Sentencing Law and Policy

US Justice Department issues "Interim Policy Changes Regarding Charging, Sentencing, And Immigration Enforcement"

Reported today in Politico and the Washington Post and other outlets is this notable new memo (dated January 21, 2025) from the Department of Justice titled "Interim Policy Changes Regarding Charging, Sentencing, And Immigration Enforcement."  The press pieces highlight the extentive discussion of immigration enforcement in this three-page memo, but sentencing fans will seurely be interested in the memo's first section:

I. Core Principle: Pursuing The Most Serious, Readily Provable Offense

Interim changes to the Justice Department's policy regarding charging and sentencing arenecessary in order to implement policies articulated in President Trump's January 20, 2025 Executive Orders relating to the elimination of Cartels and other Transnational Criminal Organizations, and securing our borders against illegal immigration and drug trafficking.  Therefore, effective today, the Justice Department's interim policy regarding charging and sentencing is set forth in the May 10, 2017 Memorandum entitled, “Department Charging andSentencing Policy,” which applies to all charging decisions at the Department of Justice and theUS. Attomey’s Offices. Any inconsistent previous policy of the Department of Justice relatingto charging and sentencing policy is rescinded, effective today.

Specifically, in the absence of unusual facts, prosecutorial discretion at the Department ofJustice and the U.S. Attorneys Offices is bounded by the core principle that prosecutors should charge and pursue the most serious, readily provable offenses.  The most serious offenses are: those punishable by death where applicable, and offenses with the most significant mandatory‘minimum sentences (including under the Armed Career Criminal Act and 21 U.S.C. § 851) and the most substantial recommendation under the Sentencing Guidelines.

Each United States Attorney and Assistant Attomey General is responsible for ensuring that this interim policy is implemented and followed.  Any deviations from the interim policy's core principle require significant extenuating circumstances, shall be carefully considered, and‘must be approved consistent with the process described in the May 10, 2017 Memorandum.

Folks who follow DOJ charging policies though the years know that this guidence returns to the DOJ norms in all recent Republican administrations.  During the Obama and Biden Administration, these policies formally afforded federal prosecutors more discretion in various ways, though in charging and sentencing practices often are influenced by local US Attorney Offices and local realities within the shadow of the general guidance provided by Main Justice.

SCOTUS issues another notable 7-2 per curiam procedural reversal in a capital habeas case

The first "opinion" of the current Supreme Court Term was handed down as a curious little per curiam ruling in Hamm v. Smith after a recond number of relists.  As dicussed in this post from early November 2024, the Court by a 7-2 voted GVRed a capital case conderning issues of intellectual disability (with Justices Thomas and Gorsuch indictating they would have granted cert to hear the case on the merits).  And thanks to this new ruling today from the court in Andrew v. White, this per curiam ruling in favor of a capital defendant's cert petition no longer standar alone.   Here is how today's ruling starts:

An Oklahoma jury convicted Brenda Andrew of murdering her husband, Rob Andrew, and sentenced her to death.  The State spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant.  In a federal habeas petition, Andrew argued that this evidence had been so prejudicial as to violate the Due Process Clause.  The Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process.  That was wrong.  By the time of Andrew’s trial, this Court had made clear that when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Payne v. Tennessee, 501 U.S. 808, 825 (1991).

Intriguingly, Justice Alito concurs via an opinion of just one paragraph:

I concur in the judgment because our case law establishes that a defendant’s due-process rights can be violated when the properly admitted evidence at trial is overwhelmed by a flood of irrelevant and highly prejudicial evidence that renders the trial fundamentally unfair. See Payne v. Tennessee, 501 U.S. 808, 825 (1991); Romano v. Oklahoma, 512 U.S. 1, 12 (1994); cf. Rideau v. Louisiana, 373 U.S. 723, 726 (1963).  I express no view on whether that very high standard is met here.

JusticeThomas, joined by Justice Gorsuch, dissents in an opinion that, at 18 pages, runes eight pages longer than the Court's per curiam opinion. Here is how the dissent begins:

Our precedent under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes several rules for identifying clearly established federal law. 28 U.S.C. §2254(d)(1). We have instructed lower courts to avoid framing our precedents at too high a level of generality; to carefully distinguish holdings from dicta; and to refrain from treating reserved questions as though they have already been answered. The Tenth Circuit followed these rules.  The Court today does not. Instead, it summarily vacates the opinion below for failing to elevate to “clearly established” law the broadest possible interpretation of a onesentence aside in Payne v. Tennessee, 501 U.S. 808 (1991). In doing so, the Court blows past Estelle v. McGuire, 502 U.S. 62 (1991), which, months after Payne, reserved the very question that the Court says Payne resolved.  And, worst of all, it redefines “clearly established” law to include debatable interpretations of our precedent.  It is this Court, and not the Tenth Circuit, that has deviated from settled law.  I respectfully dissent.

Prez Trump issues executive order on "restoring the death penalty and protecting public saftety"

As well summarized in this AP article, "President Donald Trump signed a sweeping execution order Monday on the death penalty."  Here is more:

Trump’s order, coming just hours after he returned to the White House, compels the Justice Department to not only seek the death penalty in appropriate federal cases but also to help preserve capital punishment in states that have struggled to maintain adequate supplies of lethal injection drugs.

Trump had been expected to restart federal executions, which have been on hold since a moratorium was imposed by former Attorney General Merrick Garland in 2021. Only three defendants remain on federal death row after Democratic President Joe Biden recently converted 37 of their sentences to life in prison.

Trump directed the attorney general to pursue federal jurisdiction and seek the death penalty “regardless of other factors” when the case involves the killing of a law enforcement officer or capital crimes “committed by an alien illegally present in this country.” He’s also instructing the attorney general to seek to overrule Supreme Court precedents that “limit the authority of limit the authority of State and Federal governments to impose capital punishment.”

“The Government’s most solemn responsibility is to protect its citizens from abhorrent acts, and my Administration will not tolerate efforts to stymie and eviscerate the laws that authorize capital punishment against those who commit horrible acts of violence against American citizens,” Trump’s order said.

The fascinating full executive order, which has lots and lots of intriguing elements, can be found at this link.  Because I am on the road and still celebrating a recent ballgame, I may need a few days for further commentary on what this order might mean and how it could echo through the work of the Justice Department.  But, for now, I think it worth noting that federal capital prosecutors and feeral capital defense lawyers may be in a much different world this week than they were last week (and which was an even different world last month).

Given latest SCOTUS review of civil proof burdens, still wondering about criminal sentence increase standards

The Supreme Court unanimously ruled yesterday in E.M.D. Sales, Inc. v. Carrera, No. 23-217(S. Ct. Jan. 15, 2025) (available here), that a showing under the Fair Labor Standards Act calls for the "usual standard of proof in civil litigation [of] preponderance of the evidence [rather than a] more demanding standard, such as clear and convincing evidence."  The opinion is not surprising, but still struck me as notable in how the Court discusses its precedents sometimes calling for a "more demanding standard" is to be applied in some civil litigation:

Second, courts likewise must apply a heightened standard of proof when the Constitution requires one . For example, the Court has mandated a clear-and-convincingevidence standard in certain First Amendment cases.  See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 285– 286 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974).  The Court has also held that the Due Process Clause necessitates a heightened standard in some cases.  In Addington v. Texas, for example, the Court ruled that involuntary civil commitment constitutes such a “significant deprivation of liberty” by the government that “due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” 441 U.S. 418, 425–427 (1979).  And in Santosky v. Kramer, the Court held the same with respect to the government’s termination of parental rights: “Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.” 455 U.S. 745, 747–748 (1982).

Third, under this Court’s precedents, a heightened standard of proof may be appropriate in certain other “uncommon” cases.  Price Waterhouse v. Hopkins, 490 U.S. 228, 253 (1989) (plurality opinion).  These cases “ordinarily” arise “when the government seeks to take unusual coercive action — action more dramatic than entering an award of money damages or other conventional relief — against an individual.” Ibid.  For example, the Court has held that the government must satisfy a clear-and-convincing-evidence standard in order to take away a person’s citizenship.  See Nishikawa v. Dulles, 356 U.S. 129, 137–138 (1958) (expatriation); Schneiderman v. United States, 320 U.S. 118, 122–123 (1943) (denaturalization).

This latest SCOTUS discussion is clearly just about civil matters, where we generally assume procedural protections are to be less rigorous for litigants than when the government is seeking to impose criminal sancations.  And yet, as sentencing fans know, the burden of proof at sentencing is just the civil floor of preponderance of the evidence.  Even though federal guideline sentencing findings can often be the basis to increase federal prison terms by years or even decades, and even though extended imprisonment surely involves a "a significant deprivation of liberty" and a "dramatic" form "coercive action" by the government," the Supreme Court has left in place precedents that there is no heightened standard of proof (or really just the traditional criminal standard) at sentencing.  Sigh.

Sleeper or dud? False or misleading? More questions than answers in SCOTUS argument over federal false statement law

The Supreme Court heard oral argument today in Thompson v. US, which has the potential to be a major white-collar criminal case because it could narow (or expand) how federal criminal law defines a "false statement."  But this review of this oral argument at SCOTUSblog by Amy Howe suggest what and how the Court might rule is quite uncertain.  I recommend the full review, and here is how it starts:

The Supreme Court on Tuesday grappled with the case of Patrick Daley Thompson, a former Chicago alderman and member of Chicago’s most storied political dynasty. Thompson served four months in a federal prison for making false statements to bank regulators about loans he took out and did not repay. He contends that the federal law under which he was convicted does not apply to statements -- like his -- that are misleading but not false. But after just over 75 minutes of oral arguments, it wasn’t clear whether the justices would actually decide that legal question, or whether a majority of the justices believed that a ruling on that question would even help Thompson.

Interesting accounting of "6 areas of uncertainty" regarding Jan 6 clemency plans

The day after Donald Trump was elected to serve a second term in the Oval Office, I asked in this post "How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?".  Though a number of press outlets have started focusing on this notable clemency question (round up here, this new Politico piece is among the most interesting of the genre.  The extended piece is headlined "Puzzling over Jan. 6 pardons: 6 areas of uncertainty in Trump’s clemency plans," and here are excepts from the start of the piece and its headings:

Since winning the election, President-elect Donald Trump has avoided providing specifics about his promise to pardon Jan. 6 defendants. And it’s led to rampant speculation — especially among the 1,600 defendants who have been prosecuted for their role in the Capitol riot — about just how far he’s willing to go.

Vice President-elect JD Vance supercharged their angst Sunday when he said violent Jan. 6 defendants “obviously” shouldn’t be pardoned, but quickly elaborated after Trump’s MAGA allies lit him up. Vance then laid out some additional clemency criteria that are tricky to parse.

A week before Trump takes power, here are six big questions about Trump’s clemency plan:

Will Trump blanket pardon all Jan. 6 misdemeanor defendants?...

Will Trump pardon people who committed assault? What about other felonies?...

What Does Vance mean by a “garbage trial?”...

What happens to leaders of the Proud Boys and Oath Keepers?...

How will Trump’s DOJ handle ongoing Jan. 6 cases?...

What does Pam Bondi tell the Senate?

I think these good questions are only part of what is likley to be a long-running story regarding how Donald Trump uses his clemency powers in his second time in the oval office.  And, as is always true when it comes to the use of this authority, a whole lot of lives hang in the balance. 

A few of many recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants 
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Prez-Elect Trump reiterates pledge to grant Jan 6 pardons on "first day" in office
• Lots of January 6th discussions of possible Trump pardons of Jan 6 defendants 
• Recording of DEPC panel on "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

Justices in their usual (but still somewhat unpredicatable) roles as they consider 924(c) resentencing in Hewitt

The Supreme Court heard oral argument in Hewitt (et al.) v. U.S. to consider this formal question: "Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the FSA’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the FSA’s enactment."  In this substack essay last week, titled "Liberty’s absence in jurisprudence and practice regarding extreme prison sentences," I lamented that the briefing in this Hewitt case was "devoted to parsing the words 'sentence' and 'imposed' and debating statutory syntax rather than engag[ing] with liberty as a fundamental value or with limits on the state’s power to punish extremely."  Perhaps unsurpringly, as folks can hear/read here from the Supreme Court website, this morning's oral argument reflected the same deficiencies.

This Bloomberg Law piece reporting on the argument highlights that the Court did not readily signal where it might be headed.  Here are excerpts:

US Supreme Court justices struggled with how broadly to read a federal law meant to reduce harsh criminal sentences, with one saying the case was “really close.”

The question at the heart of arguments on Monday was whether the First Step Act’s reduced mandatory minimums apply to defendants originally sentenced before the law was enacted but later had the punishment vacated, or only to those who’ve never been sentenced. The answer turns on the meaning of “imposed,” as the law applies retroactively to those who committed a crime before it came into force in 2018 but who haven’t yet been sentenced.

Justice Sonia Sotomayor said the term “imposed” is ambiguous because it can mean either a “historical act,” meaning whether a sentence was ever imposed, or a “continuing application,” meaning that a valid sentence is in place. Because of that, the court should consider the context in which the law was passed, Sotomayor said. She said it was clearly meant to help defendants who faced what Congress saw as unfair sentencing.

But Justice Brett Kavanaugh said context doesn’t resolve the case. Congress wanted to apply the reduced sentences retroactively, but there was a limit because lawmakers didn’t open it up to everyone, Kavanaugh said. “I think this is a really close case,” he said.

The case is likely to affect a small number of defendants but it will be critical for those to whom it applies.

Based on a (too) quick read of the transcript, I sense the defendants can reasonably expect to get four votes (Justices Sotomayor, Kagan, Gorsuch and Jackson), but it is not clear that any other Justice will provide the key fifth vote.  If the rule of lenity had any real force in statutory interpretation, this ought to be a fairly easy case.  But. notably, it was barely mentioned in the oral argument.  It was mentioned that perhaps only a few dozen defendants will be impacted by this case; there is a lot of prison time at stake for a few, but this ruling seems unlikley to impact any other no matter who prevails.

"Booker at 20": reflections on the impact and import of plea agreements

As set out in this prior post, I have started a series of posts here on the topic of "Booker at 20," partially in conjunction with a forthcoming issue of the Federal Sentencing Reporter on the topic.  A few FSR authors for that issue have allowed me to post here some modified excerpts from their forthcoming articles, and today's entry (on Booker's actual 20th anniversary) comes from Sam Merchant: 

For understandable reasons, Booker was expected to expand judicial discretion at sentencing.  But around 98% of federal criminal cases are resolved through guilty pleas, and around 71% of those involve written plea agreements. These agreements often dictate sentencing outcomes, raising questions about the true extent of judicial discretion.

Despite their ubiquity, most plea agreements remain opaque to outside observers.  The U.S. Sentencing Commission collects data on the reasons that judges deviate from guideline ranges but it does not systematically collect that information for sentences within guideline ranges (where plea agreements frequently play a decisive role).  As long as the parties can confabulate a sentence that fits within a guideline range, the true reasons for the sentence may be forever obscured. 

This is a potential problem, particularly in cases I’ve studied involving “fictional pleas” or “hidden departures,” where the plea and guideline range don’t match the real offense conduct.  I and others have identified this in around a third of federal cases (conservatively).  While I’m not necessarily against the practice, it does undermine the stated goals of uniformity and transparency.  (Of course, these might not actually be desirable goals, but they are included in Congress’s stated goals.)  And when parties withhold information from judges, it directly challenges the traditional story about the extent of post-Booker judicial discretion.  The system we’ve created gives sentences the appearance of being guided by Article I and Article III, when in reality, the influence of Article II is underappreciated.  Post-Booker, there is a sense that “sentencing is for judges, so if a judge imposed the sentence, I’m sure everything is fine.”

There is probably little interest in changing the framework of fictions we’ve created.  Members of Congress can continue appearing “tough on crime,” knowing that their laws will be (inconsistently) circumvented.  Prosecutors can threaten astronomical but ultimately fictional criminal exposure to induce pleas.  Defendants plead guilty for less than that fictional exposure, often for conduct they didn’t actually commit.  Busy judges accept those pleas.  The significant investment required to reform the system and hold more trials is almost certainly politically untenable.  So the system prioritizes efficiency over truth and fairness.  The system churns on — efficient, opaque, and quietly complicit in its own contradictions, perpetuating a framework of fictions that seems to primarily serve the designers and operators.

Brown paper bags come to mind. In the 1950s and 1960s, most American city councils passed laws that prohibited the consumption of alcohol in public places.  Police lacked the capacity to prosecute every offender, but ignoring obvious violations would foster disrespect for the law.  In an act of “ghetto diplomacy,” consumers began putting paper bags over their beverages.  Police then had the discretion to look the other way and focus resources on more serious crimes. Passersby had plausible deniability — maybe there isn’t really an alcoholic beverage inside that bag? City leaders could take the win for cleaning up the streets, at least well enough for government work.

Just as the participants agreed and society accepted the bag as a willful delusion, the criminal system gives us plausible deniability about how “justice” is administered.  The participants do what they can to keep cases moving, and enough members of the public don’t want to know or simply don’t care what’s inside. Perhaps it’s not justice the public seeks, but the illusion of it, wrapped in systems that give us permission to look the other way.

Prior post in this series:

• "Booker at 20": introducing a coming series of posts (and more)
• "Booker at 20": has much really changed in federal sentencing? 

"New Acquitted Conduct Guideline: An Analysis"

The title of this post is the title of this recent New York Law Journal essay by Paul Shechtman. The piece merits a full read, as it highlights recent developments on acquitted conduct sentencing and various aspects of the new guideline.  The closing paragraphs highlight some themes:

May a judge consider acquitted conduct in deciding where within the guideline range a defendant should be sentenced? May she vary upward from the guideline range based on acquitted conduct?  In neither instance is the judge including acquitted conduct in calculating relevant conduct, but an affirmative answer to these questions would end run the amendment.

Notably, along with the amendment to §1B1.3, the Commission amended §6A1.3 to reiterate that “nothing in the Guidelines Manual abrogates a court’s authority under 18 U.S.C. §3661.”  That section states that “[n]o limitation may be placed on information…a court…may receive and consider for the purpose of imposing an appropriate sentence.”

If ever a Sentencing Guideline amendment is well intentioned but perplexing, the acquitted conduct amendment may be it.  Its saving grace may be that in fiscal year 2022, of the 62,529 sentenced individuals, 1,613 were sentenced after trial (2.5%) and, of those, only 286 (.04% of all sentenced defendants) were acquitted of one or more offense or found guilty of only a lesser-included offense.  Thus, the potential issues are nettlesome, but won’t arise often.

The process is the punishment: Donald Trump receives sentence of "unconditional discharge" in New York state prosecution

I have just finished listening to today's hearing as part of the state court sentencing in Trump v. New York, at the end of which he received the expected sentence of "unconditional discharge."  The event was full of interesting elements and ironies (eg, Trump was given the sentence recommended by prosecution, and now can move forward with appeals).   If time and energy permits in the coming weeks, I may turn to the Sentencing Matters Substack for some longer commentary/reflection on this historic event. 

For now, I am just going to note that sentence imposed got me thinking about the title of a famous 1979 criminal justice book by Malcolm Feeley, "The Process is the Punishment: Handling Cases in a Lower Criminal Court."  One big theme of the book, as put in this linked summary, is that "the real costs to those accused of misdemeanors and lesser felonies are not the fines and prison sentences meted out by the court, but the costs incurred before the case even comes before the judge."  That theme came to mind when Trump began his statement to the court today by stating "This has been a very terrible experience."  I suspect that statement resonates with so many criminal defendants and their friends and family, and maybe even more than a few judges and prosecutors.   

Voting 5-4, Supreme Court denies Donald Trump's motion to stay his New York state sentencing

Via this order, the Supreme Court this afternoon turned back Prez-Elect Donald Trump's motion to stay his state court sentencing in Trump v. New York.  The Court was divided 5-4, and her is the full order:

The application for stay presented to Justice Sotomayor and by her referred to the Court is denied for, inter alia, the following reasons.  First, the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal.  Second, the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of “unconditional discharge” after a brief virtual hearing.

Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.

"Unlocking State Punishment Clauses"

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

The United States Supreme Court has applied the Eighth Amendment in two ways with respect to criminal sentencing. It uses the “evolving standards of decency” doctrine for capital and juvenile life without parole cases.  And it uses the “gross disproportionality” test for all non-capital cases.  Almost every state has its own punishment clause, an analogue to the Eighth Amendment.  The language in most of these punishment clauses is similar to the Eighth Amendment.  The result is that many states have “lock-stepped” their interpretation of the state constitution with the Supreme Court’s interpretation of the Eighth Amendment.

As scholars and jurists have long noted, lock-stepping state constitutional provisions with federal constitutional provisions constitutes a flawed and problematic interpretive approach.  Lock-stepping substitutes the Supreme Court’s interpretation of the federal constitution for the state court’s reading of its own constitution.  It disregards the will of state citizens in passing their own constitution, contravenes states’ rights, and ignores important differences in text, context, and history of state constitutional provisions.

Some states have taken note and elected to interpret their state constitutions independently of the federal constitution.  Even so, where state supreme courts say that their punishment have separate meanings from the Eighth Amendment, their analysis largely mirrors aspects of one or both of the Court’s two doctrines.  So even states that explicitly do not lock-step with the Eighth Amendment nonetheless engage in a sort of analytical lock-stepping by relying largely on Eighth Amendment doctrines.  The courts engage in such approaches despite a long and well-developed literature criticizing Eighth Amendment doctrines from many different directions.

The goal of this symposium article is to unlock these punishment clauses from Eighth Amendment doctrine.  State punishment clauses have distinct meanings, meanings which may depart far from Eighth Amendment doctrine.  And even if a state court chooses to stay within the confines of the principles of the Eighth Amendment doctrine, the application of these principles can arguably be quite different in the context of a state as opposed to an entire nation.

As such, this Article creates a taxonomy of possible interpretations of state punishment clauses.  Specifically, it explores what the language of “cruel,” “and,” “unusual,” and “punishment” might mean.  This analysis gives rise to a number of doctrinal interpretations state courts might choose to adopt, particularly in light of the textual, contextual, and historical anomalies of their particular state.

Part I of the Article briefly describes the Court’s application of the Eighth Amendment.  Part II provides a brief survey of state punishment clauses.  In Part III, the Article explains why lock-stepping is problematic.  And in Part IV, the article “unlocks” state punishment clauses by providing a taxonomy of possible approaches state courts can adopt in reading and applying their state constitutions.

"Grasping the Third Rail: Restorative Justice and Violent Crime"

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

Restorative justice is a means of responding to harm — including criminal offenses — through active accountability and repair, rather than through passive punishment and isolation.  While restorative justice has demonstrated potential to meaningfully improve processes and outcomes for individuals and communities, the implementation of restorative justice programs to address crime — both within and alongside the American criminal system — has been slow, limited, and misplaced.  Programs are often directed at low‑level, nonviolent offenses that involve little if any cognizable harm.  This approach creates two problems.  One, it risks net‑widening: bringing more citizens under criminal surveillance and carceral control for minor offenses — further diluting the constitutional and procedural protections already watered‑down in our misdemeanor courts.  Two, it ignores the research showing that restorative justice is more necessary and more effective in cases where serious harm has occurred.

As restorative justice offerings across the country expand, legislators and prosecutors continue to exclude crimes of violence, particularly domestic and intimate partner violence and sexual offenses, from their initiatives.  These offenses have become the “third rails” of restorative justice.  Yet it is precisely in these cases that conventional criminal system responses are failing.  It is also in these cases that restorative justice has the greatest potential to meet the needs of involved parties and reduce rates of reoffending.  So why are they considered off‑limits?  This is partly due to pervasive misunderstandings and misconceptions of what restorative justice is and how it operates, both in theory and in practice.

It is time to grasp restorative justice’s third rail: to reconsider how and where it is being used in the criminal system and explore what restorative justice could offer in the pursuit of more effective and equitable responses to violent crime.

Two federal death row inmates seeking to reject Biden's commutation as they press innocence claims

As reported in this notable new NBC News piece,  "[t]wo prisoners who are among the 37 federal inmates whose death sentences were commuted last month by President Joe Biden — a move that spares them from the death chamber — have taken an unusual stance: They're refusing to sign paperwork accepting his clemency action."  Here is more:

Shannon Agofsky and Len Davis, both inmates at the U.S. Penitentiary in Terre Haute, Indiana, filed emergency motions in federal court in the state's southern district on Dec. 30 seeking an injunction to block having their death sentences commuted to life in prison without parole. The men believe that having their sentences commuted would put them at a legal disadvantage as they seek to appeal their cases based on claims of innocence.....

"To commute his sentence now, while the defendant has active litigation in court, is to strip him of the protection of heightened scrutiny. This constitutes an undue burden, and leaves the defendant in a position of fundamental unfairness, which would decimate his pending appellate procedures,” according to Agofsky's filing.

Davis wrote in his filing that he "has always maintained that having a death sentence would draw attention to the overwhelming misconduct" he alleges against the Justice Department. He also wrote that he "thanks court for its prompt attention to this fast-moving constitutional conundrum. The case law on this issue is quite murky."

But inmates face a daunting challenge in having their death sentences restored, said Dan Kobil, a professor of constitutional law at Capital University Law School in Columbus, Ohio, who has represented defendants in death penalty and clemency cases.  A 1927 U.S. Supreme Court ruling, for example, maintains that a president has the power to grant reprieves and pardons, and "the convict's consent is not required."...

In his filing seeking an injunction for Biden's commutation, Agofsky, 53, said that he is disputing how he was charged with murder in the stomping death and that he is also trying to "establish his innocence in the original case for which he was incarcerated."...  Davis, 60, "has always maintained his innocence and argued that federal court had no jurisdiction to try him for civil rights offenses," his filing says.  Both Davis and Agofsky are asking a judge to appoint a co-counsel in their requests for an injunction of the commutations.

If nothing else, these efforts to refuse a capital commutation seem likely to help ensure these defendants get more attention for their claims of innocence than many others.  And I have often asserted to students in my sentencing classes that convicted murderers claiming to be wrongfully convicted on death row are likely to get more attention for their claims of innocence than convicted murderers given LWOP.  These two defendants certainly seem to agree with this assertion.

Lots of January 6th discussions of possible Trump pardons of Jan 6 defendants

The day after Donald Trump was elected to serve a second term in the Oval Office, I asked in this post "How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?".  Perhaps unsurprisingly, a lot of press outlets are focusing on this notable clemency question on January 6, 2025.  Here is just a partial round-up of new pieces on this front:

From the AP, "Lawmakers brace for Trump’s promised Jan. 6 pardons. Some are urging restraint"

From CBS News, "4 years after Capitol attack, Jan. 6 cases hang in the balance with Trump pardons on the horizon"

From The Guardian, "Trump promised pardons for January 6 rioters in ‘first hour’ of his second term. What might this mean?"

From USA Today, "Will Donald Trump pardon January 6 Capitol rioters? Here's what he has said"

From the Wall Street Journal, "Trump’s Pardon Promise for Jan. 6 Rioters: Does it include the ex-meth trafficker who brought a metal baton and swung it at police?"

From the Washington Post, "The fate of nearly 1,600 Jan. 6 defendants depends on Donald Trump"

With exactly two weeks to go before Inauguration Day, I am wondering if January 20, 2025 might prove historic with two presidents granting clemency on that day.  I am certainly expecting incoming Prez Trump to use his clemency power on first first day back in office, and Prez Biden might be reasonably expected to make use of his clemency power on his last day in office.  Interesting times. 

A few of many recent related posts:

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

Previewing SCOTUS oral argument in Hewitt with a liberty lament

Next Monday, the Supreme Court will hear oral argument in Hewitt (et al.) v. U.S. to consider this formal question presented:

Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the FSA’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the FSA’s enactment.

After reviewing the briefs submitted to SCOTUS, I put together this substack essay titled "Liberty’s absence in jurisprudence and practice regarding extreme prison sentences." As the title suggestion, the extended essay is mostly about what strikes me as mostly missing in the briefs, and here is how the essay starts and ends:

Our nation has long valorized liberty. The Declaration of Independence champions “life, liberty and the pursuit of happiness." The U.S. Constitution’s preamble declares that the document seeks to "secure the Blessings of Liberty to ourselves and our Posterity." President Abraham Lincoln’s Gettysburg Address describes the United States a nation "conceived in liberty." And yet our historic commitment to the concept of liberty does not always find expression in our sentencing systems. My review of briefs filed in a pending Supreme Court case prompts me to grouse here about an example of liberty’s conspicuous absence in our sentencing jurisprudence and practices....

 I will close this discussion by lamenting a particular missing argument in Hewitt briefs. The Supreme Court stated in Graham v. Florida that a “sentence lacking any legitimate penological justification is by its nature disproportionate to the offense” and thus violative of the Eighth Amendment.  The chief dissent in Graham, while disputing whether Florida’s use of life sentences for juveniles advanced goals like deterrence and incapacitation, did not take issue with the majority’s assertion that wholly pointless punishment would be constitutionally problematic. In turn, given that it seems entirely pointless, as well as ridiculous, to reimpose multi-century (and congressionally repudiated) prison terms on defendants like Corey Duffey, Tony Hewitt and Jarvis Ross, I am troubled the Hewitt briefs do not raise any constitutional clams based in the Eighth Amendment or even the statutory argument of constitutional doubt. Again, given modern practices and jurisprudence, I am not actually surprised that a case about decades, even centuries, of imprisonment do not engender robust constitutional arguments. But, as I see it, this reflects problems with our modern practice rather than with our founding constitutional commitments.

Check out the whole essay here and lots of other great content at the Sentencing Matters Substack.

Judge Merchan upholds Donand Trump's NY state convictions, suggests he will impose sentence of "unconditional discharge" next week

As reported in this AP piece, "a judge Friday set President-elect Donald Trump’s sentencing in his hush money criminal case for Jan. 10 — little over a week before he’s due to return to the White House — but indicated he wouldn’t be jailed." Here is more:

Manhattan Judge Juan M. Merchan, who presided over Trump’s trial, signaled in a written decision that he’d sentence the former and future president to what’s known as an unconditional discharge, in which a conviction stands but the case is closed without jail time, a fine or probation. Trump can appear virtually for sentencing, if he chooses.

Rejecting Trump’s push to dismiss the verdict and throw out the case on presidential immunity grounds and because of his impending second term, Merchan wrote that only “bringing finality to this matter” would serve the interests of justice.

He said he sought to balance Trump’s ability to govern, “unencumbered” by the case, against other interests: the U.S. Supreme Court’s July ruling on presidential immunity and the public’s expectation “that all are equal and no one is above the law,” and the importance of respecting a jury verdict. “This court is simply not persuaded that the first factor outweighs the others at this stage of the proceeding,” Merchan wrote in an 18-page decision.

Judge Merchan's full 18-page ruling, which is available at this link, is primarily concerned with rejecting the defense team's various arguments for dismissing all charges. As the very end, here is is how he explains his sentencing thoughts at the end of the decision:

While this Cout as a matter of law must not make any determination on sentencing prior to giving the parties and Defendant an opportunity to be heard, it seems proper at this juncture to make known the Court's inclination to not impose any sentence of incarcetation, a sentence authorized by the conviction but one the People concede they no longer view as a practicable recommendation.  As such, in balancing the aforementioned considerations in coniunction with the undetlying concerns of the Presidential Immunity doctrine, a sentence of an unconditional discharge appears to be the most viable solution to ensure finality and allow Defendant to pursue his appellate options.  Further, to assuage the Defendant's concerns regarding the mental and physical demands during this transition period as well as the considerations set forth in the 2000 OLC Memorandum, this Court will permit Defendant to exercise his right to appear virtually for this proceeding, if he so chooses.  People v. Reyes,72 Misc 3d 1133 [Sup Ct New York County 2011].

Facing guidelines recommending decades in prison, former Senator Menendez requests "sentence that relies heavily on alternatives to incarceration"

As reported in this New York Times piece, weeks "before Robert Menendez, New Jersey’s disgraced former U.S. senator, is scheduled to be sentenced for corruption, his lawyers submitted an emotion-laden appeal for leniency based on what they depicted as Mr. Menendez’s hardscrabble upbringing, life of service and devotion to family."  Here is more about the sentencing filing:

As they did during Mr. Menendez’s two-month bribery trial in Manhattan, [his lawyers] suggested that their client’s greatest failing was being led astray by a conniving wife. Nadine Menendez, the former senator’s wife, was charged with her husband with conspiring to trade his political influence for bribes of cash, gold bars and a Mercedes-Benz convertible. Her trial is expected to start next month....

“The evidence showed that Senator Menendez was unaware of activities that Nadine was undertaking, including the receipt and sale of gold bars by Nadine, and cash she stored in her locked closet and her safe deposit box,” the lawyers wrote in their filing.

And in a letter of support also filed on Thursday, Mr. Menendez’s daughter, Alicia Menendez, a high-profile anchor on the cable news network MSNBC, hinted at the sacrifices her father continued to make for his wife, who was being treated for breast cancer....

Her letter is among more than 120 filed on behalf of Mr. Menendez, part of an attempt to justify a prison term far shorter than the 12 years recommended by the court’s probation department. The U.S. attorney’s office for the Southern District of New York, which prosecuted Mr. Menendez, is expected to disclose the government’s sentencing recommendation in the coming weeks....

In Thursday’s filing, the former senator’s lawyers argued that the probation department’s recommendation of a 12-year prison term was “draconian — likely a life and death sentence for someone of Bob’s age and condition.” [The lawyers] suggested that the guidelines instead merited a sentence of no more than 27 months — and even that, they wrote, was too long. They urged Judge Stein to consider a period of imprisonment of less than 27 months paired with “at least two years’ rigorous community service.”

“He is certain never to commit future offenses,” the lawyers wrote about Mr. Menendez. “And his current state — stripped of office and living under a permanent shadow of disgrace and mockery — are more than sufficient to reflect the seriousness of the offenses and to promote respect for the law.”

The full 52-page sentencing filing is available at this link, and concludes with this paragraph:

For the foregoing reasons, the sentencing factors set out in Section 3553(a), as applied to the circumstances of this defendant and case, justify a substantially below-Guidelines sentence that credits Senator Menendez’s lifetime of good deeds and good character, his low likelihood of offending in the future, and the punishment he has already sustained due to his conviction.  As urged by a friend and former member of the Puerto Rican Senate Roberto L. Prats, “please consider that you are sentencing a good man who devoted his entire professional career to serving others. In doing so, he touched the heart and soul of many citizens, me included, asking for nothing in return.” Ex. U (Letter submitted by Roberto L. Prats, Esq.).  We respectfully submit that the Court should impose a sentence that relies heavily on alternatives to incarceration, as such a sentence is sufficient but not greater than necessary to accomplish the purposes of sentencing under 18 U.S.C. §3553(a).

"Toward Pretrial Criminal Adjudication"

The title of this post is the title of this new paper authored by Eric Fish and Chesa Boudin now available via SSRN. Here is its abstract:

The American criminal justice system faces a crisis of adjudication.  Courts rarely decide facts, hear arguments, or hold adversary hearings.  Trials are an endangered species.  Convictions nearly always happen when defendants declare themselves guilty pursuant to plea bargain agreements.  This crisis of adjudication undermines the system's legitimacy.  The rule of law has little purchase in a regime governed by guilty pleas.  Legal rights are not asserted. The government's evidence is not tested.  The values of neutrality, transparency, and legality are sacrificed as power moves from the courtroom to the prosecutor's office.  And case outcomes are dictated by punishment leverage, not by in-court presentation of evidence.  This has created a persistently high risk of wrongful convictions.  It has also eroded the rule of law and facilitated the growth of incarceration.

To address this crisis, academics and reformers have mostly focused on reviving the criminal jury trial.  This Article proposes instead to reframe criminal procedure in a way that emphasizes robust pretrial adjudication.  There are a variety of hearings and other legal proceedings that can happen before a jury trial.  These include grand juries, preliminary hearings, witness depositions, suppression hearings, and bench trials.  In most American jurisdictions, these procedures are weak or nonexistent.  But in some places, they are powerful.  California has an unusually demanding grand jury process.  Florida gives defendants broad rights to depose witnesses before trial.  North Carolina provides misdemeanor defendants both an initial bench trial and a subsequent jury trial.  This Article examines these and other unique practices to propose a fresh way of thinking about criminal adjudication.  It should not be an all-or-nothing proposition that begins and ends with the jury trial.  Adjudication is, at its core, the testing of evidence and law, before a neutral tribunal, carried out in public by trained legal experts.  And adjudication, thus understood, can be incorporated into the pretrial criminal process much as it is in civil cases.  Robust pretrial adjudication serves many of the criminal trial's essential functions-producing evidence, creating transparency, imposing burdens, dignifying the parties, and preserving the rule of law.  Such procedures can supplement the rarely exercised right to a jury trial.  And, if made effective, they can help restore the power of courts in a system that has mostly abandoned adjudication.

"The Prison Discovery Crisis"

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

For incarcerated people litigating pro se, the civil discovery process is of vital importance.  Without meaningful access to discovery, imprisoned litigants’ cases become swearing contests they are bound to lose, and wrongdoing in prison goes unaddressed.  Yet for these same plaintiffs, civil discovery is defunct.  The vast majority of incarcerated plaintiffs, including those with promising or meritorious claims, are unable to navigate either to or through litigation’s discovery phase.  Part diagnosis and part treatment, this Article is the first to explore in depth how the discovery process — as designed and implemented — fails those pursuing civil-rights claims against their jailers, betraying both a crisis in prison litigation and a failure of our procedural regime.

Relying on both case research and extensive interviews with federal judges, staff attorneys, prison rights lawyers, formerly incarcerated people, and prison officials, the Article chronicles prison discovery’s written and unwritten rules and their failures.  It begins with the Federal Rules of Civil Procedure, which map awkwardly or not at all onto prison litigation.  It then discusses the much broader amalgam of practical impediments to evidence-gathering in prison. These include profound informational asymmetries, resource disparities, and hostility between prison defendants — who create and control much of the evidence relevant to incarcerated people’s claims — and imprisoned plaintiffs.

The Article then scrutinizes the dockets and filings of 200 recent federal cases arising out of two different prisons in two different districts: Louisiana State Penitentiary in Louisiana and Menard Correctional Center in Illinois.  The research reveals differences between the districts’ case-management decisions and cultures, resulting in profound disparities in prison litigants’ discovery prospects.  Incarcerated litigants’ current chances of evidencing and vindicating claims may be largely contingent on the district in which their prison sits — what some incarcerated people call “justice by jurisdiction.”  Arguing that this situation is both untenable and preventable, the Article suggests multiple concrete avenues for reform.

"The Rule of Lenity and Affirmative Defenses"

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

The rule of lenity is undergoing a renaissance.  Lenity requires courts to construct ambiguous penal statutes narrowly. In recent years, scholars have sought to reinvigorate lenity as an important tool for combatting the American crisis in overcriminalization.  At the same time, the Supreme Court has issued a series of decisions debating the breadth and importance of lenity.  This Article contributes a new and unexplored dimension to the growing scholarship on lenity by considering lenity’s implications for affirmative defenses.

Affirmative defenses negate criminal liability, and they fall into three categories: justifications, excuses, and public policy defenses.  Justifications, like self-defense, render conduct non-criminal; justified conduct is permissible conduct.  Excuses, like insanity, render an actor non-punishable, despite their criminal conduct, because the actor is not an appropriate subject for blame.  Excused conduct is thus impermissible yet also unpunishable.  Finally, public policy defenses preclude punishment for justification-like or excuse-like reasons; they either vitiate an act’s wrongfulness (justification-like) or prevent punishment even though the act was wrongful (excuse-like).  Along with criminal statutes, affirmative defenses define the boundaries of what the state can punish.

This Article advances a novel claim: lenity applies to justifications and justification-like public policy defenses but not excuses or excuse-like public policy defenses.  Because justificatory defenses render conduct non-criminal, they effectively narrow the scope of a penal statute — the broader the justification, the narrower the penal statute.  Excusatory defenses, however, do not alter the scope of the criminal law.  They preclude punishment despite an act’s criminal character, so they do not affect the breadth or narrowness of penal statutes and do not implicate lenity. Lenity thus applies to justificatory defenses but not excusatory ones.

The consequences of applying lenity to justificatory defenses are profound. As a practical matter, it helps ordinary criminal defendants raise uncertain defenses and provides courts with an interpretative guide for recently enacted justifications like stand-your-ground laws and affirmative defenses to anti-abortion laws.  This expanded role for lenity also creates new possibilities for environmental and animal activists aiming to exploit ambiguous justifications to advance their causes, thus laying the groundwork for potentially transformative legal change.  Further, the Article’s claims about the ambit of lenity have important implications for related scholarly debates.  For example, the Article argues for the first time that some public policy defenses may be justification-like in their function, and it proposes a staunchly textualist — or “empirical” — approach to drawing the distinction between justifications and excuses.  These novel arguments have implications for foundational questions regarding culpability and interpretative methodology in criminal cases.

"The Impact of United States v. Erlinger on State Recidivist Sentencing Laws"

The title of this post is the title of this notable new essay authored by Chad Flanders just posted to SSRN.  Here is its abstract:

In Erlinger v. United States, the U.S. Supreme Court ruled that finding that an offender had committed two felonies "on separate occasions" under the Armed Career Criminal Act had to be made by a jury, not a judge.  In one respect, the decision is narrow and straightforward: it merely is an extension of the Court's Apprendi jurisprudence.  But in another respect, the decision is far-reaching.  As some state appeals courts have already realized, the decision makes unconstitutional state laws that give the judge -- rather than the jury -- the power to decide whether someone is a "persistent" or "habitual" offender based on whether a defendant's felonies occurred at "different times" or on "separate occasions."  This paper is a call for lawyers and scholars to pay attention to Erlinger.  It also tries to give some guidance to defendants litigating Erlinger violations, courts dealing with these defendants, and state legislatures who will have to fix their now-unconstitutional sentencing laws.

Reduction granted on two bases to remedy extreme stash-house sting sentence

A helpful colleague alerted me to a notable recent sentence reduction ruling/opinion handed down last week in US v. Evans, No. 93-00123-CR (SD Fla. Dec. 10, 2024) (available download below). The case inolves a defendant who was initially sentenced three decades ago to 57 years in federal prison in a so-called "stash house sting" case. (I have posted on the ugly dynamics of stash-house stings in any number of prior posts, and I recommend two episodes of the Drugs on the Docket podcast (here and here).)  

The 33-page ruling in the Evans case should be read in full, as it covers lots of notable factual and legal ground.  The ruling defies easy summarization, and I will here just reprint the start of the opinion and some later notable passages:

Sherlon Evans has served over thirty-one years of a nearly fifty-year sentence, totaling 595 months.  Mr. Evans has now moved for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A), claiming that “extraordinary and compelling” reasons warrant review....   

Mr. Evans cites two “extraordinary and compelling” bases recognized by the recent policy statement issued by the U.S. Sentencing Commission (the “Commission”) as potentially justifying a reduction in sentence.  First, Mr. Evans contends that he is serving an “unusually long sentence” that is subject to a substantive change in law, which would produce a “gross disparity” between the sentence he is currently serving and the sentence that would likely be imposed today. USSG § 1B1.13(b)(6).  Second, Mr. Evans points to the “unique aspects of [his] case” under the “catch-all” provision of § 1B1.13(b)(5), which permits a reviewing court to consider “any other circumstance[s]” that are “similar in gravity” to the other extraordinary and compelling reasons recognized by the Commission.

The Government opposes Mr. Evans’s Motion in its entirety.  It first challenges the validity of the Commission’s new policy, claiming the Commission had no authority to issue it, that the policy conflicts with § 3582(c)(1)(A), and that the policy raises separation of powers concerns.  The Government also argues that even if the new policy is binding, Mr. Evans is not entitled to a reduction under the supposedly compelling reasons he cites.  I reject the Government’s position on both fronts ... and reduce his sentence to time served....

[A]t least forty-three defendants who were convicted through reverse stash house stings have since had their sentences reduced to an average of just three years following protracted litigation against the ATF for alleged racial discrimination in its implementation of reverse stings.  [And] the circumstances of Mr. Evans’s sentence are even more striking in light of the fact that he played a relatively minor role in the conspiracy orchestrated by the ATF and Henry. That is, Mr. Evans was arrested because he was present when Henry planned and executed the “robbery.” I use the term “present,” as “the case against Mr. Evans was one that rose and fell on presence, and nothing more than presence. Presence [at] one meeting in which he may or may not have had very little to say, and presence along with everybody else at the scene of the offense at the time the arrests were made.”  Mr. Evans was not the ringleader or mastermind, did not supply weapons or recruit the other co-defendants into the scheme.  He was not even present when the conspiracy was hatched.  He was a tagalong, a hired hand to assist in the criminal deeds of others. Yet, Mr. Evans was sentenced with nearly the same degree of severity as those who were arguably more culpable in the commission of the crime....

[Other cases in which sentences were reduced] echo my own dismay and discomfort with the concept of a reverse stash house sting.  And when such a process results in a sentence of nearly half a century, that is an intolerable outcome.  To be sure, § 1B1.13(b)(5) may not be a vehicle to question the wisdom of the Government’s policing and prosecutorial practices.  It is a vehicle, however, to question the wisdom of continuing to incarcerate this particular man for another decade or more.  Sherlon Evans has served thirty-one years in federal prison for his presence in a conspiracy that he did not plan or lead, attempting to rob drugs that never existed, and carrying a “machine gun” that wasn’t a machine gun, which he never bought, held, brandished, or used. If his original sentence is left unaltered, Mr. Evans will be well into his seventies when he leaves prison — without having been convicted of actually selling one gram of cocaine or hurting any other person.

Download US v. Evans sentence reduction opinion

Notable new cert petition seeks to undo atextual "petty offenses" exception to constitutional jury trial right

In prior posts (some linked below), and also in this recent post over at the Sentencing Matters Substack, I have mused in various ways about what the Supreme Court's originalist turn could and should mean for various sentencing doctrines and broader criminal justice constitutional jurisprudence.  And so I was intrgued to see this new press release from the New Civil Liberties Alliance highlighing a new cert petition urging the Supreme Court to overturn its (unoriginalist) limit of just trial rights.  Here excerpts from the press release:  

[On December 13, 2024], the New Civil Liberties Alliance and the Stanford Law School Supreme Court Litigation Clinic petitioned the Supreme Court to hear David Lesh v. United States.  On behalf of Mr. Lesh, NCLA seeks to overturn the Court’s unjust precedent that directly contradicts the explicit language of the Constitution by denying individuals charged with “petty offenses” their right to a jury trial.  This precedent led the U.S. Court of Appeals for the Tenth Circuit to rule that NCLA client David Lesh was not deprived of his constitutional jury-trial right when prosecuted and convicted for violating U.S. Forest Service (USFS) regulations. The Supreme Court should take this opportunity to eliminate the “petty-offense exception.”...

The Supreme Court’s “petty-offense exception” to the Constitution’s jury-trial guarantee required the Tenth Circuit to uphold the magistrate’s determination that Mr. Lesh was not entitled to a jury trial.  However, in a powerful concurrence, Tenth Circuit Judge Tymkovich, joined by Judge Rossman, urged the Supreme Court to revisit the doctrine.  Judge Tymkovich explained that this exception appears to be inconsistent with the text of both Article III of the Constitution and the Sixth Amendment, and he noted that the exception has been called into question by many constitutional scholars.  Notably, the district court judge, who reviewed the magistrate’s determination, had made a similar observation in his decision upholding the convictions.

The Sixth Amendment’s jury-trial guarantee “[i]n all criminal prosecutions” is currently interpreted by the Supreme Court to exclude petty offenses — those generally carrying a penalty of six months’ imprisonment or less.  Article III independently protects this right as well, requiring trials for all crimes.  The exception applies even if, as in Mr. Lesh’s case, the defendant could conceivably serve more than six months if multiple counts of conviction are served consecutively.  Regardless, the exception contravenes the Constitution’s plain language and history and contradicts the Supreme Court’s methods for interpreting constitutional text.  The Justices have recently made clear that Americans cannot be stripped of their right to a jury trial for reasons of efficiency or expedience.

Lots of informatin about this case are assembled on this NCLA page, and here are a few excerpts from the cert petition (which is worth reading in full):

Today, the petty-offense exception denies criminal defendants the right to jury trial when they are charged with crimes punishable by a maximum of six months’ imprisonment and that are not otherwise judicially classified as “serious”— even when charged with multiple counts punishable by six months each....

This departure from the plain and unambiguous text of the Constitution violates a core promise of the Framers: that, in a criminal case, a jury of one’s peers would always stand between the accused and the power of the state to deprive him of liberty or property. It also makes a hash of the Constitution’s broader structure, rendering other carefully calibrated language regulating criminal procedure either meaningless or nonsensical. And the petty-offense exception flouts the historical common-law rule the Constitution was meant to render inviolate....

[T]he petty-offense exception flouts the text, structure, and history of the Constitution. But that is not all; it is also flatly inconsistent with this Court’s modern methodology for construing the Sixth Amendment....

Yet instead of adhering to the original public meaning of the right to jury trial, the Court has grounded its petty-offense exception in a balancing of policy considerations. The Court has opined that “the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive nonjury adjudications.” Duncan, 391 U.S. at 160. And when creating the six-month cutoff for petty offenses, this Court “weigh[ed] the advantages to the defendant against the administrative inconvenience to the State inherent in a jury trial and magically conclud[ed] that the scale tips at six months’ imprisonment.”  Baldwin v. New York, 399 U.S. 66, 75 (1970) (Black, J., concurring in the judgment).

A few of many recent posts on originalism topics:

• Initial musings on the Supreme Court’s originalist turn and sentencing issues
• Exploring originalism and criminal justice at this SCOTUS moment 
• Modest musings on Eighth Amendment originalism two decades after Ewing v California 
• Notable (and failed) argument that “originalist" jury trial right must allow juries to know about sentence and nullification 

"An Equilibrium Model of Deferred Prosecution Agreements"

The title of this post is the title of this new paper now on SSRN authored by Brian Grenadier and Steven R. Grenadier. Here is its abstract:

Deferred prosecution agreements (DPAs) are now a standard tool used by prosecutors to punish corporate crime.  Under a DPA, the defendant escapes prosecution by living up to the terms of the contract. However, if the prosecutor declares a breach, the defendant may face immediate prosecution.  We present an equilibrium theoretical model of the terms of a DPA, highlighting a little-recognized, yet potentially valuable benefit accorded the defendant: the option to breach.  While at the initiation of the agreement, a breach might likely be seen as a much more painful outcome than adhering to the DPA, over time this situation could change.  Using the tools of real option analysis, we demonstrate that DPAs may embed valuable optionality, particularly for longer-term agreements with significant uncertainty over future prosecution outcomes.  Since DPA penalties must price in such optionality, naïve comparisons to agreements without optionality, such as plea bargains, will mistakenly conclude that DPA terms are overly onerous and oppressive.

New HBO documentary, "Nature of the Crime," examines parole process through two New York murder cases

This short New York Times review flags a new documentary premeiring on Max tonight that seem worth checking out.  Here is the start of the NYT review:

Peering into the heart of the beast we call the justice system, the directors Ricki Stern and Jesse Sweet zero in on parole, a part of the process that usually unfolds behind closed doors.  “Nature of the Crime” offers rare glimpses of the make-or-break interviews that, in more cases than not, deny petitioners their longed-for second chance.  As it traces, over a four-year period, the cycles of hope and despair for two incarcerated men — both in New York prisons for crimes committed in the state — this quiet and affecting documentary is at once an argument for reform and a soul-searching question: Should the guiding principle of criminal justice be retribution or rehabilitation?

The men at the center of the film have been behind bars for more than 30 years.  Todd Scott was 19 when he was charged, alongside three others, with the killing of a rookie police officer in Queens.  Chad Campbell was charged at 14 with committing a horrific double murder in his upstate hometown. Speaking to the filmmakers, and in conversations with their devoted pro bono attorneys, they are thoughtful and sincere.  When they also recall the abuse they suffered as children, they provide context, not excuses.

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

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

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

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

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

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

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

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

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

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

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

“That’s comforting,” Gorsuch quipped.

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

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

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

Highlighting the successes and limited availability of veteran treatment courts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some of many, many prior related posts:

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

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

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

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

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

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

"Major-Questions Lenity"

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

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

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

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

Are "pragmatic prosecutors" now the next big thing?

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

"Compassionless Plea Bargaining"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts:

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

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

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

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

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

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

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

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

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

Expanded academic and caselaw resorces from the Plea Bargaining Institute

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts:

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

"Preserving Precedent on Capital Mitigation"

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

In the Court's recent decision in United States v. Tsarnaev, Justice Thomas appears to be planting the seeds for overturning longstanding precedent in death penalty trial procedure.  A line of cases on capital mitigation — evidence in favor of sparing the life of a criminal defendant facing the death penalty — has both expanded the scope of mitigating evidence and afforded wide latitude to sentencing decision-makers when evaluating this evidence.  The Essay asserts that in opposing this line of cases, Justice Thomas improperly ignores the procedural safeguard function that mitigation's deliberative liberties serve at a capital trial.  This safeguard function is indispensable: even with it in place, the existing system has produced convictions and death sentences of innocent individuals, some of whom have likely been executed.  The Essay casts a much-needed spotlight on the logic of mitigation as procedural safeguard, arguing that any attempt to overturn precedent must explain why this logic and its aspiration to heightened reliability no longer apply when it comes to the nation's ultimate punishment.

Pentagon secrets leaker sentenced after plea deal to 15 years in prison

Professor Sam Merchant, in a forthcoming article to appear in the next issue of the Federal Sentencing Reporter, makes the astute point that it is hard to assess or even understand judicial sentencing discretion exericised by federal judges after Booker without a deeper understanding of plea practices.  As he puts it: "If binding or nonbinding plea agreements actually drove the [most federal] sentences, any discussion of judicial discretion that ignores the central role of plea agreements is at best incomplete and at worst inaccurate or misleading."  This insight came to mind when I saw this AP report about today's high-profile sentencing of a "Massachusetts Air National Guard member to 15 years in prison after he pleaded guilty to leaking highly classified military documents about the war in Ukraine." Here are the basics:

Jack Teixeira pleaded guilty earlier this year to six counts of willful retention and transmission of national defense information under the Espionage Act following his arrest in the most consequential national security case in years....

The security breach raised alarm over America’s ability to protect its most closely guarded secrets and forced the Biden administration to scramble to try to contain the diplomatic and military fallout.  The leaks embarrassed the Pentagon, which tightened controls to safeguard classified information and disciplined members found to have intentionally failed to take required action about Teixeira’s suspicious behavior....

Earlier in court, Assistant U.S. Attorney Jared Dolan told [Judge] Talwani that 200 months — or a little more than 16 1/2 years - was appropriate given the “historic” damage caused by Teixeira’s conduct that aided adversaries of the United States and hurt the country’s allies.  He also said that recommendation by prosecutors would send a message to anyone in the military who might consider similar conduct....

But Teixeira’s attorney Michael Bachrach told the judge Tuesday that 11 years was sufficient. “It is a significant, harsh and difficult sentence, one that will not be easy to serve,” Bachrach said. “It will serve as an extreme deterrent to anyone, particularly young servicemen. That is enough to keep them deterred from committing serious conduct.”

When Teixeira pleaded guilty, prosecutors said they would seek a prison term at the high end of the sentencing range. But the defense wrote in their sentencing memorandum earlier that the 11 years “would be essentially equal to half the life that Jack has lived thus far.”

His attorneys had described Teixeira as an autistic, isolated individual who spent most of his time online, especially with his Discord community.  They said his actions, though criminal, were never meant to “harm the United States.” He also had no prior criminal record.  “Instead, his intent was to educate his friends about world events to make certain they were not misled by misinformation,” the attorneys wrote.  “To Jack, the Ukraine war was his generation’s World War II or Iraq, and he needed someone to share the experience with.”

Prosecutors in court filings countered that Teixeira did not suffer from any intellectual disability that would prevent him from knowing right from wrong, adding his post-arrest diagnosis of “mild, high-functioning” autism was of “questionable relevance” to the proceedings.

Why, one might wonder, did the prosecution "only" argue for a 16+-year sentence while the defense was "only" advocating for 11 years?  Becuase the parties defined those numbers as the acceptable sentencing range in this case via the plea agreement.  Perhaps the district judge here might have thought to impose a 15-year sentence without the plea agreement providing this binding anchor on the outcome, but we can never really know.

Is attempted murder under New York law a "crime of violence" under federal law?

The question in the title of this post likely seems a bit ridiculous.  And yet this question is the issue being considered by the Supreme Court at oral argument this morning in Delligatti v. US.  To be precise, here is the (lengthy) question presented in the petitioner's brief: 

Under 18 U.S.C. § 924(c)(3)(A), a felony qualifies as a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 

Courts have disagreed about how to apply use-of-force language to crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action. In the decision below, the Second Circuit held that any crime requiring proof of death or bodily injury categorically involves the use of physical force, even if it can be committed through inaction — such as by failing to provide medicine to someone who is sick or by failing to feed a child. 

The question presented is: Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

The government's brief is more economical in its statement of the issue in Delligatti: "Whether attempted murder, in violation of the Violent Crimes in Aid of Racketeering statute, 18 U.S.C. 1959(a)(5), is a crime of violence under 18 U.S.C. 924(c)(3)."  (The charge of attempted murder underlying petitioner’s Section 924(c) count was premised on petitioner’s commission of New York attempted second-degree murder.)

Though I expect "normies" could answer the question in the title of this post without difficulty, astute federal criminal lawyers likely know why this question is not so simple.  The so-called "categorical approach" to sorting out what are "crimes of violence" under federal law has been bedeviling lawyers and judges for decades now, and Delligatti is just the latest variation on the theme.  Helpfully, this recent Law360 analysis of the case, headlined "High Court 'Violent Crimes' Case Tangled Up In Hypotheticals," provides a detailed account of this tale as old as ugly jurisprudential time as well as the parties' arguments in Delligatti.  I recommend that piece in full, and it concludes with a call to Congress to jettison the mandatory minimum at issue here altogether:

Delligatti shows how the categorical approach relies on hairsplitting legal hypotheticals and reaches absurd results.... So long as the Supreme Court remains supportive of the categorical approach and requires its implementation when analyzing elements clauses, lower courts cannot simply get rid of the categorical approach.  However, Congress can get rid of Section 924(c), with minimal consequences.

As the federal defenders explained in their amicus brief, even without Section 924(c), those convicted of violent crimes will still face long sentences, "even if their crimes are not technically ones of 'violence.'"...  Even without mandatory sentences, judges can impose sentences that fit the specific circumstances of individual defendants. In some cases, this might reduce the costs of our overgrown carceral system.  And where it is warranted, decades-long incarcerations can still be imposed without Section 924(c), and without the time-wasting uncertainty caused by the categorical approach. 

After Delligatti, Congress should recognize that requiring hypertechnical arguments regarding enhancements leads to counterintuitive outcomes and unnecessarily long prison sentences, and repeal Section 924(c). 

I am not expecting Congress to get rid of 924(c) mandatory minimums anytime soon, but it will be interesting to see if SCOTUS is willing to keep advancing limiting constructions of this statute.

Federal plea deals with three 9/11 defendants for LWOP sentences apparently revived by military judge

This AP article reports that a "military judge has ruled that plea agreements struck by alleged Sept. 11 mastermind Khalid Sheikh Mohammed and two co-defendants are valid, voiding an order by Defense Secretary Lloyd Austin to throw out the deals, a government official said." Here is more:

The official spoke on condition of anonymity Wednesday because the order by the judge, Air Force Col. Matthew McCall, has not yet been posted publicly or officially announced.

Unless government prosecutors or others attempt to challenge the plea deals again, McCall’s ruling means that the three 9/11 defendants before long could enter guilty pleas in the U.S. military courtroom at Guantanamo Bay, Cuba, taking a dramatic step toward wrapping up the long-running and legally troubled government prosecution in one of the deadliest attacks on the United States.

The plea agreements would spare Mohammed and two co-defendants, Walid bin Attash and Mustafa al-Hawsawi, the risk of the death penalty in exchange for the guilty pleas.

Government prosecutors had negotiated the deals with defense attorneys under government auspices, and the top official for the military commission at the Guantanamo Bay naval base had approved the agreements.

I do not know enough about Gitmo prosecutions or military justices to say whether this is the end of the matter, nor do I know if the coming change in federal administrations could be another wrinkle in any smooth plans to resolve these cases.  But I have an inkling that there are more chapter ahead in this very long running saga.

Prior recent related posts:

• Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty 
• Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences
• US Defense Secretary overrules GITMO overseer to revoke plea agreement with 9/11 defendants
• Rounding up a few major press pieces about revoked 9/11 plea deals

How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?

Throughout his succesful campaign for a return to the Oval Office, Donald Trump spoke repeatedly about pardoning persons federally prosecuted for their behaviors at the Capital on January 6, 2021.  With Trump now Preident-Elect, those promises are already leading to court filings in on-going Jan. 6 prosecutions as detailed in this new article:

Hours after most news outlets declared Donald Trump the winner of the presidential election, lawyers for January 6 defendants started to file motions, hoping to reap the benefits.

On Wednesday morning, an attorney for Christopher Carnell, who was found guilty of obstruction and other charges related to the riot on January 6, 2021, filed a motion to postpone a status hearing scheduled for Friday....  Carnell sought to move the hearing to December because he "is now awaiting further information from the Office of the President-elect regarding the timing and expected scope of clemency actions relevant to his case."... A judge denied Carnell's request on Wednesday....

An attorney for Jaimee Avery, another January 6 defendant, also filed a motion to delay a sentencing hearing scheduled for Friday.  Avery's lawyer is seeking to postpone it until after the presidential inauguration in January because of the "real possibility that the incoming Attorney General will dismiss Ms. Avery's case or, at the very least, handle the case in a very different manner."  As such, it would be "fundamentally unfair" for Avery to be sentenced this week....

The Justice Department's investigations and trials related to January 6 are ongoing. As of November, the Justice Department said that over 1,532 people had been charged, including 571 people who face felony charges of assaulting or impeding the police....

Trump has maintained that he would pardon many of the defendants, with the exception of those who are "evil and bad," he told Time in April.  Speaking to the National Association of Black Journalists in July, Trump said he would "absolutely" pardon rioters. "If they're innocent, I would pardon them," he said. "They were convicted by a very tough system."

Obviously, it is not entirely clear just what Trump may mean by "innocent" and "evil and bad" as determinants of who he will and will not pardon among the Jan. 6 defendants once he gets back to the White House.  But it does seem Trump is disinclined to issue a blanket pardon to all the Jan. 6 defendants.  And, as detailed in this April 2024 NBC piece, the Trump campaign was eager to stress that Jan. 6 clemency would involve a "case-by-case" process:

Former President Donald Trump ...  said that, if elected, he'd "absolutely" consider pardoning every single one of the hundreds of criminals convicted in connection with the attack on the U.S. Capitol.  But Trump's campaign, in a statement to NBC News, said such pardons would be "on a case-by-case basis," not the sort of blanket pardon Trump referred to in a recent interview with Time magazine....

"As President Trump has promised, he will pardon January 6th protestors who are wrongfully imprisoned by Crooked Joe Biden’s Justice Department, and those decisions will be determined on a case-by-case basis when he is back in the White House,” Karoline Leavitt, national press secretary for the Trump campaign, said.

I would guess that more than a few January 6 defendants and their supporters are already preparing clemency materials and that folks may already be trying to get them to Prez-Elect Trump and his team well before he takes office on January 20, 2025.  That reality leads me to wonder just what kind of clemency process Trump and his team might adopt to review the huge universe of 1,500+ Jan. 6 defendants that may seek clemency. 

Notably, Trump during his first term showed little interest in utilizing the traditional (and traditionally slow) Justice Department process for reviewing clemency applications.  But he also only issued a few dozen clemency grants before his final year in office and many of those involve high-profile political cases.  In his final year in his first Term (and especially once he was a lame duck), Trump ramped up his clemency grants, though finishing with still less than 250 total grants over four years.  Carefully reviewing and making case-by-case clemency decisions for all the Jan. 6 defendants would be a massive undertaking that could easily take the Trump team years, and I have to think this work will not be the new administration's top priority.

Notably, President Obama's experiences with clemency in the final years of his seoncd term provides a possible template for this kind of work, though I doubt the Trump team is likely to follow this model.  Working with the Justice Department, as detailed here, the Obama Administration created Clemency Project 2014 (CP14) which set forth a set of criteria for a kind of preferred clemency review at the Justice Department and in the White House.  The administration of CP14 had all sorts of ups and down, but in the end it helped Prez Obama grant a record number of federal commutations (over 1700).  Might Trump create some kind of CP25 to deal with the Jan. 6 cases?  

Interesting times.

What could (and what should) happen with Prez-Elect Trump's upcoming New York state sentencing?

Various media outlets today are reporting, as articulated in the headline of this article in The Hill, that "Trump’s victory likely means curtains for criminal prosecutions."  For three of Prez-Elect Trump's four on-going criminal prosecutions, that basic analysis seems largely right.  But for his New York state case, with jury verdict of multiple convictions and sentencing scheduled for later this month, I think the dynamics are more uncertain and perhaps more interesting.  

I am inclined to presume that Trump's lawyers will now seek an (indefinite?) delay of the sentencing now scheduled for November 26.  And yet, I can construct an argument for why Trump and his lawyers might want the sentencing to just go forward now.  If NY criminal procedure does not allow Trump to appeal his convictions until a sentence is imposed, perhaps he would want the sentencing to go forward so he can then seeking to have all his convictions overturned on appeal.  I assume Trump could get his sentence, whatever its terms, stayed while appealing his conviction.

Speaking of possible sentencing terms, if the sentencing were to go forward in two weeks, it seem extremely unlikely that Justice Merchan would impose imprisonment or any onerous condictions of probation on a President Elect.  Having just been elected President of the United States is quite the unique changed personal circumstance to raise at sentencing, and it has to be a mitigating factor.  If real life was one big sit-com, perhaps Justice Merchan could come up with some comical and creative "shaming sentence" for Trump (eg, having him post a video on Truth Social about the importance of proper bookkeeping).  But I am not sure it would be good at all to risk turning the theater of Trump's sentencing into theatre of the absurd. 

Because the Supreme Court's ruling in Trump v. United States only formally addressed "conduct alleged to involve official acts during his tenure in office, that ruling still seems not directly applicable.  But now that Trump is President-Elect, his lawyers might reasonably seek to draw on that ruling as well as broader constitutional principles to try to derail the case entirely.  I doubt any party wants to engaged in robust and novel constitutional litigation at this point, thought it still seems like a possibility.  {Update: I just saw an article reminding me that Justice Merchan has stated he would rule on a pending motion to dismiss based in part on the Trump ruling by next week.  Specifically, in this order, he indicated that the "motion to set aside the jury verdict and to dismiss the indictment will be handed down off-calendar on November 12, 2024."] 

Finally, I cannot help but wonder if New York Governor Kathy Hochul might consider offering Trump a pardon for his New York convictions.  For political reasons, I assume she would not.  But it could be quite an interesting gesture from a prominent Deocratic offical and could be pitched as a stateperson's response to Trump's call "to help our country heal."  Of course, a pardon does not serve to fully erase a criminal conviction, and so Trump might not even except a pardon even if one was offered.

Interesting times.