Sentencing Law and Policy

"Quantifying disparate questioning of Black and White jurors in capital jury selection"

The title of this post is the title of this article recently published in the Journal of Empirical Legal Studies and authored by Anna Effenberger, John Blume and Martin Wells. Here is its abstract:

This article presents findings from a quantitative study of jury selection using computational natural language processing methods.  We analyzed the voir dire in a set of South Carolina capital trials cases used in previous studies to see if there was evidence of disparate questioning of potential jurors by the prosecution, defense counsel of the trial judge.  More specifically, we examined the descriptiveness and complexity of questioning.  Our results, presented here, revealed significant, but sometimes subtle, disparate questioning of Black venire persons, especially by the prosecution.

The natural language processing software used in this study could provide attorneys challenging the use of peremptory challenges on appeal as being based on race or gender discrimination with evidence relevant to the issue of disparate questioning, which is often a pretext for purposeful discrimination.  It could also potentially be used at trial since the analysis can be conducted almost instantaneously.  Using it at either stage of the proceedings could be a powerful tool in achieving the goal of having more diverse juries in criminal cases, especially where the death penalty is a potential punishment.

Notable concurrence laments that Eleventh Circuit's "sentencing precedent is a crazy quilt"

A helpful colleague made sure I did not miss a remarkable concurring opinion by Eleventh Circuit Judge Kevin Newsom in US v. Curtin, No. 22-10509 (11th Cir. Aug. 28, 2023) (available here).  Judge Newman authored the lengthy opinion for the Court, which affirms the conviction and above-guideline sentence for a defendant convicted of multiple changes stemming from a threat made against a federal magistrate judge.  But his lengthier concurring opinion is the real must-read for sentencing fans, and the start and end of that opinion highlights why:

Among the many issues that this case presents, one recurs with some frequency, and our treatment of it has always struck me as a little odd.  Our precedent has (albeit haphazardly) categorized a criminal defendant’s argument that the district court considered an impermissible factor in imposing a sentence as a challenge to the sentence’s “substantive” reasonableness, rather than an allegation of “procedural” error.  See Maj. Op. at 17.  That didn’t — and for reasons I’ll explain, still doesn’t — make much sense to me.  So I decided to look into it.

The deeper I dug, though, the more problems I uncovered. As it turns out, our sentencing precedent is pretty hopelessly conflicted — not only with respect to the categorization of particular sentencing-related challenges as “substantive” or “procedural,” but also with respect to the rules that govern the preservation of those challenges for appeal and, as a result, the standards by which we review alleged sentencing errors. In the pages that follow, I hope to (1) unmask the contradictions in our precedent and (2) briefly propose a better way of classifying and adjudicating sentencing-related challenges....

Clearly, I got more than I bargained for in this case — and, by extension, so did you.  What I found, though — and what I hope I’ve demonstrated — is that our sentencing precedent is a crazy quilt.  First, we’ve been freakishly inconsistent in our characterization of sentencing challenges as “substantive,” “procedural,” or (tellingly) both.  And in important respects, even where we have settled into something that might be called a pattern, we’ve chosen poorly.  Nowhere is that more true, in my view, than in our classification as substantive of what is to me the self-evidently procedural challenge to a district court’s consideration of an improper sentencing factor.  Second, we’ve been just as erratic in our pronouncements about what suffices to preserve sentencing-related challenges: One day, a boilerplate objection will suffice, the next day it won’t.

Enough is enough.  We should convene the full Court to restore some order. And when we do, we should take our cue from the Supreme Court’s own sentencing decisions.  To start, we should hold that all (as I’ve called them) “input”-related challenges are allegations of “procedural error” and should be assessed at the outset, before turning to evaluate, as a matter of “substantive reasonableness,” the district court’s “output” — i.e., the sentence itself.  And when determining whether a defendant has properly preserved his sentencing-related challenge — whether substantive or procedural — we should apply the usual rules and ask whether he specifically stated the grounds of his particular objection, in a manner that clearly put the district court on notice of its alleged error.

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

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

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

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

Interesting survey findings on jury service and trust in legal actors and institutions

As discussed in this new New York Times piece, a new study conducted in July by the polling firm Ipsos has a lot of interesting new findings not only about Americans generally are viewing various legal actors, but also on the views of those who have served as jurors.  This Ispos press release reports on the basics:

A new survey conducted by Ipsos shows that Americans are generally not familiar with the legal system. Americans who have served on juries are more likely to be familiar with the legal system and trust in the institution and the people who serve in it is higher among those who have served as jurors. The survey shows that one in ten Americans have served on a jury in the last 10 years and about one in three have been summoned for jury service but did not serve. 

This Ipsos pdf has 30 pages of findings that, I suspect, many lawyers and other readers of this blog might find very interesting. Indeed, I would be grateful for any folks inclined to use the comments to flag which particular results — on questions asking about, eg, who may "get special breaks, or get given a harder time" in the justice system" or being interested "in serving on the jury in one of the cases against Donald Trump" — they found especially interesting or surprising.

Unsurprisingly, the New York Times piece about this survey is mostly focus on Trumpian trials and tribulations under the headline "Americans Still Put Their Trust in Juries. Will Trump’s Trials Break That Faith?".  And this poll was likely done only because we now face the prospect of one or more jury trials of a former President.  Still, I think there are much broader stories and lessons in this survey, and it certainly serves to reinforce my affinity for juries and jury service more generally.

"Can the Excessive Fines Clause Mitigate the LFO Crisis? An Assessment of the Caselaw"

The title of this post is the title of this new article available via SSRN authored by Michael M. O'Hear.  Here is its abstract:

The nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans.  These legal financial obligations (“LFOs”) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities.  One possible source of restraint on LFOs may be the Excessive Fines Clause of the Eighth Amendment. Largely ignored by courts and commentators for two centuries, the Clause has in recent years been the subject of a burgeoning volume of litigation and scholarship.  The U.S. Supreme Court has decided a handful of Excessive Fines Clause cases but has left a great many questions about the Clause’s reach unanswered.  Lower courts are now regularly grappling with these open questions, giving rise to an ever-growing body of caselaw.

This Article offers the first systematic survey and evaluation of the caselaw on what counts as a “fine” for Eighth Amendment purposes, particularly in relation to the major categories of LFOs.  Based on an assessment of nearly 200 cases, important interjurisdictional variations are apparent.  In a few states, expansive understandings of the Clause’s reach are becoming established, which may create a foundation for robust constitutional regulation of LFOs.  In most states, though, the precedent is either less favorable or simply still too undeveloped to see a clear trajectory.  The Article further identifies seven key, open doctrinal questions that cut across the LFO categories and will likely determine the extent to which the full range of LFOs will be subject to the Clause.  The Article outlines the main arguments that have been made or might be made on both sides of these questions, providing a sort of roadmap for activist lawyers of the points that must be won for the EFC to have maximum reach.

A couple of notable new sentencing articles from JCLC Online

I just came across a couple of interesting new sentencing pieces recently published by the Journal of Criminal Law an Criminology Online. Here are titles and links (where you can find abstracts and can download the full articles):

Sarah Turner, "White-Collar Crime, Sentencing Gender Disparities Post-Booker, and Implications for Criminal Sentencing" 

Elizabeth E. Wainstein, "The Need for Fairness and Accuracy for Women in Sentencing: Surmounting Challenges to Gender-Specific Statistical Risk Assessment Tools"

Detailing challenges after Florida's move away from requiring capital jury unanimity

The Tampa Bay Times has this extended article about the legal uncertainties and other challenges in Florida in the wake of the state's recent reform to its capital punishment procedures.  The full headline of the piece provides a chaotic summary: "Florida death penalty changes causing ‘chaos,’ attorneys say: 'Undoubtedly, the new statute will plunge Florida’s death-penalty system into further instability and chaos,' one death penalty expert said." I recommend the full article, and here are a few excerpts:

A new state law lowering the number of jurors required to recommend death sentences has spurred a rash of litigation, triggered conflicting judicial rulings and infused an additional level of uncertainty in capital cases....

The law allows death sentences to be imposed based on the recommendations of eight of 12 jurors, an easier threshold than a previous requirement of unanimous jury recommendations.  The change — prompted by Parkland school shooter Nikolas Cruz receiving a life sentence after a jury did not unanimously recommend death — gave Florida the lowest death-penalty jury standard in the nation.

Allowing 8-4 recommendations is the latest in a series of changes in the capital-sentencing process since a 2016 U.S. Supreme Court decision in a case known as Hurst v. Florida.  The ruling found that the state’s death-penalty process was unconstitutional.

In October 2016, in the similarly named case of Hurst v. State, the Florida Supreme Court interpreted and applied the U.S. Supreme Court ruling and said unanimous jury recommendations were required.  The Legislature responded in 2017 by putting such a unanimous requirement in law.

Amid uncertainty over whether the unanimity requirement should be applied retroactively to older cases, justices ordered resentencing for about 150 Death Row inmates who were sentenced based on recommendations by non-unanimous juries.  Before 2016, inmates could be sent to Death Row based on majority — or 7-5 — jury recommendations.

About 90 resentencing proceedings were completed under the unanimity requirement before this year’s law went into effect.  More than three-fourths of those proceedings resulted in life sentences, with prosecutors often not asking for the death penalty in the resentencings.

When Gov. Ron DeSantis signed the 8-4 law this spring, nearly five-dozen Hurst resentencing cases were pending. That has led to disputes about which standard should apply....

The Legislature approved the change after an ideological shift in recent years on the Florida Supreme Court. Shortly after DeSantis took office in 2019, he appointed justices who established a conservative majority.  The court in 2020 reversed course on the death penalty and said unanimous jury recommendations were not necessary....

The change is affecting Death Row inmates preparing for resentencings because of the Hurst decision.  The unanimous standard was in place when the resentencings were ordered, leading their attorneys to argue it should continue to apply in the cases.

The new law also is having an impact on cases involving defendants accused of committing murders before DeSantis signed the law. Their attorneys also maintain the 8-4 threshold should not apply retroactively....

Judges — including in the same judicial circuit — are divided on the issue.  As circuit judges grapple with which standard should apply, a number of appeals have made it to the Florida Supreme Court.  But a “lead” case — if there will be one — has not emerged....

Melanie Kalmanson, an attorney who publishes the Tracking Florida’s Death Penalty blog, pointed to the state’s filings in the Gonzalez case to demonstrate what she called “widespread chaos” in the death-penalty system.  “There’s some indication that even the state is not sure how they want to address the litigation about the new statute,” she said.

Interesting Seventh Circuit discussion of rehabilitation considerations as part of imposition of prison term

A dozen years ago, the Supreme Court issued an important little opinion in Tapia v. US, 564 U.S. 319, 332 (2011), which held that federal sentencing statutes preclude "sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation."  As explained in this post from back in 2011, I helped prepare an amicus brief in Tapia making arguments that did not prevail, driven by a concern that a broad ruling in Tapia might in other cases dissuade sentencing judges from being candid about their interests in helping defendants get needed treatment or from giving appropriate thought to sentencing advocacy that sounded in rehabilitative terminology.  I give that backdrop to explain why I found interesting, encouraging and blog worthy a Seventh Circuit panel opinion from this past week in US v. Long, No. 22-2275 (7th Cir. Aug. 22, 2023) (available here), which starts this way:

This case presents another variation on the challenges posed for sentencing judges by instructions from Congress and the Supreme Court about the required, permissible, and prohibited roles of rehabilitation in sentencing.

Appellant Delvarez Long is serving an above-guideline prison term for possessing a firearm after being convicted of a felony. He argues on appeal that the district court plainly erred by imposing a prison term in part to rehabilitate him, contrary to 18 U.S.C. § 3582(a) as construed in Tapia v. United States, 564 U.S. 319 (2011).  We affirm.  Rehabilitation is an important consideration in most sentences.  Tapia permits a judge to discuss rehabilitation so long as she does not make rehabilitation a primary consideration in deciding whether to impose a prison sentence or how long it should be.  Our review of this record does not show a plain error under Tapia. 

The final two paragraphs of the thoughtful Long opinion highlights why I was worried about how Tapia might disrupt sound sentencing practices while seeking to make sure that it does not:

Section 3582(a) and Tapia put district courts in a difficult position.  Courts must ignore rehabilitation as a goal when imposing or lengthening a prison sentence, even though they must consider rehabilitation at the same hearing, when deciding about supervised release and appropriate conditions. See 18 U.S.C. § 3583(c).  As we said in Shaw, Tapia forces courts to demonstrate “their consideration of the offender’s need for rehabilitation while also disavowing that consideration as a reason for any resulting term of imprisonment.” 39 F.4th at 459.  We ordinarily want a judge to engage with a defendant’s individual history and challenges rather than to apply the Sentencing Guidelines mechanically.  In that engagement, though, Tapia can cast a shadow over thoughtful comments that address a defendant’s unique circumstances or encourage a defendant to take advantage of rehabilitative programs while incarcerated.

We therefore reaffirm the thrust of Shaw: to show a Tapia error, a defendant must show that the district court focused exclusively or disproportionately on rehabilitation in deciding whether to impose a prison term or how long a term should be.  References to rehabilitative programs in prison in passing or when describing opportunities available while serving a sentence selected for permissible reasons will not lead us to find error, let alone plain error.  At the same time, it might be helpful for a sentencing court to include a candid and explicit disclaimer to the effect that rehabilitation goals did not affect whether a prison term was imposed or how long it would be.

"State Constitutional Prohibitions of Slavery and Involuntary Servitude"

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

In recent years, the Thirteenth Amendment has drawn sustained criticism for its “Punishment Clause,” which exempts those duly convicted of criminal offenses from the amendment’s prohibition of slavery and involuntary servitude. Citing the Punishment Clause, courts have struck down challenges by those sentenced to forced labor, arguing that such involuntary servitude is explicitly permitted for those convicted of crimes.  Recent criticism draws on concerns over mass incarceration and expansive forced labor practices — urging that the Thirteenth Amendment be revised to remove the Punishment Clause.

Prompted by increased attention to and criticism of the Punishment Clause, states have begun to take matters into their own hands.  Many state constitutions contain provisions prohibiting slavery and involuntary servitude, yet most of these provisions include similar language permitting involuntary servitude to be imposed as punishment for crimes. Starting in 2018, seven states amended their constitution to remove the punishment exemptions — creating a meaningful difference between the scope of state constitutional protection and the limited protection afforded by the Thirteenth Amendment.

This Article examines state-level constitutional prohibitions of slavery and involuntary servitude, and recent trends toward eliminating punishment clause language from these provisions.  Several recent amendments fall short of meaningful reform by adding additional qualifications that undo any substantive changes these amendments may have made.  Other provisions are limited by other state constitutional requirements that mandate forced labor practices. Despite these shortcomings, Alabama, Colorado, and Nebraska’s constitutions now contain unequivocal bans on slavery and involuntary servitude — provisions that may lend meaningful support to challenges of forced labor regimes.  The Article ends by encouraging other states to take up similar amendments, and urges those pursuing mass incarceration reforms to take note of state constitutional provisions.

US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities

The US Sentencing Commission conducted an interesting and eventful public meeting earlier this afternoon (which can be watched here).   This new USSC press release provides the highlights in its first paragraph:

Today the Commission, by a majority vote, allowed for delayed retroactive application of Amendment 821 relating to criminal history — meaning that certain currently incarcerated individuals could be eligible for reduced sentences made effective beginning on February 1, 2024 (unofficial text).  The Commission also adopted its next set of policy priorities that include, among other things, reviewing and potentially amending how the guidelines treat acquitted conduct for purposes of sentencing as well as assessing the degree to which certain Bureau of Prisons practices are effective in meeting the purposes of sentencing. 

Here are more of the details from the press release on what the criminal history retroactivity piece of the story means:

Equipped with a quorum of commissioners for the first time since 2018, the Commission voted in April to promulgate amendments to the federal sentencing guidelines — including Amendment 821 providing for targeted, evidence-based changes to certain criminal history rules.  Because two parts of that amendment reduce the sentencing range of future defendants, the Commission is required by law to consider whether judges can extend those reductions to previously sentenced individuals.

The Commission voted to delay implementation of any order granting such reduced sentences to ensure that, to the extent practicable, all individuals who are to be released have the opportunity to participate in reentry programs and transitional services that will increase the likelihood of successful reentry to society.

U.S. District Judge Carlton W. Reeves, Chair of the Commission said, “Our decision today is one that brings hope to thousands of currently incarcerated people and their families.  We listened to a full spectrum of views and considered the full costs associated with incarceration balanced with the time needed to review petitions and prepare for successful reentry.”

Part A of Amendment 821 limits the overall criminal history impact of “Status Points” at §4A1.1. Part B, Subpart 1 of Amendment 821 creates a new Chapter Four guideline at §4C1.1 decreasing by two the offense levels for defendants who did not receive any criminal history points and whose instant offense did not involve specific aggravating factors.

Judge Reeves added, “These prospective changes to the criminal history rules made by the Commission in April reflect evidence-based policy determinations that apply with equal force to previously sentenced individuals.  Applying these changes retroactively will increase fairness in sentencing.  At the same time, the 3-month delay will help ensure that individuals released based on our decision today receive the benefit of reentry programs and transitional services essential to support their successful reentry to society, which at the same time promotes public safety.”

The Commission estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

• 11,495 incarcerated individuals will have a lower sentencing range under Part A of Amendment 821 relating to “Status Points” with a possible sentence reduction of 11.7%, on average.
   
• 7,272 incarcerated individuals would be eligible for a lower sentencing range based upon the established criteria under Part B of Amendment 821 relating to “Zero-Point Offenders” with a possible sentence reduction of 17.6%, on average.

Today’s vote concludes two months of deliberations and the first amendment year of policy work for the commissioners, who were all confirmed last August.  As part of its deliberations, the Commission received expert testimony and public comment from a wide spectrum of stakeholders, including senators, judges, lawyers, religious leaders, doctors, professors, advocates, victims, families, and incarcerated individuals.

This year’s guideline amendments are with Congress for a 180-day review period ending November 1, 2023.  If Congress does not act to disapprove the amendments, courts can begin considering petitions for sentence reductions and could order a reduced term of imprisonment effective February 1, 2024 or later.

As for the new USSC policy priorities, here is more on that part of this dynamic story:

Today, the Commission also finalized policy priorities for the amendment year ending May 1, 2024.  In light of the 40th anniversary of the Sentencing Reform Act (SRA), the Commission anticipates undertaking a number of projects examining the degree to which current sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in the SRA.

Among these issues, the Commission will work to assess the degree to which certain practices of the Bureau of Prisons are effective in meeting the purposes of sentencing as set forth in 18 U.S.C. § 3553(a)(2).  The Commission will also compile and disseminate information on court-sponsored programs relating to diversion, alternatives-to-incarceration, and reentry.

The Commission will also review and potentially amend how the guidelines treat acquitted conduct for purposes of sentencing.  The Supreme Court recently denied several petitions for writs of certiorari related to the use of acquitted conduct.  In issuing the denials, three Justices supported the denial to allow the Commission more time to address the issue.  “Last year’s amendment cycle was busy and abbreviated.  The Commission appreciates the opportunity to give proper attention to acquitted conduct, and we will do so this year,” said Judge Reeves.

The Commission will continue to examine the career offender guidelines, including updating the data analyses and statutory recommendations made in the Commission’s 2016 report to Congress entitled Career Offender Sentencing Enhancements.  The Commission will also continue its consideration of alternative approaches to the “categorical approach” through workshops convened to discuss the scope and impact of the career offender penalty enhancements.

The Commission will further continue its research agenda through examination of various issues, including methamphetamine offenses, sentencing differences for cases disposed of through trial versus plea, and sentences involving youthful individuals.

WOWSA. That is a whole lot, and I hope to be able to cover some of the particulars of both the retroactivity decision and the policy priorities in more detail in the coming days and weeks.  For now, I will just say kudos to the US Sentencing Commission for doing all this hard and important work in a transparent and clear manner.

Call for Papers: "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws"

I am pleased to highlight a new call for papers relating to an exciting event I am excited to be involved in helping to plan, "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws."  Here is the call, which is available in full at this link:

The Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law will host a symposium titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws" on March 28-29, 2024 in Drinko Hall at The Ohio State University in Columbus, Ohio.  The symposium aims to examine and assess, from a variety of perspectives and with the help of a variety of voices, recent legal and policy developments regarding collateral consequences, record relief efforts, and broader concerns of justice and fairness for individuals and communities with criminal justice system involvement.

Background

For years, advocates spoke about the “invisible punishment” flowing from the legal restrictions and societal stigmas that burden people with any criminal record long after involvement with the justice system.  But the many concerns surrounding so-called “collateral consequences” have become more visible in legal and policy circles in recent years. Over the past decade, dozens of states have enacted laws seeking to reduce the barriers people with a criminal record face in the workplace, in housing, at the ballot box, and many other areas.

These developments have been characterized by the Collateral Consequences Resource Center as “a full-fledged law reform movement aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system.”  But the import and impact of this modern reform movement remains unclear, in part because record relief laws and practices differ widely across jurisdictions.  Some states have made only modest reforms to their record sealing laws, while other states have enacted ambitious automatic record relief systems.  And the practical impact of record relief reforms vary dramatically depending on not just the reach of the laws, but also the resources that are devoted to implementing these laws. Intriguingly, as record relief efforts have spread at the state level, federal record relief continues to languish.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication, in the spring of 2025.

Proposed abstracts of no more than 300 words are due on November 1, 2023.  Abstracts can be submitted to Jana Hrdinova at hrdinova.1 @ osu.edu.  Accepted researchers will be notified by November 17, 2023.

Download the full call for papers here.

Intriguing Third Circuit panel ruling rejects drug quantity finding based on extrapolation

I have long been troubled by how much weight the US Sentencing Guidelines give to drug quantities in guideline calculations, in part because of how those quantities are sometimes calculated.  A recent Third Circuit panel decision provide a small window into these stories in the course of finding insufficient how federal prosecutors sought to prove up drug quantities in the sentencing of a hinky doctor.  Here is how the opinion in US v. Titus, No. 22-1516 (3d Cir. Aug 22, 2023) (available here):

Though the prosecution bears a heavy burden of proof, we will not let it cut corners.  Dr. Patrick Titus wrote thousands of prescriptions for controlled substances.  The government properly proved that many of these prescriptions were unlawful, so we will affirm Titus’s conviction.  But many other prescriptions were lawful.  And the severity of Titus’s sentence depended on how many were not.  Rather than review every patient’s file, the government urged the court to extrapolate from a small sample.  Yet the government failed to show that doing so would satisfy its burden to prove the drug quantity by a preponderance of the evidence.  Because the court sentenced Titus without enough proof, we will vacate his sentence and remand for resentencing.

Will there be any interesting or surprising crime and punishment discussion at tonight's first GOP debate?

Issues of crime and punishment (and drug policies) have gotten a little play in the early days of the 2024 campaign, but tonight's scheduled GOP debate would be a high-profile opportunity for a candidate to say something notable about crime and punishment issues.  In this vein, I have seen one press piece and one lengthy substack entry flagging criminal justice issues in the run-up to the debate:

From the Washington Examiner, "Up for Debate: Trump, DeSantis, and 2024 GOP hopefuls' stance on crime"

From The Watch (by Radley Balko), "My questions for the GOP candidates: Here's what I'd ask the also-rans at Wednesday's Trumpless debate"

I like a number of Radley Balko's questions, but he fails to suggest asking the GOP candidates about former Prez Trump's signature criminal justice reform achievement, the First Step Act.  Here is one version of a question I would love to see asked on that front:

President Donald Trump helped push the sweeping federal criminal justice reform, the First Step Act, through a GOP-controlled Congress in 2018.  In part because of that legislation (as well as pandemic developments that led to Trump's Justice Department placing thousand more defendants on home confinement), the federal prison population decreased almost 20%, dropping from about 190,000 total federal inmates in January 2017 to just over 150,000 in January 2021.  With the benefit of hindsight, do you view these laws and related developments to be a part of President Trump's record that he should be especially proud of, or do you think this is a part of his record that you would be eager to reverse?

I am fairly certain this question will not be asked, but the efforts by some of the candidates to throw shade on Prez Trump's work on the First Step Act would make for an interesting discussion.  Here is hoping that at least something interesting will happen during the GOP debate, though I am not holding my breath.

Some prior related posts:

• Florida Gov DeSantis reportedly gearing up to attack former Prez Trump for his support of FIRST STEP Act
• New GOP Prez candidate DeSantis pledges to repeal FIRST STEP Act 
• Interesting criminal justice news and notes from the GOP campaign trail
• The First Step Act is a conservative, constructive approach to strengthening public safety"
• Canvassing GOP discussion and perspectives on criminal justice reform in run up to 2024

"#MeToo in Prison"

The title of this post is the title of this new article now on SSRN authored by Jenny-Brooke Condon.  Here is its abstract:

For American women and nonbinary people held in women’s prisons, sexual violence by state actors is, and has always been, part of imprisonment.  For centuries within American women’s prisons, state actors have assaulted, traumatized, and subordinated the vulnerable people held there. Twenty years after passage of the Prison Rape Elimination Act (PREA), women who are incarcerated still face shocking levels of sexual abuse, harassment, and violence notwithstanding the law and policies that purport to address this harm. These conditions often persist despite officer firings, criminal prosecutions, and civil liability, and remain prevalent even during a #MeToo era that beckons greater intolerance for sexual harassment and abuse outside of prison.  Just as #MeToo helped expose the systemic gender injustice that sustains abuse in the workplace and other areas of public life, the intractability of the sexual abuse crisis for incarcerated women demands recognition of the inequality and power imbalance at its root.

PREA and reform discourse treats this harm, however, as an unwanted byproduct of an otherwise constitutional system of criminal justice.  And the treatment of people in women’s prisons remains largely an afterthought in the response to the broader carceral sexual violence crisis.  Those responses treat prison sexual abuse as a “conditions” problem capable of being remedied, no matter how persistent and endemic.  This Article rejects that prevailing account and describes the ways in which women’s prisons create and exploit gender subordination resulting in more sexual violence and gender-based harm.  As traced in this Article, Edna Mahan Prison in New Jersey serves as a dramatic example of the sordid history of women’s prisons in the United States.  At one time, the facility operated as women-led radical prison without bars and locks. But once it operated like a traditional prison, sexual abuse plagued the facility for decades.  New Jersey’s Governor announced plans to finally shutter the prison in 2020 after a sexual abuse crisis dominated headlines—the final blow to the progressive vision of its former reform-minded supervisor and namesake.

Women’s experiences are often ignored in conversations about mass incarceration even though women are the fastest-growing segment of the incarcerated population and experience the highest rates of prison sexual violence as a group.  The harm inflicted in women’s prisons differs from the crisis affecting men in that incarcerated women experience sexual abuse nearly exclusively at the hands of male correctional officers and staff.  It thus mirrors the gender subordinating nature of sexual abuse and violence in the world outside of prisons even while it also thrives on the power dynamics constructed by prisons.  This Article foregrounds those often overlooked concerns and identifies lessons from #MeToo that are necessary to end these sites of gender-based harm.

Ohio prosecutors talking up nitrogen gas executions as a way to reboot state's dormant machinery of death

I flagged in this post a few days ago the dormant state of the death penalty in Ohio.  There has not been an execution in the Buckeye State in over five years even though the state has 122 condemned murderers currently on death row, and 31 of these murderers have exhausted all standard appeals.  The primary reason for this de facto execution moratorium has been the state's ugly history in carrying out lethal injection executions and extensive litigation surrounding the varying drugs and methods used therein.  That history has prompted Governor Mike DeWine to keep pushing back and pushing back execution dates for death row inmates while suggesting to the Ohio General Assembly that they need to address improving execution methods head on.

This new local article, headlined "Prosecutors want to resume executions using nitrogen hypoxia," reports that Ohio prosecutors have a new(?) idea for getting the state's machinery of death up and running again:

It's been five years since Ohio has executed its death penalty. Gov. Mike DeWine delayed executions due to limited access of the drug used for the lethal injection.  But Ohio prosecutors are looking to resume executions through alternative methods.  "We just want to find a pathway forward for the victims of these crimes," said Louis Tobin, the executive director of Ohio Prosecuting Attorneys Association.  

Tobin said Ohio needs to continue its using the death penalty to provide proper justice.  He said if there is a shortage of the drug needed for the lethal injection, Ohio can use nitrogen hypoxia.  "Filings by the defense bar and federal death penalty pleadings and in (the) Supreme Court of Ohio pleadings have acknowledged that it would be a painless method of execution," Tobin said.   The process of nitrogen hypoxia works by removing oxygen and letting a person die by inhaling nitrogen gas....

"Somebody who murders one young child is already facing that possibility without a death penalty," Tobin said, "and without the additional accountability that it provides, you're allowing them to kill the second and third child for free. They're free kills. So the death penalty is what justice demands sometimes. Either we're going to be a state that prioritizes public safety and prioritizes the victims of crime or we're not." 

In response to the Ohio Prosecuting Attorneys Association proposal, the governor’s office said only the Ohio General Assembly can change the methods for applying the death penalty.

As long-time readers know, there has long been discussion of execution by nitrogen gas as an alternative to lethal injections.  This discussion really picked up over the last decade as more and more states struggled with their lethal injection protocols.  And  in 2018, Alabama enacted a statute that formally authorized execution by nitrogen, and at least a few other states have execution protocol laws that would allow using this novel execution method.  But, as of now, no modern execution in the US has been completed using nitrogen gas and any efforts to switch execution methods in Ohio would surely engender significant state and federal litigation.

For a variety of reasons, I expect that Ohio's death penalty will remain dormant for the rest of Governor DeWine's time in office.  But, in a couple of years, a number of folks with a track record of support for the death penalty will likely start running to be Ohio's next Governor and it will be very interesting to see if the state's dormant death penalty gets any more attention.  In the meantime, folks can read up on nitrogen gas as an execution method via a small sample of prior posts on the topic: 

• Is nitrogen gas the best modern execution alternative to lethal injection?
• A worldly perspective on different execution methods
• Should problems with lethal injection prompt return of other execution methods?
• Effective discussion of nitrogen gas as execution method alternative
• Examining whether nitrogen gas could be a viable new method for executions 
• Making the case against nitrogen as an execution method 
• "Execution by Nitrogen Hypoxia: The Search for Scientific Consensus"
• Might Alabama become the first state to use nitrogen gas for an execution?

Bolts provides guide to "Everything You Always Wanted to Know About State Supreme Courts"

At Bolts, Daniel Nichanian and Quinn Yeargain have put together a remarkable set of materials focused on state supreme courts which, as they explain in this overview accounting, serve as "battlefields for some of today’s most pressing issues, from abortion rights and climate to extreme sentencing and ballot access."  Here is more from the overview, with a snippet highlighting why criminal justice fans should care a lot about these matters:

Most obviously, these courts have become an urgent route for liberal litigants in light of conservatives’ durable majority on the U.S. Supreme Court.  State courts get to interpret state constitutions, which often protect rights and liberties more expansively than the U.S. Constitution, and they’ve proven friendly to arguments that wouldn’t succeed in federal court.  The right has also focused on them to expand its control over the judiciary.

But these courts have even more clout than you may realize.  They can shape virtually any policy area that state and local governments touch.  They’re likely to have the final word on all cases filed in state courts, and many play additional roles that extend far beyond deciding cases, from crafting the rules of criminal trials to taking part in redistricting and certifying elections.

And yet these courts’ exact powers and procedures often remain well under the radar.  What justices do and how they’re selected varies widely from state to state, and it always differs from the federal system.  Most states elect justices but have their own twist on electoral rules, while some courts are shaped by commissions largely out of public view — and nearly all serve some idiosyncratic function with little scrutiny.  These distinctions all influence how each court acts and what might be levers of change.

Today Bolts is publishing a new state-by-state resource that plunges into the weeds of these critical judicial powers. For each of 54 courts — accounting for the highest court in all 50 states, two of which have two separate high courts, plus Puerto Rico and D.C. — we cover every nook and cranny of how they are organized, what functions they serve, and rules for judicial selection.....

If you care about criminal justice: State courts shape the rights of people accused of crimes at every stage of a criminal case, and some courts have pushed back more than others against invasive police practices or extreme sentences.  Many supreme courts also write their state’s rules of criminal procedure — lengthy codes that govern how cases unfold, from the issuance of warrants to the calculation of sentences, and some courts even set bail schedules.  This is an often-overlooked but potent policymaking role.  In 2021, for instance, Arizona’s supreme court eliminated peremptory strikes — the practice by which attorneys can eliminate someone from the jury pool without stating a cause — throughout its state. 

Noting the notable death toll in hot Texas prisons this summer

This new Texas Tribune article discussing the considerable number of persons who have died in Texas prisons this summer.  Here are excertps:

At least 41 people have died in stifling, uncooled prisons of either heart-related or unknown causes during Texas’ relentless and record-breaking heat wave this summer, according to a Texas Tribune analysis.

Relatives of those who died and prison rights advocates insist at least some of those deaths were caused by the heat. More than a dozen of the prisoners were in their 20s or 30s, with at least four people 35 and under reportedly dying of cardiac arrest or heart failure. The Texas Department of Criminal Justice says no prisoner has died from the brutal heat in its facilities since 2012, around the time the agency began being bombarded with wrongful death and civil rights lawsuits over the heat.

On Monday, Democrats on the U.S. House Committee on Oversight and Accountability implored Republican Chair James Comer to launch an investigation into conditions at prisons enduring sweltering temperatures, especially in Texas.  The request follows the Republican committee members’ investigation into conditions for defendants jailed on charges related to the Jan. 6, 2021, insurrection at the U.S. Capitol....

More than two-thirds of Texas’ 100 prisons don’t have air conditioning in most living areas inside the concrete and steel buildings where officers and prisoners work and live. With little to no ventilation and temperatures routinely soaring into the triple digits outside, the thermometer reading often rises even higher inside the prisons.

Since June, at least a dozen prisoners have died from reported cardiac arrest or heart failure in uncooled prisons on days when the regions’ outdoor heat indices were above 100 degrees, according to a Texas Tribune analysis of prison death reports and weather data. At least another 29 have died of what are still unknown causes pending autopsy results. The death count is likely higher, as prisons have 30 days to report a prisoner’s death to the state.

The Sentencing Project releases "The First Step Act: Ending Mass Incarceration in Federal Prisons"

I sense that the upcoming GOP Prez candidate debate, which seems likely to include some discussion of some crime and punishment issues, has prompted a number of groups to complete reports on the First Step Act.  Yesterday brought CCJ's short report on "First Step Act: An Early Analysis of Recidivism."  Today, The Sentencing Project is out with this longer report titled "The First Step Act: Ending Mass Incarceration in Federal Prisons."  This report provides some more background and coverage on various aspects of the First Step Act, and here is how it gets started:

In 2018, Congress passed and then-President Donald Trump signed into law the bipartisan First Step Act, a sweeping criminal justice reform bill designed to promote rehabilitation, lower recidivism, and reduce excessive sentences in the federal prison system.  Lawmakers and advocates across both political parties supported the bill as a necessary step to address some of the punitive excesses of the 1980s and 1990s.

The First Step Act includes a range of sentencing reforms which made the Fair Sentencing Act of 2010 retroactive, enhanced judicial discretion, created earned time credits, increased good time credits, reduced certain mandatory minimum sentences, and expanded the safety valve that allows persons with minor prior convictions to serve less time than previously mandated.

The First Step Act also seeks to expand opportunities for people in federal prisons to participate in rehabilitative programming to support their success after release. The law aims to produce lower odds of recidivism by incentivizing incarcerated individuals to engage in rigorous, evidence-based rehabilitation and education programming.  In exchange and based on a favorable assessment of risk to the community, they may earn an earlier opportunity for release to community corrections.

The Department of Justice (DOJ) reports promising results thus far. The recidivism rate among people who have benefitted from the law is considerably lower than those who were released from prison without benefit of the law. Among the nearly 30,000 individuals whose release has been expedited by the First Step Act, nearly nine in every 10 have not been rearrested or reincarcerated.  This 12% recidivism rate lies in stark contrast to the more typical 45% recidivism rate among people released from federal prison.

Another "Set for Sentencing" podcast focused on acquitted conduct and uncharged conduct and other hot sentencing topics

In a number of past posts, I have highlighted the great podcast created by Doug Passon, a defense attorney and documentary filmmaker, which is called "Set for Sentencing."  I probably should blog about every new weekly episode because Doug produces, week in and week out, a whole lot of terrific sentencing content (and folks can catch up at this archive) 

I have been honored to speak on the "Set for Sentencing" podcast a few times, and I have had the distinct pleasure of discussing "acquitted conduct" sentencing on the blog multiple times.  As noted via this post from January, Mark Allenbaugh and I first spoke with Doug Passon about proposed amendment to the US Sentencing Guidelines on acquitted conduct and SCOTUS consideration of the issue in an episode titled, "PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences." 

This summer, in the wake of the US Sentencing Commission opting not (yet) to move forward with any Guideline amendments and SCOTUS seemingly deferring to the Commission on this issue, Mark Allenbaugh and I got back together with Doug Passon to tape another episode.  This one is brilliantly titled, "Acquitted Conduct Revisited: Mmmmm... Flavors of Evil."  This new podcast discusses the latest (lack of) developments on acquitted conduct, and also includes some heated discussions of whether and how we ought to distinguish between acquitted conduct and uncharged conduct.  Among other things I learned via this podcast, the definition of "uncharged conduct" can be as unclear as any definition of "acquitted conduct." 

Some of many prior related posts:

• If you never tire of acquitted conduct talk, here is a podcast episode for you 
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements 
• After US Sentencing Commission deferred on issue, Supreme Court back to conferencing acquitted conduct cases
• In final order list of Term, Supreme Court grants cert on big new Second Amendment case and denies/punts cert on acquitted conduct cases 
• Inartful dodgers: some thoughts on the SCOTUS acquitted conduct cert denial
• Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address
• Inartful dodgers: did the Justices write cert denial statements in the acquitted conduct cases months ago? 
• Inartful dodgers: no constitutional substance in Justice Sotomayor's cert denial statement in acquitted conduct cases 
• Inartful dodgers: do our constitutional values suggest there is "no relevant difference ... between acquitted conduct and uncharged conduct"? 

Recapping some recent notable reports on prison realities and more from the Prison Policy Initiative

I recently received a helpful review of just some of the remarkable materials and data assembled by the Prison Policy Initiative on an array of prison- and punishment-related topics.  I am pretty sure I have blogged about some or even most of these reports, but I thought it still helpful to reprint here links to the reports and the brief summaries sent my way:

• Punishment Beyond Prisons: Incarceration and supervision by state -- The criminal punishment system is much bigger than jails and prisons. Our report shows that all states -- even those that consider themselves progressive leaders -- put significant numbers of their citizens on probation and parole, systems that often replicate prison conditions in the community. Two 50-state charts comparing states' rates of supervision and incarceration show that when probation and parole are taken into account, progressive states like Rhode Island don't appear too different than famously "tough" states like Louisiana.
• The aging prison population: Causes, costs, and consequences -- The share of people in prison aged 55 and older has skyrocketed over the last 30 years, from 3% in 1991 to 15% in 2021. What caused this huge shift in the prison population and what can be done about it? In a new briefing, we explain what has caused the national "greying" of prisons, highlight the harmful consequences of locking up so many older people, and point to solutions. (Includes 50-state data.)
• New data on HIV in prisons during the COVID-19 pandemic underscore links between HIV and incarceration -- Recent data from the Bureau of Justice Statistics show that the rate of HIV among people in prisons is three times higher than the general U.S. population. We break down the rates of HIV in all 50 state prison systems, exploring the root causes of this health disparity. We also discuss the criminalization of HIV across the U.S.: 35 states still have laws on the books criminalizing actions that can potentially expose another person to HIV, even if no transmission occurs.
• SMH: The rapid and unregulated growth of e-messaging in prisons -- With a growing number of incarcerated people and their families able to use e-messaging services to keep in touch, we examined how much these services cost in all 50 states and the federal Bureau of Prisons, finding that the cost per message ranges from being free (or just a few cents) in some states to a high of 50c in states like Arkansas. We also explore other concerns with electronic messaging, including privacy issues and "bulk pricing" schemes, and lay out our recommendations for how to make this service work for incarcerated people, their families, and even prisons.
• Heat, floods, pests, disease, and death: What climate change means for people in prison -- The summer of 2023 may be the mildest summer of the rest of our lives if governments do not take action to halt climate change. In this briefing, we discuss new research that proves the connection between extreme heat in prisons and higher mortality rates, with one surprising finding: During heat waves, incarcerated people in Northeast and Western states fare the worst. We also dive into how other aspects of climate change -- such as mosquito infestations and infectious diseases -- stand to impact people in prison.

CCJ releases encouraging new short report on "First Step Act: An Early Analysis of Recidivism"

This morning I received an email from the Council on Criminal Justice (CCJ) linking me to this notable new report authored by Avinash Bhati and titled ""First Step Act: An Early Analysis of Recidivism."   This CCJ press release about the short report provides this effective review of its highlights:

Previous comparisons between FSA releases and the overall federal prison population have not accounted for differences in the groups, including levels of risk of reoffending, tracking periods, and other characteristics. The CCJ analysis estimates recidivism rates among individuals released from the federal Bureau of Prisons (BOP) prior to the FSA who had similar risk profiles and were tracked for similar periods of time (“similarly situated”) as those released under the FSA.

According to data published by the U.S. Department of Justice, 29,946 people were released from BOP facilities under the FSA from 2020 to 2022.  The Council’s analysis of this data finds that, when compared to similarly situated individuals released from the BOP prior to the Act’s implementation, individuals released under the FSA have:

• An estimated 37% lower recidivism rate. According to BOP data, the recidivism rate for FSA releases is 12.4%, compared to an estimated recidivism rate of 19.8% for similarly situated pre-FSA releases.

• An estimated 3,125 fewer arrests incurred. With a recidivism rate of 12.4%, the people released under the FSA over three years could have accounted for between 3,712 and 4,330 arrests. With an estimated recidivism of 19.8%, an equal number of similarly situated pre-FSA releases could have accounted for between 5,918 and 7,455 arrests over the same three-year period.

"Prison Abolition Without the Ethic"

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

Prison abolitionists stand for an “ethic.”   The ethic rejects punishment of all kinds, as well as capitalism broadly understood.  By focusing on their ethic, abolitionists mask strong arguments for prison abolition -- or at least something like it -- from within more common commitments.  The ethic therefore undermines actual abolition in the name of a distinct and contestable set of theories.

Updating the (dormant) state of the death penalty in Ohio

The headline of this local article, "Ohio death row inmates spend 21 years waiting for execution date," caught my eye, and the piece includes a useful summary of the Buckeye State's modern death penalty history.  Here is an excerpt:

Ohio’s next execution of a death row inmate was originally on the calendar for exactly three months from now on November 16. But that date, like so many others, was recently pushed back.

It’s been five years since the state’s last execution. We found state officials are calling the system “broken” as Ohio’s unofficial death penalty moratorium continues.

The governor keeps pushing back execution dates for death row inmates as the struggle to find the drugs needed for lethal injection stretches on. 122 inmates are currently on death row in Ohio. 19 Investigates found 31 of those inmates are scheduled for execution....

The average time an inmate spends on death row is now 21 years. Ohio death row inmates are more likely to die from natural causes or suicide than lethal injection.

In the Ohio Attorney General’s most recent Annual Capital Crimes Report, state officials said “It is a system that is not fairly, equally or promptly enforced.”

“Ohio’s residents and their elected leaders should make one of two decisions: Either overhaul the capital punishment system to make it effective, or end it,” the report concluded.

The report cited studies showing it costs at least one million dollars per inmate to keep them on death row, which is much more than the cost of life in prison.

"Inside Out: Legacies of Attica and the Threat of Books to the Carceral State"

The title of this post is the title of this paper available via SSRN and authored by Jamie Jenkins. Here is its abstract:

The largest book ban in the United States takes place in this country’s prison system.  Prison officials can ban any book that threatens the security or operations of the facility.  Books about Black people in America and books about the history and politics of prisons are often targeted for their potential to be divisive or incite unrest.  The result is that Black people, who are already disproportionately victimized by the criminal punishment system, are prevented from reading their own history and the history of the institution imprisoning them.  This Note examines the legal backdrop enabling these draconian book bans to persist today.  As an example, it highlights the recent ban of Heather Ann Thompson’s “Blood in the Water: The Attica Prison Uprising of 1971 and its Legacy” in Attica Correctional Facility.  It situates book bans in prisons alongside the anti-CRT mania plaguing our school systems, and labels both practices as forms of “memory law” meant to stifle the democratic engagement of marginalized groups. Finally, this Note argues for a rebalancing of interests that centers the rights and needs of incarcerated people.

In Jan 6 case, split DC Circuit rules sentence for petty offense cannot include imprisonment and probation

As reported in this CNN piece, a "federal appeals court in Washington issued a ruling Friday that jeopardizes the sentences of some January 6 rioters who were convicted of misdemeanors for trespassing at the Capitol and were sentenced to both jail time and probation."  Here is more:

The opinion by DC Circuit Judges Justin Walker and Judith Rogers determined that January 6 rioter James Little couldn’t receive a sentence of prison followed by probation – what is sometimes called a “split sentence” – for his petty offense.  “Probation and imprisonment are alternative sentences that cannot generally be combined,” the appeals court wrote.

Judges in DC’s federal trial-level courts had used these “split sentences” for low-level January 6 offenders to briefly jail them as punishment for their role in the historic attack on the Capitol and then to keep them on probation and under court supervision through the next election....

In his dissent Friday, [Judge] Wilkins wrote that the majority’s ruling robs judges of a tool Congress gave them.  “If petty offenders need a short prison sentence to punish them, to reflect the seriousness of the offense and to deter them from future criminal conduct, they need it regardless of whether they committed one petty offense or two,” Wilkins wrote. “If petty offenders need rehabilitation following imprisonment, they need it regardless of whether they committed one petty offense or two.”

The ruling in US v. Little, No. 22-3018 (DC Cir. Aug. 18, 2023), is available at this link.  Here is how the majority opinion starts:

James Little committed a petty offense.  The district court sentenced him to prison, followed by probation.  The only question on appeal is whether that sentence is authorized by statute.

It is not.  Probation and imprisonment are alternative sentences that cannot generally be combined. So the district court could not impose both for Little’s petty offense.

Here is how the dissent begin:

James Little pleaded guilty to a petty offense under 40 U.S.C. § 5104(e)(2)(G) related to his participation in the January 6, 2021 insurrection at the United States Capitol.  The District Court sentenced him to 60 days’ imprisonment, followed by three years of probation.  On appeal, Little offers several different reasons why his split sentence violates federal sentencing statutes.  The majority agrees.  Because I believe that the majority and Little are mistaken, I respectfully dissent.

Celebrating "Drug Enforcement and Policy Center at Five Years"

I am happy to be able to note and celebrate that the OSU academic center that I helped start and help direct is no longer a toddler. As highlighted via this web-based report, the Drug Enforcement and Policy Center has now been up and running for five years.

I hope folks will take a few minutes to check out "Drug Enforcement and Policy Center at Five Years" to get just an overview of just some of the research, service work, and range of educational programs that have been part of DEPC's first five years.  I am so proud of so much of what DEPC has done, and in this space I will flag here just a very small slice of DEPC research and programming that might be of particular interest to sentencing fans:

"Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020"

"Drug Sentencing Reform in Ohio"

"When a Prison Sentence Becomes Unconstitutional"

"How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition"

"Adding Firearm Rights Restoration to the Reentry Process for Individuals Convicted of Drug Offenses in Ohio"

"President Biden's Pardons: What It Means for Cannabis and Criminal Justice Reform"

"Understanding Drug Sentencing Symposium"

"Special Symposium Issue of Federal Sentencing Reporter: Understanding Drug Sentencing"

I could go on and on, but I will just say again, check out "DEPC at 5"

Intriguing accounting of Texas punishment numbers

The latest issues of Texas Monthly includes "a roundup of the many categories — both good and bad — in which Texas ranks number one. "  One notable part of the roundup is titled "When It Comes to People Behind Bars, Texas Is Way Ahead," and here is part of the discussion (with links from the original:  

For years our elected officials — sheriffs, district attorneys, judges, and governors — have won office by promising to be tough on crime.  The most infamous metric for this is that we’re the number one state in executions.  Since 1976, when the Supreme Court declared the death penalty was once again constitutional, we’ve killed nearly five times more convicts than Oklahoma, our nearest competitor.  (Our northern neighbor, however, executes more prisoners per capita than we do; we’re number two by that measure.) 

But we’re also the leader when it comes to living, breathing subjects of the criminal justice system: no state has more inmates than Texas.  (Though, again, on a per capita basis we don’t come out on top; we’re number ten, behind some much smaller states.) We weren’t always number one; California, with a far bigger population, used to outdo us.  Then in the nineties, Governor Ann Richards led an expansion of prisons and a tightening of parole rules that pushed us into the top spot.  Between 1993 and 1998 the population of our state prisons, state jails, and private facilities more than doubled, to 143,889 — more than the entire population of Waco.  Ten years later we reached 156,126 inmates.  Yet, as crime rates fell, so did those numbers, aided, to the surprise of many, by conservative politicians affiliated with the Texas Public Policy Foundation’s Right on Crime initiative, which framed prison issues as economic issues.  Texas began sending nonviolent inmates to community-based programs designed to divert them from future crimes, and it started closing prisons, not building new ones.  Then, during the pandemic, law enforcement curtailed arrests, the court system slowed down its processing, and TDCJ took fewer transfers from county lockups.  By April 2021 Texas had 116,926 inmates in its prisons.

But now, as society is getting back to normal, our numbers are climbing once again.  As of January, Texas had 124,893 inmates. California, with 10 million more residents, had about 29,300 fewer inmates.  And this is all part of a much larger web. Texas has more inmates in “administrative segregation” — solitary confinement in all but name — than any other state, more than 3,000.  And our numbers are shockingly high when it comes to prisons without air-conditioning, incidents of prison rape, and unpaid inmate labor.

None of these changes take into account our 252 county jails, where, by some accounts, on average more than 60,000 men and women await a trial, a plea bargain, or a transfer to state prison.

Highlighting how even the "godfather of progressive prosecutors" has struggled to advance re-sentencing plans

The Los Angeles Times has this notable new article, headlined "Frustration and criticism as L.A.’s D.A. struggles to reform sentencing," which highlights how even progressive prosecutors face various challenging is advancing progressive resentencing plans.  Here are excerpts from the lengthy piece:

On his first day in office in 2020, Gascón unveiled a list of seismic policy shifts including the creation of a re-sentencing unit that he said could reduce the terms of up to 30,000 people sent to California prisons by L.A. prosecutors under what he called outdated sentencing models. But as of mid-July, only 95 people have actually been recommended for re-sentencing by the unit he formed, according to data provided to The Times in response to a public records request....

While critics say Gascón’s attempts to provide post-conviction relief are still a major improvement over the prior administration, the slow pace has drawn a mix of frustration and criticism from defense attorneys and reform advocates who expected more from the so-called “godfather of progressive prosecutors.”

Some have expressed concern that constant discord in the office, including two failed recall attempts, has made staff hesitant to take action. “They’re worried about having their names on briefs when someone is released,” Michael Romano, chair of Gov. Gavin Newsom’s committee on revising the penal code and a former adviser to Gascón, said of some prosecutors in Gascón’s re-sentencing unit. “They’re very concerned about recidivism.”

Despite Gascón’s comments about thousands of people needing to be re-sentenced, the unit is still working off an initial list of 400 cases it was asked to review. Of those cases, prosecutors have only sought re-sentencing in 162, according to the records provided to The Times. The unit declined to pursue an additional 122 cases, and roughly 100 are still awaiting a decision by the re-sentencing unit or a judge....

Tiffiny Blacknell, a spokesperson for Gascón’s office, defended the re-sentencing initiative and said the number of people who’ve benefited is “greatly multiplied” if expanded to include the work of other units in the office. She pointed to cases where defendants were released for medical reasons, death penalty cases that were reduced to life without parole, and others impacted by the office’s use of California’s prosecutor-initiated re-sentencing law, which took effect in 2019.

Blacknell said the office helped re-sentence 207 defendants under that law — a figure they say far outpaced other large counties in California — but did not provide exact figures for other forms of re-sentencing. Blacknell also said “it took a number of months” to get the unit up and running during Gascón’s tumultuous transition to power in the office, a period marked by lawsuits and public rancor from many of his own prosecutors.

Another factor is the broader staffing crunch in the L.A. County court system. The district attorney’s office had only 808 prosecutors as of mid-June, its smallest roster in decades. The re-sentencing unit has only three full-time deputy district attorneys at the moment, according to Blacknell.

While reform advocates and attorneys have lauded Gascón’s intent, they say his understaffed and slow-moving unit has failed to aid anywhere near the number of defendants that it could... In practice, lawyers who handle post-conviction cases say Gascón is only going after “low-hanging fruit” by focusing on nonviolent offenders, leaving others in need of relief out in the cold. Defense attorney Andy Stein remembers getting dozens of phone calls around the time of Gascón’s swearing in from people facing the kinds of lengthy sentences that the district attorney’s policies were meant to help. But he said he’s only been able to aid a few.

“I think the public has a total misconception of what’s going on,” Stein said. “He’s not letting tons of people out, he’s letting hardly anybody out … the road to hell is paved with good intentions. He’s under-equipped, under-funded.”

Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty

As reported in this AP piece, the "suspected architect of the Sept. 11, 2001, attacks and his fellow defendants may never face the death penalty under plea agreements now under consideration to bring an end to their more than decadelong prosecution, the Pentagon and FBI have advised families of some of the thousands killed." Here is more:

The notice, made in a letter that was sent to several of the families and obtained by The Associated Press, comes 1 1/2 years after military prosecutors and defense lawyers began exploring a negotiated resolution to the case.

The prosecution of Khalid Sheikh Mohammed and four others held at the U.S. detention center in Guantanamo Bay, Cuba, has been troubled by repeated delays and legal disputes, especially over the legal ramifications of the interrogation under torture that the men initially underwent while in CIA custody. No trial date has been set.

“The Office of the Chief Prosecutor has been negotiating and is considering entering into pre-trial agreements,” or PTAs, the letter said. It told the families that while no plea agreement “has been finalized, and may never be finalized, it is possible that a PTA in this case would remove the possibility of the death penalty.”

Some relatives of the nearly 3,000 people killed outright in the terror attacks expressed outrage over the prospect of ending the case short of a verdict. The military prosecutors pledged to take their views into consideration and present them to the military authorities who would make the final decision on accepting any plea agreement.

The letter, dated Aug. 1, was received by at least some of the family members only this week. It asks them to respond by Monday to the FBI’s victim services division with any comments or questions about the possibility of such a plea agreement. The FBI had no comment Wednesday on the letter....

Jim Riches, who lost his firefighter son Jimmy in 9/11, went to Guantanamo for pretrial hearings in 2009. He remains deeply frustrated that the case remains unresolved 14 years later.  He said he laughed bitterly when he opened the government’s letter Monday. “How can you have any faith in it?” Riches asked.  The update “gives us a little hope,” he said, but justice still seems far off.

“No matter how many letters they send, until I see it, I won’t believe it,” said Riches, a retired deputy fire chief in New York City.  He said he initially was open to the use of military tribunals but now feels that the process is failing and that the 9/11 defendants should be tried in civilian court.

The Obama administration at one point sought to do so, but the idea was shelved because of opposition from some victims’ relatives and members of Congress and city officials’ concerns about security costs.  As the 22nd anniversary of the attacks approaches, “those guys are still alive. Our children are dead,” Riches said.

Split Fourth Circuit panel reverses denial of sentence reduction motion and orders 20-year reduction based on stacked § 924(c)

A helpful reader made sure that I did not miss a notable Fourth Circuit ruling today in US v. Brown, No. 21-7752 (4th Cir. Aug. 16, 2023) (available here). The majority opinion for the court begins this way:

On July 30, 2014, a jury convicted Kelvin Brown on seven counts, including two counts of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). At the time of Brown’s sentencing, his two § 924(c) convictions carried a five- and twenty-five-year mandatory minimum sentence, respectively. The district court thus sentenced Brown to thirty years in prison for his § 924(c) convictions, and, together with his other five convictions, to fifty-seven years’ imprisonment total.

In July 2020, Brown moved for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Brown primarily argued that his release was warranted because he was at risk of serious illness from COVID-19 and because, under the First Step Act’s amendment to § 924(c) sentencing, he would only be subject to a combined ten-year mandatory minimum for his two § 924(c) convictions if sentenced today.  The district court twice denied Brown’s motion, each time without addressing the disparity between his § 924(c) sentence and the much shorter mandatory minimums the First Step Act now prescribes.

We hold that the district court abused its discretion by denying Brown’s motion because his disparate sentence creates an “extraordinary and compelling reason” for his early release, and the § 3553(a) sentencing factors overwhelmingly favor a sentence reduction.  We therefore reverse and remand with instructions to rectify that disparity and reduce Brown’s prison sentence by twenty years.

The majority opinion concludes with some explanation for why it orders a 20-year sentence reduction rather than another remand:

“Ordinarily, we understand that district courts wield broad discretion in deciding compassionate release motions.” Malone, 57 F.4th at 177.  So, in a different case, we might remedy the district court’s error by remanding for the district court to consider Brown’s disparate sentence in the first instance.  Yet the district court here has already had two opportunities to review Brown’s compassionate release motion: its initial denial of Brown’s motion in July 2020, and its second denial in December 2021 after we remanded Brown’s case for further consideration.  Each time, the district court neglected to address Brown’s disparate sentence. That neglect persisted despite our express recognition in our previous remand order that McCoy — and its holding that disparate § 924(c) sentences can constitute “extraordinary and compelling reasons” for release — “is relevant to this case.” Brown, 2021 WL 4461607, at *2 n.4.

The dissent, authored by Judge Quattlebaum, starts this way:

In an extraordinary and, in my view, regrettable decision, the majority reverses the district court’s order denying Brown’s motion for compassionate release.  It does so only by imposing a standard for explaining decisions that is more demanding than what the Supreme Court recently established. Concepcion v. United States, 142 S. Ct. 2389, 2405 (2022) (“All that is required is for a district court to demonstrate that it has considered the arguments before it.”).  But the majority does not stop there. It then usurps the district court’s assigned responsibility by stepping in to re-weigh the sentencing factors, substitute its judgment for that of the district court and order a 20-year sentence reduction.  The majority may well be troubled by the length of Brown’s original sentence.  But our ordered system of justice requires that appellate courts apply standards set forth by the Supreme Court. And it requires that discretionary sentencing decisions be made by district court judges.  The majority today does neither.  I dissent.

Deep dive into stores of juvenile LWOP sentences and their review

The New York Times has this lengthy new feature on extreme sentencing of juvenile offenders, with a focus particularly on happenings in Philadelphia.  I recommend the full article, which is headlined "Sentenced to Life as Boys, They Made Their Case for Release."  Here are some excerpts that highlight some of the data reported within broader story-telling:

Philadelphia lawyer named Bradley Bridge ... began the enormous undertaking of compiling a list of all the prisoners in Pennsylvania who were sentenced to life as minors. No one in the state had ever kept track of this group, who came to be called “juvenile lifers” in the courts and “child lifers” by some of the inmates themselves.

He expected the list to be long. He didn’t expect it to eventually include more than 500 names, nearly one-fifth of the more than 2,800 child lifers in the country. More than 300 of them had come through Philadelphia’s system, making a city with less than 1 percent of the country’s population responsible for more than 10 percent of all children sentenced to life in prison without parole in the United States. No other city compared.  Even more glaring: More than 80 percent of Philadelphia’s child lifers were Black. Nationally, that figure was roughly 60 percent....

In 2008, the Equal Justice Initiative found 73 children who had been given sentences of life without parole when they were 13 and 14 years old.  And all of the people who received those sentences for crimes other than homicide were children of color. “It just said something about the way in which race was a proxy for a presumption of dangerousness, this presumption of irredeemability,”[Bryan] Stevenson said....

The Supreme Court’s rulings in Miller and Montgomery marked an important rethinking of culpability when it comes to children who commit the most serious crimes.  But the practical implications of the rulings were limited: the court hadn’t abolished all life without parole sentences for children — only ones where state laws made the sentences mandatory. And while child lifers now had a chance to make a case for their release, prosecutors could still seek new life sentences.  In other states with high numbers of child lifers, including Michigan and Louisiana, as well as some parts of Pennsylvania, that’s just what they did.

Of the more than 300 child lifers who became eligible for resentencing in Philadelphia in 2016, all but about a dozen have been resentenced, and more than 220 have been released, the majority of them on lifetime parole.  That’s nearly a quarter of the roughly 1,000 total child lifers who have been released across the country.  These numbers make Philadelphia, once an outlier in imprisoning minors for life, now an outlier in letting them go.  By 2020, the city had resentenced more child lifers than Michigan and Louisiana combined. What set the city apart, said Mr. Stevenson, of the Equal Justice Initiative, was not just the buy-in from local officials and public defenders, but also the community of child lifers who became their own best argument for release....

Since the Supreme Court decisions, more than half of all states have outlawed life without parole sentences for children altogether, reducing the number of child lifers left in the country to fewer than 600, according to the Campaign for the Fair Sentencing of Youth, a national nonprofit.  Mr. Stevenson’s organization is now working to raise the minimum age at which children can be tried as adults in 11 states, including Pennsylvania, where there is no age floor.  Other states are considering abolishing mandatory life without parole sentences for people under 21.

Back-to-school plug for Season 1 of "Drugs on the Docket" podcast

In this post from May, I flagged that the Drug Enforcement and Policy Center at The Ohio State University had just released Season One of a new podcast, "Drugs on the Docket."  All six episodes of this first season, each running under an hour, can be accessed on Apple Podcasts, Google Podcasts and YouTube.   Especially as law professors and law students are in "back to school" mode, I thought it might be a good time to highlight this listener-friendly (and mostly timeless) resource about the intersection of drug policies and the work of criminal courts.

As I have said before, in my (admittedly biased) view, the various curated discussions in this "Drugs on the Docket" podcast are all quite interesting and informative.  Over the summer, I heard positive feedback from fellow academics (both law profs and other profs), with some indicating that they are planning to incorporate some podcast content into their classes.  I am planning to encourage my 1L Criminal Law students to check out all the episodes, and I am also working with my terrific colleagues at DEPC to put together some bonus material (with Season 2 also in the works for likely release in Spring 2024).  

Once again, here is how the podcast subject matter is described via this podcast webpage:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Please check it out because it makes for great back-to-school listening.

"The Capital Shadow Docket and The Death of Judicial Restraint"

The title of this post is the title of this new paper on SSRN authored by Jenny-Brooke Condon. Here is its abstract:

The Supreme Court’s recent approach to late-state execution challenges on its otherwise opaque shadow docket illuminates a court comfortable with playing an aggressive, decisive role in America’s system of state killing.  The Court would prefer for us to think of its role differently — as a passive, mere agnostic participant in a process defined by judicial restraint.  The Court promotes this vision when it invokes judicial restraint to justify its refusal to second-guess the cruelty of challenged execution methods or when Justices cite federalism-based rationales for refusing to delay state enforcement of death sentences.  Even the oft-quoted refrain that “death is different” — the notion that the Court proceeds carefully to enforce the Eighth Amendment as applied to capital punishment — advances a narrative of the Court as careful, constrained, and once removed. In this telling, judicial restraint and constitutional regulation of the death penalty go hand in hand.

And yet, on the Supreme Court’s shadow docket, the Court’s death penalty jurisprudence is anything but restrained. For the last several years, the Court has regularly reversed lower court stays in a series of death cases presenting substantial issues.  While decisions addressing death penalty cases on the Court’s emergency orders docket is nothing new, the Court’s willingness to issue momentous, dispositive rulings in death cases through the shadow docket has emerged as an important feature of the Court’s constitutional regulation of the death penalty.  This Article contends that the Court’s capital shadow docket does not merely reflect changes in how the Court now approaches norms surrounding requests for emergency relief, as others have illuminated. The capital shadow docket is also a window into judicial regulation of the death penalty devoid of judicial restraint.

Major Cities Chiefs Association reporting all categories of violent crimes down in first half of 2023

As noted in this Crime and Justice News entry, "reports to police in all four major categories of violent crime declined in the first half of 2023 compared with the similar period last year in a survey answered by 69 large police departments, reports the Major Cities Chiefs Association."  Specifically, as shown in this complete midyear report, these police departments report declines in homicides, rape, robbery and aggravated assault.  (The report also shows crime increases in Canada in three of these four crimes, so something is going distinctively in the right direction in the US in 2023 (although, of course, the number of violent crimes is much greater in the US than in Canada).)

Regular readers should not be too surprised by these data, as I have been tracking encouraging 2023 US homicide data from police departments on a periodic basis (example here).  Still, it is encouraging to see another accounting of positive 2023 US crime trends, especially for a range of violent crimes.  Fingers crossed that the US can continue and build on these positive developments in the months ahead.

Noting Georgia's limits on pardon powers in wake of latest state indictment for former Prez Trump and associates

Thanks to indictment fatigue, I have not yet had much interest in trying to figure out the full sentencing exposure of former Prez Donald Trump or his many co-defendants (AP details here) in the wake of last night's nearly 100-page indictment from Fulton County.  But a quick scan of press coverage has led me to already see lots of talk about Georgia's distinctive pardon laws: 

From Insider, "Trump would have to serve 5 years in prison before he can be pardoned in Georgia criminal case, expert says"

From MSNBC, "Why Trump can’t kill Georgia charges like federal ones"

From Newser, "A Georgia Worry for Trump: Pardon-Proof Charges"

These pieces and others are understandably focused on the apparent inability under Georgia law for former Prez Trump to secure a pardon.  But I think it also notable and important that Georgia law also limits the pardon possibilities for Prez Trump's Georgia co-defendants.  As in most traditional cases, all the defendants in this new Georgia case will have to deal with the reality that only prosecutors have clear and direct authority to dole out criminal justices breaks.

"Exploring the Impact of Remorse on Recommendations for Sentencing Diversion for Defendants With Psychiatric Diagnoses"

The title of this post is the title of this new paper on SSRN authored by Colleen Berryessa.  Here is its abstract:

This study, using semi-structured interviews with a sample of probation officers (N = 151), develops a model that suggests how officers may weigh psychiatric diagnoses when assessing defendants’ expressions of remorse and how this may shape their presentencing recommendations for sentencing diversion.  Results suggest that probation officers consider psychiatric diagnoses when evaluating remorse in sentencing contexts in three main ways: (a) the extent to which psychiatric symptoms may lead defendants to have difficulties showing conventional expressions of remorse and complicate how officers understand their non-normative remorse displays; (b) how psychiatric symptoms can mitigate defendants’ emotional behaviors used to develop and “feel” remorse, particularly their blunted empathy and hindered recognition of their criminal acts; and (c) some officers make stigmatized assumptions about personal qualities of defendants diagnosed with psychiatric diagnoses, which can lead them to be critical of their remorse.  Then, drawing from views in the first two areas, officers discussed providing information on defendants’ psychiatric illnesses — and the potential impacts on their abilities to show or develop remorse — to support recommendations for sentencing diversion in presentencing reports.  Takeaways, as well as how remorse assessments may shape probation recommendations for sentencing diversion for defendants with psychiatric diagnoses, are discussed.

Interesting new resource sorting through complicated realities of "drug decriminalization"

I just came across this notable report titled "Decriminalizing Drug Possession In The US: Emerging Models & Recommendations For Policy Design And Implementation."   This document, which was produced by multiple public health scholars and was funded by Johns Hopkins Bloomberg School of Public Health, seeks to unpack and assess different approaches to drug decriminalization.  Here is its executive summary:

Amid calls to address substance use as a public health issue, jurisdictions nationwide are rethinking the paradigm of criminalization for possession of drugs other than cannabis.  While decriminalization of all drugs through official legislation (de jure) has only been enacted in Oregon, many localities are leveraging prosecutorial discretion to de facto decriminalize simple drug possession.  However, the different policy provisions and implementation experiences of de facto strategies have not yet been systematically captured.  Through key informant interviews (N=22), we describe and contrast emerging models of de facto drug decriminalization (specifically, the use of prosecutorial discretion to depenalize and/or decriminalize the possession of drugs other than cannabis) in 14 jurisdictions nationally. 

Systematic thematic analysis revealed four distinct implementation models of de facto drug decriminalization: expanded diversion, substance-specific declination, case-by-case declination, and unconditional declination. Challenges and opportunities for implementation of de facto decriminalization included data availability and quality, addressing past and non-drug charges, and stakeholder and public engagement.  Key recommendations include tailoring policies to the local context, seeking multisectoral collaboration early in implementation, establishing research and evaluation partnerships, and explicitly adopting measures to improve outcomes for racial/ethnic minority and low-income communities disproportionately affected by drug enforcement.  The use of these strategies can help reduce exposure to and disparities in the carceral system, even in the absence of formal legislation.

UPDATE: Intriguingly, less than an hour after putting up this post, I saw an intriguing new headline and story on Fox News, "Vivek Ramaswamy breaks with GOP on decriminalization of hard drugs: 'I'm in that direction'."

"140 Characters of Justice? The Promise and Perils of Using Social Media to Reveal Lay Punishment Perspectives"

The title of this post is the title of this new paper now available via SSRN authored by Itay Ravid and Rotem Dror. Here is its abstract:

For centuries now, penal theorists have engaged in heated debates about two questions at the heart of criminal legal systems: how can we justify the State’s power to punish individuals, and how can we determine what is the proper level of punishment.  To answer these questions, moral philosophers advanced conversations about several theories, which predominantly held in philosophical silos.  Over the years, calls to better understand community views regarding justifications of punishment and adopting penal law and policies that align with these views got traction, culminating in Paul Robinson’s “Empirical Desert” theory.  Despite its intuitive appeal, there have been criticism of this approach, both questioning its core hypotheses and expressing concerns about its perceived immorality.

At the same time, advancement in social-science methodology provided research tools to empirically deepen our understanding of lay people’s attitudes regarding punishment, mostly through surveys and experimental research designs.  One domain, however, remained untouched by those calling to assess lay intuitions of justice: social media. Such oversight is puzzling in light of social media’s potential to reveal public perceptions without scientific intervention.

This Article bridges this gap and engages with two main questions.  First, a methodological question: whether social media discourse can be used to reflect laypeople’s attitudes about criminal culpability and punishment, and second, a normative question: should it be used for these purposes.

To answer these questions, the Article first explores current scholarship about the promises and challenges of using social media data to study social perceptions.  The Article moves beyond theory, however, and utilizes recent technological developments in the field of Artificial Intelligence (“AI”) and Law and Natural Language Processing (“NLP”) to also explore empirically the potential promise of social media discourse in assessing community views on justice and punishment.

While the findings offer some support for the potentiality of using social media to assess laypeople’s attitudes regarding punishment, they also expose the complex challenges of utilizing such data, particularly for penal law and policy design.  First, due to a host of methodological challenges, and second, due to normative challenges, particularly social media’s polarizing nature and the ambiguity around whose voice is amplified through these platforms.

A busy week on the road justifies another round-up review of notable stories

A busy work week when I was mostly on the road meant mostly lacking time to blog about about a number of press articles and commentary that caught my eye.  So, continuing with a recent week-ending tradition, I will seek to catch up with this round up:

From the Austin Chronicle, "Texas Prisons Are Cooking People Alive. Are We Okay With That? Part 1 in a series about heat in prison"

From Fox News, "DOJ eyeing Americans ‘like ATMs,’ spending over $6 billion to aid civil asset forfeitures, watchdog says"

From The Hill, "Will mass incarceration outlive me?"

From The Hill, "By trying to get to Trump’s right on crime, DeSantis ends up in a ditch"

From The Hill, "They held him 525 days past his release. Will the courts let him fight back?"

From The Marshall Project, "These States Are Using Fetal Personhood to Put Women Behind Bars"

From Reason, "Idaho Keeps Scheduling This Inmate's Execution Even Though It Lacks the Means To Kill Him"

From the New York Times, "With an Array of Tactics, Conservatives Seek to Oust Progressive Prosecutors"

From NPR, "Prisons try to adjust as their inmate population grows older"

From the Washington Examiner, "Congress can finally support equal justice under the law"

From WBRZ (in Louisiana), "In response to governor, pardon board schedules hearings for 20 death row inmates seeking clemency"

From WESH (in Florida), "Gov. DeSantis suspends State Attorney Monique H. Worrell, citing neglect of duty"

Notable pitch to expedite federal appeals of condemned Pittsburgh synagogue shooter

This editorial from the editorial board of the Pittsburgh Post-Gazette caught my eye this past week. The piece is headlined "Expedite synagogue shooter's death penalty appeals," and here are excerpts:

Now that Pittsburgh synagogue shooter Robert Bowers has been sentenced to death, there’s no reason to further delay the administration of justice. The Department of Justice and the federal courts should take every step possible to expedite the appeals.

Further, the convicted murderer and his legal team, having failed in their desperate attempt to convince a Western Pennsylvania jury to spare him, should decline to make unnecessary appeals.  There is no question of his guilt, and the jury convincingly rejected the proposed mitigating factors, while the defendant showed no remorse.  Finally, there is no sign whatsoever of the kind of prosecutorial misconduct that would throw the conviction and sentence into doubt.  Further litigation will only waste time and money, and will further prolong the healing process for the victims’ families and community....

The robust death penalty appeals process exists to minimize the possibility of a false conviction, but in this case there is no doubt as to the defendant’s guilt.  After an exhaustive process, including weeks of testimony, a jury of his peers found him culpable. Further, the defense already pursued every possible stratagem, including causing years of delays, to avoid the death sentence.  They all failed.  Spending years relitigating these matters will not enhance the administration of justice.

Due to the Department of Justice’s decision to pursue the death penalty, followed by innumerable delay tactics by the shooter’s defense team, it has taken nearly five years to complete merely the first step in the process — conviction and sentencing.  These excruciating years have denied victims’ families and the wider community a measure of closure.  Now, the system — including the shooter’s defense team — can do right by those who carry the wounds of October 27, 2018, by expediting the appeals.

Not mentioned in this article is the fact that Attorney General Merrick Garland ordered a nationwide moratorium on federal executions that has been in place for more than two years and seems unlikely to be rescinded as long as Joe Biden is the Oval Office.  So, even if appeals were expedited for the condemned Pittsburgh synagogue shooter, it is very unlikely that he would be executed on an expeditious schedule.  Nevertheless, I think this editorial sensibly suggests that an extra "measure of closure" would come whenever standard appeals are exhausted for this condemned mass murderer even if he were not to be executed anytime soon.  And yet, even if serious efforts were made to expedite the appeals in this case, I suspect that it would likely still take many years to exhaust them.

Former federal prosecutor describes practice of "retaliation" against drug defendants who exercise trial rights

Brett Tolman, who was appointed as the US Attorney for the District of Utah in 2006 by Prez George W. Bush, has this notable recent opinion piece at Fox News headlined "I'm a former prosecutor. The 'War on Drugs' incentivizes convictions, not justice."   The whole piece merits a full read, and I found notable that this former US Attorney so readily and clearly highlights how prosecutors impose a "trial penalty" as a form of ""retaliation" for defendants who exercise their constitutional rights to trial.  Here are excerpts:

[Alice Marie Johnson's] story was first warped during her trial by prosecutors who manipulated drug laws -- not to nab a drug "queen pin," but to pin the blame on the little guy.  As a former prosecutor, I’m peeling back the curtain on this practice and setting the record straight. 

In the early 1990s, Alice was a single mother of five struggling to make ends meet while coping with the grief of losing her son. Desperate, she became a telephone mule for a drug operation.  Her role was to pass along phone numbers within the organization, but she never once touched or sold a single drug.  Alice was wrong to participate in this operation in any capacity, something that Alice herself has owned up to on many occasions.  But what happened at her trial was a miscarriage of justice.  

When Alice was arrested along with 15 others, the prosecution offered her a deal: plead guilty in exchange for three to five years in prison.  Even three years seemed too long to be away from her family, especially given her minor role in the drug operation.  So, at the urging of her attorney, Alice chose to exercise her constitutional right to a fair and impartial trial.  

What the prosecution did next can only be described as retaliation.  It brought new drug conspiracy charges against Alice that had not been considered before, accusing her of attempted possession of 106 kilograms of cocaine.  No physical evidence was ever found to support this, but physical evidence was not required at the time. Instead, to make its case, the prosecution coerced two of Alice’s co-defendants to change their testimonies in exchange for reduced sentences, pinning the blame on Alice.... 

Today, laws are on the books to prevent convictions without physical evidence.  However, mandatory minimum sentencing laws still exist, and the "trial penalty" -- the increase in sentencing for those who choose to go to trial rather than take a plea deal – is very much alive.  Alice's trial is the perfect example of how perverse incentives within the criminal justice system, spurred by the failed "War on Drugs," ruin lives and tear families apart while doing nothing to improve public safety.

Prosecutors, many of whom go into the profession to pursue the noble ideals of justice and safety, are not immune to these warped incentives that put convictions over justice.  Drug laws are easily manipulated, and low-level players like Alice are sent to prison while higher-level, more dangerous people remain on the streets.

Finding broader Eighth Amendment echoes from Fifth Circuit's ruling that lifetime felon disenfranchisement is unconstitutional

It has been quite an interesting month for interesting Fifth Circuit opinions, and I am still hoping to find some time to comment on the Circuit's split panel ruling last week in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here).  But I have already seen that folks involved with The State Law Research Initiative have shares some thoughts on the ruling having broader Eighth Amendment echoes.  This newsletter commentary highlights its themes in its full title: "How Other Cruel Punishments Could Fall After Court Strikes Down Lifetime Voting Ban: The Fifth Circuit’s Analysis Marks An Historic Moment In 8th Amendment Jurisprudence With Big Implications For Criminal Sentencing."  I recommend folks check out the full commentary (with many links), but here is how it concludes:

Just last year, the Colorado Court of Appeals considered a challenge to life without parole sentences (a particular punishment) as applied to people convicted of “felony murder” — that is, people who neither intended to nor actually killed anyone (an entire class of incarcerated people).  But the court refused to apply the categorical approach for one reason: “neither the Supreme Court nor, apparently, any other appellate court in the nation has applied the categorical analysis to cases not involving either the death penalty or juvenile offenders.”

Well, now one has.

In wresting free of “gross proportionality” in a voting rights case, the court echoed commentators who have urged courts to dump the test entirely. In the Iowa Law Review this year, Robert Smith, Emily Hughes, and Zoe Robinson argue that state supreme courts should always reject the gross proportionality test under state law, and “that the categorical ban framework is the approach that best fits with the power and responsibility of state courts interpreting their own constitution.”  Prof. William Berry has suggested that the “categorical” label is a limiting misnomer, and that similar heightened review can and should work in individual cases, even without a broader “category” of “offenders.”

But even extending the test to categorical claims beyond capital and youth cases has major implications.  In the Colorado case, for example, the reduced culpability of people who are serving life terms but did not intend to kill would be constitutionally relevant.  As would the effects of severe mental illness, intellectual disability, and past trauma — all characteristics that go to culpability and could define classes of people seeking relief from extreme punishments.  And in asking whether certain punishments serve a valid purpose, courts would have to consider the gaping racial and other disparities showing how harsh sentences are both discriminatory and arbitrary.  Any number of sentencing practices, from life without parole to “habitual offender” enhancements, once rubber stamped after cursory review, would look constitutionally suspect.

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

In a post last summer right after the Supreme Court's landmark Second Amendment ruling, I wondered "Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?".  A handful of district courts have concluded that federal law prohibiting dug possession by unlawful drug user violates the Second Amendment, and now a circuit court has joined these ranks.  Specifically, in US v. Daniels, No. 22-60596 (5th Cir. Aug. 9, 2023) (available here), a Fifth Circuit panel has decided the federal prohibition on firearm possession for “unlawful user” of a controlled substance is unconstitutional.  Here is how the opinion for the court in Daniels gets started:

Title 18 U.S.C. § 922(g)(3) bars an individual from possessing a firearm if he is an “unlawful user” of a controlled substance. Patrick Daniels is one such “unlawful user” — he admitted to smoking marihuana multiple days per month. But the government presented no evidence that he was intoxicated at the time of arrest, nor did it identify when he last had used marihuana. Still, based on his confession to regular usage, a jury convicted Daniels of violating § 922(g)(3).

The question is whether Daniels’s conviction violates his right to bear arms.  The answer depends on whether § 922(g)(3) is consistent with our nation’s “historical tradition of firearm regulation.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). It is a close and deeply challenging question.

Throughout American history, laws have regulated the combination of guns and intoxicating substances.  But at no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another.  A few states banned carrying a weapon while actively under the influence, but those statutes did not emerge until well after the Civil War.  Section 922(g)(3) — the first federal law of its kind — was not enacted until 1968, nearly two centuries after the Second Amendment was adopted.

In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage.  Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.  As applied to Daniels, then, § 922(g)(3) violates the Second Amendment.  We reverse the judgment of conviction and render a dismissal of the indictment.

"A Democratic Restraint on Incarceration"

The title of this post is the title of this notable new paper on SSRN authored by Marah Stith McLeod. Here is its abstract:

The sentencing model proposed in this Article employs the democratic voice of the jury to restrain individual injustice and mass incarceration by having the jury establish the maximum term that an individual defendant deserves and by confining judicial sentencing discretion within that upper bound.

Undeserved punishment violates a bedrock principle of justice, yet criminal defendants are often imprisoned without assurance that their deprivation of liberty and exclusion from society is deserved.  Legislatures are under powerful pressures to authorize and even mandate carceral penalties that may exceed individual culpability; prosecutors have strong cost incentives to threaten undeserved penalties in order to induce guilty pleas, and to pursue them if defendants refuse to plead guilty; and judges face like institutional pressures to sentence defendants more harshly if they insist on trial.

In a liberal democracy, the people should share responsibility for ensuring that prison sentences imposed in their name are deserved and therefore morally just.  Moreover, lay juries, who can speak for the community, are better suited to this moral task than judicial insiders or outside experts.

Juries, therefore, should decide the maximum amount of incarceration, if any, that the defendant deserves. Constrained by this jury-set maximum, the sentencing court would then select a final penalty based on statutory sentencing goals, including the utilitarian aims of deterrence, incapacitation, and rehabilitation.  No prison term could be imposed that the jury had deemed undeserved.  Even legislatively-mandated minimums should be subject to jury override in order to avoid unjust incarceration.

This proposal would operationalize a widely endorsed sentencing paradigm often called “limiting retributivism.” Blending lay normative sense and judicial expertise, this hybrid model would enable juries to perceive and prevent carceral excesses.  It would also diminish plea-bargaining injustice, for prosecutors could no longer induce guilty pleas by threatening penalties that no reasonable jury would deem deserved.

US Sentencing Commission releases more "Quick Facts" data on economic offenses

This week, the US Sentencing Commission has released another set of its "Quick Facts" publications.  Long-time readers have long heard me praise the USSC for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  Here are the latest postings by the USSC on this  "Quick Facts" page:

• Theft, Property Destruction, & Fraud (August 2023)
• Aggravated Identity Theft (August 2023)
• Bribery (August 2023)
• Counterfeiting (August 2023)
• Money Laundering (August 2023)
• Tax Fraud (August 2023)
• Health Care Fraud (August 2023)
• Government Benefits Fraud (August 2023)
• Credit Card and Other Financial Instrument Fraud (August 2023)
• Securities and Investment Fraud (August 2023)
• Organizational Offenses (August 2023)
• Robbery (August 2023)
• Escape (August 2023)

ABA resolution adopts 14 principles set forth by ABA's Plea Bargain Task Force

As reported in this article, the ABA House of Delegates on Monday passed Resolution 502 to seek to improve plea bargaining practices:

Resolution 502 adopts 14 principles that were created by the Criminal Justice Section’s Plea Bargaining Task Force, which includes a diverse group of practioners, judges, law professors, and members of think tanks and advocacy organizations.  These principles are based on testimony from criminal justice experts and people impacted by plea bargaining as well as scholarly and legal reports and state and federal rules of criminal procedure.

In February, the Plea Bargaining Task Force published the 14 principles in a report to outline how plea bargaining should operate within the larger criminal justice system.

In introducing the resolution, Lucian Dervan, co-chair of the Plea Bargaining Task Force, noted that 98% of criminal cases in federal courts end with a plea bargain. While there are some benefits to pleas, he said there also are troubling elements, including a lack of oversight, an inability of courts to interpret the law and a lack of community involvement with the larger criminal justice system.

These 14 principles will help “create a path forward toward a more transparent, fair and just system of plea bargaining,” Dervan said. “It does this by encouraging an active docket of trials, by establishing principles to prevent coercive plea bargaining and by encouraging more transparency and data collection related to plea bargaining.”

Resolution 502 passed overwhelmingly.  According to its report, the ABA can now advance the principles through collaborations with other entities and by discussing pending legislation and filing amicus briefs related to plea bargaining.

Reviewing latest data on Jan 6 riot prosecutions and sentencings

This Fox News piece, headlined "More than 1K people charged over Jan 6 riot, 366 received prison time: DOJ," summarizes some of the latest data from the US Justice Department about its prosecutions of persons involved in the storming of the US Capitol on January 6, 2021.  Here are details:

The Justice Department has charged more than 1,100 people in relation to the Jan. 6, 2021 Capitol riot, and about a third of that number were sentenced to prison time, the Biden administration announced over the weekend. The DOJ released its latest statistics about Jan. 6 on Sunday, exactly 31 months after rioters stormed the U.S. Capitol to protest former President Trump’s election loss.

Of all the charges listed, the majority of defendants – 967 – were accused of trespassing on restricted federal grounds. Just over 100 of the people in that group face additional charges for illegally entering federal grounds with a weapon.

The DOJ said 372 people were charged with "assaulting, resisting, or impeding officers or employees." Roughly a third of those were accused of using a deadly weapon against an officer or "causing serious bodily injury" to an officer. It said about 64 people have been charged with destruction of government property, and 51 were charged with theft of government property.

The DOJ said 632 people have pleaded guilty to various charges – mostly misdemeanors, although 198 have pleaded guilty to felonies. The department said 597 people have received sentences for their activities on Jan. 6, and 366 of those were sentenced to incarceration....

"Under the continued leadership of the U.S. Attorney’s Office for the District of Columbia and the FBI’s Washington Field Office, the investigation and prosecution of those responsible for the attack continues to move forward at an unprecedented speed and scale. The Department of Justice’s resolve to hold accountable those who committed crimes on January 6, 2021, has not, and will not, wane," the department said.

ABA resolution calls for adoption of prosecutor-initiated resentencing legislation

As reported in this article, the ABA House of Delegates on Monday passed Resolution 504, which "urges government bodies to adopt 'prosecutor-initiated resentencing' laws that permit courts to consider a prosecutor’s recommendation to recall and resentence an incarcerated person to a lesser sentence."  Here is more:

The Criminal Justice Section sponsored the resolution, which was overwhelmingly adopted.  Stephen Saltzburg, a section representative to the House of Delegates, reminded his colleagues that this measure follows another one that urges governments to authorize courts to hear petitions to allow de novo hearings that take a “second look” at the sentences of individuals who have been incarcerated for at least 10 years.  The House adopted that resolution at the 2022 ABA Annual Meeting.

“This says if prosecutors think 10 years is too long to wait, they ought to be able to come in and seek to reduce a sentence,” Saltzburg told the House. “That’s all this is about.”...

At last year’s annual meeting, the House also adopted the ABA Ten Principles on Reducing Mass Incarceration.  One of the principles is to implement second-look policies that require regular review and, if appropriate, reduce lengthy sentences.

The ABA's 15-page resolution and report on prosecutor-initiated resentencing is available at this link.

How many of the "171 Easy Mitigating Factors" might former Prez Trump argue at a federal sentencing?

Some recent posts related to former Prez Trump's legal woes are generating lots of comments; in one thread, one comment stated that it is "probably malpractice for a defense lawyer not to have" the legendary sentencing resource "171 Easy Mitigating Factors (and Counting): Cases Granting, Affirming, Or Suggesting Mitigating Factors."   That resource, authored by Michael R. Levine, provides cites to hundreds of federal precedents suggesting a wide array of grounds for mitigating a sentence.  I share the view that any competent federal defense attorney should be using this resource at sentencing (and I have uploaded below the Table of Contents, which includes contact information for the author for those seeking to purchase the full text).

In part because all federal defendants should receive competent representation, I hope former Prez Trump's lawyers in both of his federal criminal cases make sure they have a copy of "171 Easy Mitigating Factors."  And, in putting this post together, I got to thinking about the question in the title of this post.  From a quick scan of the TOC of "171 Easy Mitigating Factors," I came to the view that quite a significant number of these factors might be potentially applicable in former Prez Trump's case if he ever actually faces a federal sentencing.  Also, I got a a bit of chuckle over how certain "Mitigating Factors" read in light of the Trump prosecutions: might his lawyers someday argue for mitigation because, eg, "defendant is a law abiding citizen who 'just did a dumb thing'" or "prosecutor’s manipulation of the charges, even if no bad faith" or "defendant is older or elderly and presents less risk of recidivism"?

Though a bit tongue-in-check, I do mean for this post to flag the important reality that former Prez Trump is sure to have lots of significant mitigating arguments to seek to avoid a lengthy prison term (or any prison term) if he is ultimately convicted on any federal charges.  Of course, there is a long (and winding?) legal road ahead before any sentencing particulars are to be front and center in his cases.  But, even though former Prez Trump is likely one of the rare federal defendants unlikely now to consider any plea deal, it still seems important to note now that his defense attorneys have a reasonable basis to advise the former President that they would have lots of viable mitigating sentencing arguments to make even if he is convicted after a trial.

Download TOC for 171 EASY MITIGATING FACTORS (AUGUST 1 2023)

Some prior related posts:

• Is it too early to try to calculate former Prez Trump's possible federal sentencing guideline range? 
• Notable general and specific accountings of former Prez Trump's federal sentencing prospects
• Noticing one count in the latest federal indictment of former Prez Donald Trump could carry the death penalty 
• After another federal indictment, another set of federal sentencing issues for former Prez Trump

Split Fifth Circuit panel rules that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment

This past Friday, a split panel of the Fifth Circuit handed down a remarkable ruling in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here). Here are excerpts from the start and conclusion of the 50-page majority opinion:

In this class action, Plaintiffs, representing persons who have been convicted of certain crimes and have completed the terms of their sentences, challenge their disenfranchisement by two provisions of Article XII of the Mississippi Constitution of 1890....

For the reasons explained below, we hold that Plaintiffs are entitled to prevail on their claim that, as applied to their class, disenfranchisement for life under Section 241 is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment.  In the last fifty years, a national consensus has emerged among the state legislatures against permanently disenfranchising those who have satisfied their judicially imposed sentences and thus repaid their debts to society.  Today, thirty-five states plus the District of Columbia disavow the practice embodied in Section 241, a supermajority whose size is dispositive under controlling Supreme Court precedent.  Mississippi stands as an outlier among its sister states, bucking a clear and consistent trend in our Nation against permanent disenfranchisement.  And in our independent judgment — a judgment under the Eighth Amendment that the Supreme Court requires we make — Section 241’s permanent disenfranchisement serves no legitimate penological purpose.  By severing former offenders from the body politic forever, Section 241 ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society.  It is thus a cruel and unusual punishment....

“No right is more precious in a free country” than the right to vote.  Wesberry v. Sanders, 376 U.S. 1, 17 (1964). “Other rights, even the most basic, are illusory if the right to vote is undermined.” Id.  This right is not only fundamental to the democratic ordering of our society, it is also expressive of the dignity of American citizenship — that each person is an equal participant in charting our nation’s course. Reynolds, 377 U.S. at 533; Bush v. Gore, 531 U.S. 98, 104 (2000) (“[O]ne source of [the right to vote’s] fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.”).

Mississippi denies this precious right to a large class of its citizens, automatically, mechanically, and with no thought given to whether it is proportionate as punishment for an amorphous and partial list of crimes.  In so excluding former offenders from a basic aspect of democratic life, often long after their sentences have been served, Mississippi inflicts a disproportionate punishment that has been rejected by a majority of the states and, in the independent judgment of this court informed by our precedents, is at odds with society’s evolving standards of decency.  Section 241 therefore exacts a cruel and unusual punishment on Plaintiffs.  Accordingly, we REVERSE the district court’s grant of summary judgment to the Secretary on Plaintiffs’ Eighth Amendment claim and RENDER judgment for Plaintiffs on that claim.

Judge Edith Jones authored a dissent, and here are excerpts from the start and conclusion of her 15-page majority opinion:

Laws like this one have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection Clause does not bar states from permanently disenfranchising felons, it dispensed some advice to the losing parties [that stated roughly]: go and convince the state legislatures. Do the hard work of persuading your fellow citizens that the law should change.

Today, the court turns that advice on its head.  No need to change the law through a laborious political process.  The court will do it for you, so long as you rely on the Due Process Clause, rather than the Equal Protection Clause.  With respect, this is not a road that the Constitution — or precedent — allows us to travel. I dissent....

Today’s ruling disregards text, precedent, and common sense to secure its preferred outcome. This end-justifies-means analysis has no place in constitutional law. I respectfully dissent.

These opinions are certainly not the last words on this matter.  This Washington Post article about the ruling reports that Mississippi is sure to appeal this ruling: "Mississippi 'expects to seek further review,' wrote Debbee Hancock, a spokeswoman for Mississippi Attorney General Lynn Fitch."

I suspect "further review" will first focus on seeking en banc consideration of this matter from the full Fifth Circuit.  But maybe Mississippi will seek to go directly to the Supreme Court for review.  For a variety of reasons, I am inclined to guess that neither the full Fifth Circuit nor the Supreme Court will find the majority opinion here compelling.