those convicted of crimes

This additional local article, headlined "Ending mandatory sentences for non-violent drug crimes back in play in N.J.," provides some additional details and context.

UPDATE:  I just found this online version of the letter that was sent to Gov Murphy with the reform recommendations.  Notably, it seems none of thise years recommendations are new, but they are all reiterations of recommendations previously made in prior reports from New Jersey's Criminal Sentencing and Disposition Commission.

Still more good news on crime from Major Cities Chiefs Association as we head into final stretch of 2024

I just saw that late last week the Major Cities Chiefs Association released here its crime data from its on "Violent Crimes Survey" based on reports to 69 law enforcement agencies over the first nine months of 2024.  These data continue to show a significant drop in violent crime in 2024 through September as compared to the same months in 2023.  Specifically, these data report over a 17% decline in homicides and a nearly 10% drop in reported aggravated assaults, rapes and robberies.  The homicide numbers matche up closely with the data coming from this AH Datalytics webpage, which shows a cumulative 18% decline in murders across more than 250 US cities mostly reporting through the end of September 2024.

If 2024 concludes on this note, I think it nearly certain that the reported crime declines of 2024 will be historic.  Indeed, it now seem possible that, after a stunning and historic rise in homicides in 2020, the nation may conclude 2024 with a near record low homicide rate.  (Of course, homicides and other crimes could tick up in the last quarter of 2024 and it seems hard to predict what we should expect in 2025.)  And, as I have noted in prior posts, it strikes me as especiallt notable that the 2024 declines in homicide (following big declines also in 2023) come at a time of relatively little use of the death penalty and relatively lower rates of incarceration by modern US standards.  (Though, as I have also stated before, I generally doubt that punishment trends siginficantly or directly account for homicide trends in any direction.)

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

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

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

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

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

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

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

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

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