Sentencing Law and Policy

Arizona Supreme Court refuses to order its Gov to proceed with an execution ... for now

As detailed in some recent prior posts (linked below), a local prosecutor and crime victims had sued the new Gov of Arizona after her pledge not to move forward with a scheduled execution.   Late yesterday, the Arizona Supreme Court, for the time being, refused to order the execution to move forward.  This local article, which includes a link to last night's order from the Arizona court, provides this review:

Gov. Katie Hobbs is not compelled to carry out an execution warrant for death row prisoner Aaron Gunches, according to an order from the Arizona Supreme Court.  The court, in a ruling issued Wednesday, says its role is to “issue a warrant of execution that authorizes the director of the state department of corrections to carry out the execution.”

But the law does not mandate the governor act on the warrant, the court said.... The court acknowledged that the Arizona Constitution provides that the governor “shall take care that the laws be faithfully executed," and that the governor is obligated to protect victims' rights to justice and due process, but it said those were "mixed questions of law and fact that are not properly before us."

The court denied the petition, made by Karen Price, sister of the victim, to force the governor to enforce the warrant.  Price, however, could advocate for execution on other grounds....

The Maricopa County Attorney's Office responded to the decision with a statement.  "With this ruling, the court recognizes that the Governor’s actions have constitutional implications, and the Governor has a duty to follow the law. We are assessing next steps to ensure the law is upheld and victims receive justice," the statement said.

Prior recent related posts:

• Different approaches to death penalty administration from different governors 
• New Arizona Gov pledging not to allow new scheduled execution to go forward
• Maricopa County prosecutor joins victims' group in challenging new Arizona Gov's pledge not to go forward with scheduled execution

Convicted of felony murder as teen for police killing during burglary, LaKeith Smith gets sentence reduced to "only" 30 years in Alabama

A felony murder case from Alabama received some national media attention as a resentencing proceeding approached this week.  That resentencing and its context are covered in this AP article headlined "Man sentenced to 30 years after police officer shot friend." Here are some of the details:

LaKeith Smith was 15 when a police officer shot and killed his friend when the teens were caught burglarizing homes in Alabama, but it is Smith who will spend decades in prison for his friend’s death.  A judge on Tuesday sentenced Smith, now 24, to 30 years in prison — a reduction from the more than 50 years he originally received, but a blow to his family and advocates who argued he should not spend decades in prison for a killing he did not commit.

The new sentencing hearing was held after a judge ruled Smith’s original lawyer failed to present possible mitigating evidence about his home life and mental health. Circuit Judge Sibley Reynolds handed down the new sentence after a lengthy court hearing.  Sibley gave Smith the same punishment he previously handed down — 30 years for the felony murder charge and 25 years for burglary and theft — but this time allowed the sentences to run concurrently, instead of stacked on top of one another.

“What he received today was not justice. It was clearly an over-sentence,” defense attorney Leroy Maxwell said after court. He said they will pursue an appeal. Maxwell said the case, which has garnered national attention because of Smith’s age and the sentence he received, is the “poster child” for the misuse of felony murder laws that allow someone to be charged for a killing during commission of a felony even if the death was unintentional.

The fatal shooting happened on Feb. 23, 2015, when Millbrook police officers responded to a call of a burglary in progress. A Millbrook police officer shot and killed 16-year-old A’Donte Washington when officers surprised the teens, local news outlets reported. A grand jury cleared the officer in the shooting. The surviving four teens were charged with felony murder. Three took a plea deal, and Smith went to trial.

The Elmore County courtroom, which sits across the highway from a state prison, erupted in angry shouts after the judge handed down the sentence, attorneys and others said. “He’s not a murderer. He doesn’t deserve 55 or 30 years,” Smith’s mother, Brontina Smith, said after court.

Maxwell argued LaKeith Smith was the least culpable of the teens because he was the youngest and there was no evidence he fired a gun. The judge heard testimony about Smith’s difficult home life, as well as a request from Washington’s father to let Smith go free. “They were kids, just kids. I don’t condone them going to somebody’s house and whatever. Give them time for that. But the murder of my child? No,” Andre Washington said after court.

District Attorney CJ Robinson, who was the prosecutor in the case before being elected as district attorney, said the sentence is within the allowed guidelines. “There are no winners here. Never have been (in) this case,” Robinson said via text after court. He supported the new sentencing hearing for Smith, agreeing that Smith’s original trial lawyer did an inadequate job at sentencing....

The case has put a spotlight on the state’s felony murder law, a legal doctrine that holds someone liable for murder if they participate in a felony, such as a robbery, that results in someone’s death. Most states have felony murder laws, but rules vary on their use.  According to a 2022 report by the Sentencing Project, a group advocating against mass incarceration, 14 states allow people engaged in a felony to be convicted of felony murder for a killing committed by a third party if it can be characterized as a foreseeable result of their action.

Additional national media coverage of this case include the following:

From The Marshall Project, "New Scrutiny on Murder Charges Against People Who Don’t Actually Kill: The U.S. is the only country that still uses the 'felony murder' legal doctrine."

From Mother Jones, "Police Killed His Friend and Blamed Him. He Got 65 Years in Prison. He Was 15.: A cop took an Alabama teen’s life, but LaKeith Smith took the charge. His big mistake: wanting a trial."

GAO releases big report concluding "Bureau of Prisons Should Improve Efforts to Implement its Risk and Needs Assessment System"

The US Government Accountability Office (GAO) has released this big new Report to Congressional Committees fully titled "Federal Prisons: Bureau of Prisons Should Improve Efforts to Implement its Risk and Needs Assessment System."  The full report runs over 100 pages, but it starts with "Highlights" that include this text:

Why GAO Did This Study

Approximately 45 percent of people released from a federal prison are rearrested or return within 3 years of their release.  The First Step Act included certain requirements for DOJ and BOP aimed to reduce recidivism, including requiring the development of a system to assess the recidivism risk and needs of incarcerated people.  It also required BOP to provide incarcerated people with programs and activities to address their needs and if eligible, earn time credits.

The First Step Act required GAO to assess the DOJ and BOP’s implementation of certain requirements.  This report addresses the extent to which DOJ and BOP implemented certain First Step Act requirements related to the (1) risk and needs assessment system, (2) identification and evaluation of programs and activities, and (3) application of time credits.

GAO reviewed legislation and DOJ and BOP documents; analyzed 2022 BOP data; and interviewed DOJ and BOP headquarters officials and BOP’s employee union.  GAO also conducted non-generalizable interviews with officials from four BOP regional offices facilities, selected to ensure a mix of different facility characteristics.

What GAO Found

Since the enactment of the First Step Act of 2018, the Department of Justice (DOJ) developed a risk assessment tool to measure an incarcerated person’s risk of recidivism.  In addition, the Bureau of Prisons (BOP) modified its existing needs assessment system to identify incarcerated people’s needs, that if addressed may reduce their recidivism risk. However, BOP does not have readily-available, complete, and accurate data to determine if assessments were conducted within required First Step Act and internal timeframes. As of October 2022, BOP plans to implement monitoring efforts to assess First Step Act requirements, but has not determined if these efforts will measure whether assessments are completed on time.  Without such data and monitoring, BOP is not in a position to determine if staff complete assessments on time, which are necessary for earning First Step Act time credits.  These time credits may allow incarcerated people to reduce the amount of time they spend in a BOP facility.

BOP created a plan to evaluate its evidence-based programs, as required by the First Step Act.  However, the plan did not include quantifiable goals that align with certain First Step Act requirements, or have clear milestone dates.  By including such elements in its plan, BOP will be better positioned to ensure its evaluations are conducted in a timely manner, and align with the First Step Act.  BOP has some data on who participates in its programs and activities, but does not have a mechanism to monitor if it offers a sufficient amount. Without such a mechanism, BOP cannot ensure it is meeting the incarcerated population’s needs.  Further, while BOP offers unstructured productive activities for which incarcerated people may earn time credits, BOP has not documented a complete list or monitored them.  Without doing so, BOP cannot ensure it provides transparent information.

BOP’s procedure for applying time credits has evolved over time.  Initially, BOP did not have data necessary to track time credits and developed an interim approach in January 2022.  Subsequently, BOP implemented an automated-calculation application for time credits that took into account factors the interim procedure did not.  As a result, some incarcerated people may have had their time credits reduced.  In November 2022, BOP issued its First Step Act Time Credits program statement, with new procedures.

What GAO Recommends

GAO is making eight recommendations for BOP to improve its implementation of the First Step Act, including collecting data, ensuring its evaluation plan has goals and milestones, having monitoring mechanisms, and tracking unstructured productive activities. BOP concurred with six recommendations, but did not concur with two.  GAO continues to believe these are valid.

"After McCleskey"

The title of this post is the title of this recent paper authored by Robert Tsai recently posted to SSRN. Here is its abstract:

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate’s argument that significant racial disparities in the administration of Georgia’s capital punishment laws violated the Fourteenth Amendment’s Equal Protection Clause.  In brushing aside the most sophisticated empirical study of a state’s capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system.  Most accounts of the case end after noting the ruling’s incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates.  One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether.

But that would be wrong and incomplete.  For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision.  It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith.  It is also based on archival research into their case files.  Drawing from these resources, this Article shows how a subset of cause lawyers in the late 1980’s and early 90’s had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of “rebellious localism.”  Instead of forsaking structural equality claims, they doubled down on them.  Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it.  They also scrambled to formulate reliable quantitative evidence of intentional discrimination.  Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts.

Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable.  For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances.

"The Minimalist Alternative to Abolitionism: Focusing on the Non-dangerous Many"

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

In The Dangerous Few: Taking Prison Abolition and Its Skeptics Seriously, published in the Harvard Law Review, Thomas Frampton proffers four reasons why those who want to abolish prisons should not budge from their position even for offenders who are considered dangerous.  This essay demonstrates why a criminal law minimalist approach to prisons and police is preferable to abolition, not just when dealing with the dangerous few but also as a means of protecting the nondangerous many.  A minimalist regime can radically reduce reliance on both prisons and police, without the loss in crime prevention capacity and legitimacy that is likely to come with abolition.

Prior related post:

• "The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics" 

Notable Seventh Circuit discussion of how a combination of factors can amount to "extraordinary and compelling reasons"

A helpful colleague made sure I did not miss a short ruling authored by Judge Frank Easterbrook for the Seventh Circuit concerning factors in support of motions for compassionate release. The ruling in US v. Vaughn, No. 22-2427 (7th Cir. March 15, 2023) (available here), is worth reading in full, and this is part of the discussion that seems especially notable:

Vaughn maintains that his arguments collectively identify “extraordinary and compelling reasons” even if none of them does so independently. At least two circuits have held that it is permissible to consider reasons jointly as well as severally. United States v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir. 2022); United States v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021). But one has gone the other way, remarking: “[W]hy would combining unrelated factors, each individually insufficient to justify a sentence reduction, amount to more than the sum of their individual parts?” United States v. McKinnie, 24 F.4th 583, 588 (6th Cir. 2022). See also United States v. McCall, 56 F.4th 1048, 1066 (6th Cir. 2022).

The Sixth Circuit’s rhetorical question has some intuitive appeal. Often 0 + 0 = 0. But not always. One persistent error in legal analysis is to ask whether a piece of evidence “by itself” passes some threshold — to put evidence in compartments and ask whether each compartment suffices. But when one court of appeals asked whether Fact A showed probable cause for an arrest, then whether Fact B did so, whether Fact C did so, and so forth, the Supreme Court reversed in a sharp opinion reminding all judges that evidence should not be compartmentalized.

[T]he [court of appeals] viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.”  This was “mistaken in light of our precedents.”  The “totality of the circumstances” requires courts to consider “the whole picture.”  Our precedents recognize that the whole is often greater than the sum of its parts — especially when the parts are viewed in isolation. Instead of considering the facts as a whole, the [court of appeals] took them one by one. … The totality-of-the-circumstances test “precludes this sort of divide-and-conquer analysis.”

District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (internal citations omitted). Similarly, we have held that in employment-discrimination cases a district court must consider the evidence as a whole, rather than sorting facts into boxes and asking whether each suffices.... Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765–66 (7th Cir. 2016).

If we conceive of “extraordinary and compelling reasons” as those differentiating one prisoner’s situation from 99% of other prisoners, it is easy to see how Circumstance X could be true of only 10% of prisoners, Circumstance Y of 10%, and Circumstance Z of 10% — each insufficient to meet the threshold, but if they are independent then collectively enough to place the applicant among only 0.1% of all federal prisoners.  We do not say here that 99% is the threshold for “extraordinary and compelling reasons”; in the absence of guidance from the Sentencing Commission, identifying the threshold is committed to the discretion of district judges, with deferential appellate review.  See United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020).  Our point, rather, is that no matter how the threshold is defined, a combination of factors may move any given prisoner past it, even if one factor alone does not.  This leads us to disagree with the Sixth Circuit’s approach.

This does not help Vaughn in the end, however, because the discretion to evaluate multiple circumstances resides principally in the district courts.

Columnist George Will argues high plea rates can be explained by, "to a significant extent, coercion"

In this new Washington Post piece, headlined "How government’s excessive reliance on plea deals can undermine justice," George Will highlights the ABA's recent Plea Bargain Task Force Report (discussed here) to lament how prevalent pleas have become in our criminal justice systems.  Here are some excerpts:

Herewith a two-question quiz: What is the only right affirmed both in the Constitution of 1787 and in the Bill of Rights? And what governmental practice produces the most pervasive and glaring civil rights deprivations?

The answer to the first question is: the right to trial by jury. (Article III, Section 2: “The trial of all crimes, except in cases of impeachment, shall be by jury”; Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”) The answer to the second is: plea bargaining as currently practiced, which often effectively nullifies this right.

A just-published report by an American Bar Association task force says plea bargaining has not only become the primary way to resolve criminal cases, “some jurisdictions have not had a criminal trial in many years.” Think about that: Years can pass without a defendant exercising the constitutional right to an adversarial process conducted in public in front of a neutral judge and a jury of the defendant’s peers....

Last year, 98.3 percent of federal criminal convictions, and about 95 percent in the states, resulted from bargained guilty pleas. Why? To a significant extent, coercion.

This often begins with detention in frightening conditions: To be arrested is to be suddenly plunged into control by a government speaking an often arcane legal language.  Then there is “stacking” — prosecutors piling on charges which, in a context of mandatory minimum sentences, force defendants to choose between risking potentially life-ruining trials and pleading guilty to lesser charges, even if innocent....

The task force’s report stresses that plea bargaining has legitimate uses. It incentivizes defendants to accept responsibility for criminal conduct, and offers finality to their victims and the community.  Furthermore, prosecutorial resources are scarce, and plea bargaining is a mechanism for efficiently resolving cases.  No value in life, however, invariably supersedes all others, and the pursuit of efficiency has too often become “the driving force of criminal adjudication,” supplanting transparency and justice....

The Cato Institute’s Clark Neily and others suggest that plea bargaining on today’s “industrial scale” could be countered by a “trial lottery”: A small percentage of cases in which plea agreements have been reached should be randomly sent to trials.  How often would the government be unable to secure a conviction after it has managed to induce a pre-trial guilty plea?  Let’s find out.

I wish Will had mentioned the problems of acquitted conduct sentencing enhances in his discussion of the various forces that contribute to the very high rate of guilty pleas.  I raise the issue in part because as long as significant sentencing increases based on acquitted conduct remains permissible, prosecutors will always have a great incentive to bring as many charges as possible even if some plea cases were to "be randomly sent to trials." 

Prior related post:

• ABA Criminal Justice Section releases "2023 Plea Bargain Task Force Report" 

"The Unconstitutional Conditions Vacuum in Criminal Procedure"

The title of this post is the title of this notable new article now available via SSRN authored by Kay Levine, Jonathan Remy Nash and Robert A. Schapiro. Here is its abstract:

For more than a century the United States Supreme Court has applied the unconstitutional conditions doctrine across a variety of settings, scrutinizing government efforts to condition the tradeoff of rights for benefits in the speech, funding, and takings contexts, among others.  The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to — and typically do — surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit.  Despite the Court’s insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, its jurisprudence demonstrates that the doctrine functions as a selective shield that offers no support for certain rightsholders.

We argue that the Court’s approach undermines vital rights, with especially harmful consequences for people who most need judicial protection.  Since individuals accused of crime are often extremely vulnerable to coercive government measures, the important safeguards offered by the unconstitutional conditions doctrine should be at their apex in the criminal procedure setting.  Indeed, lower federal courts and some state courts have applied the doctrine to criminal procedure issues, demonstrating the doctrine’s utility in this domain.  We conclude that the Supreme Court’s aversion to using the unconstitutional conditions doctrine in its criminal procedure docket rests not on a principled doctrinal distinction, but on a failure to take seriously the constitutional predicaments facing those charged with crimes.  In accordance with its obligation to render equal justice under law, the Court must apply the unconstitutional conditions doctrine in this most critical area.

New CRS piece reviews circuit split over justifications for revoking supervised release

A helpful reader alerted me to this notable new "Legal Sidebar" from the Congressional Research Service.  As suggested by the title, "Can Retribution Justify the Revocation of Supervised Release? Courts Disagree," the piece details a jurisprudential divide among the circuits for the justification for supervised release revocation.  Here is how the five-page report begins:

What are the legitimate reasons that a government may subject an individual to criminal punishment?  Western penological theory and American legal history generally identify four principled bases for criminal punishment: retribution, deterrence, incapacitation, and rehabilitation.  The Sentencing Reform Act (SRA) requires federal courts to impose an initial sentence that reflects these purposes of punishment.

The SRA also authorizes federal courts to sentence defendants to supervised release, encompassing a set of conditions that the defendant must comply with upon release from prison for a period of time (or, for some offenses, for up to life).  A defendant’s compliance with these conditions is “supervised” or monitored by a federal probation officer.  If a defendant violates a condition, the court may revoke the supervised release and send the defendant back to prison, among other things.  The SRA lists deterrence, incapacitation, and rehabilitation among the factors that a judge must consider in making these revocation determinations.  The SRA does not, however, expressly include retribution as one such factor.

The federal appeals courts disagree as to whether, and to what extent, retribution may justify the revocation of supervised release in light of this statutory omission.  On one side of the divide, the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts may consider retribution in making revocation decisions.  On the other side, the Fourth, Fifth, and Ninth Circuits have concluded that courts either may not consider retribution in these decisions at all or may consider it only to a limited degree.

This Sidebar summarizes the four purposes of punishment, including retribution; offers an overview of supervised release; and summarizes the aforementioned split.  The Sidebar concludes with congressional considerations.

"The (Immediate) Future of Prosecution"

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

Even as others make cogent arguments for diminishing the work of prosecutors, work remains — cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives.  The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate.  Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group — judges, prosecutors and defense counsel — can provide. The (immediate) future also requires prosecutors to do more to recognize the distinctive role they can play in combating illegitimate domination.

LWOP for NYC terrorist Sayfullo Saipov as jury unable to return unanimous death sentence verdict for his mass murder

As reported in this new New York Post piece, "West Side Highway terrorist Sayfullo Saipov will serve life in prison after a Manhattan federal court jury could not unanimously agree to sentence him to death for killing eight people and wounding several others in an ISIS-inspired rampage."  Here are more of the particulars of another high-profile case in which a jury did not all vote for a death sentence:

The jury’s failure to reach a unanimous verdict — necessary to impose the death penalty — on Monday ended a dramatic, months-long trial that saw surviving victims tearfully testify about the horror of his attack and the killer’s family members urge jurors to spare his life.

Saipov was convicted in January of fatally mowing down eight people along a West Side Highway bike path on Halloween 2017 in a rented Home Depot truck. During the penalty phase of the trial, prosecutors questioned a host of witnesses – including surviving victims and family members of those slain – to show jurors the horrific violence carried out by Saipov.

Assistant US Attorney Alexander Li told jurors during the guilt phase of the trial that Saipov smiled, gave a “proud confession” and requested an ISIS flag to hang in a hospital room where he was being treated after the attack....

The jury convicted Saipov on 28 counts — nine of which carried the possibility of the death penalty — hours after they began deliberations on Jan. 26.  The conviction triggered the penalty phase of the case — which functioned like another full trial, where prosecutors and defense attorneys questioned witnesses, presented evidence and delivered opening and closing arguments.

During the penalty phase, family members of those killed described in painstaking detail how they’ve been devastated by the loss of their loved ones. The emotional testimony was referenced in prosecutors’ dramatic closing argument on March 7 as they urged jurors to condemn Saipov.   “The defendant caused unbearable pain to these families. They are still suffering,” Assistant US Attorney Amanda Houle told jurors in her closing. 

“Has the government proven aggravating factors that show that the way that this defendant chose to commit murder, by terrorist attack and the unremorseful slaughter of innocent civilians. Does that make his crime worthy of a harsher penalty?” Houle asked jurors.   “The evidence shows overwhelmingly that it does,” she said.  Houle then described the testimony jurors had heard about how families of the slain victims had been upended by the terrorist attack....

Saipov’s defense attorneys had sought to humanize him by questioning his family members on the stand, most all of whom broke down in tears when they told the jury they still loved him — despite what he had done. The defense’s penatly-phase case reached a dramatic peak when his father, sobbing uncontrollably, told jurors he still loved his son “with all my heart” from the witness stand.

The testimony prompted Saipov’s uncle, who was seated in the gallery of the courtroom, to stand up and begin shouting in Uzbek. “Dirty ISIS bastards!” the man yelled in Uzbek before slamming his fist on a courtroom door and walking out of the room.

In an impassioned closing argument, Saipov attorney David Patton repeatedly told jurors they face a “unique, individualized, moral decision” in whether or not to sentence the terrorist to death. “That is an awesome responsibility and power, and we are asking you to decide for life, to decide that the appropriate moral decision here is life,” Patton said. “It is not necessary to kill Sayfullo Saipov, not for our safety or anyone else’s and not to do justice,” Patton said.

Prior related posts:

• Will NYC terror attack become the first big federal capital case for Trump's Department of Justice?
• "Trump labels US justice system 'laughing stock' "
• Is Prez Trump making a capital prosecution for NYC terror killer harder with his death penalty tweets
• Federal judge rejects Sayfullo Saipov's efforts to block capital prosecution based on Prez Trump's tweets
• Noting that the Biden Administration in a high-profile case "has decided to continue to seek the death penalty" 

Spotlighting DOJ support for proposed guideline amendment suggesting downward departure for criminal history involving marijuana possession

The folks over at Marijuana Moment have this effective new piece, headlined "Justice Department Backs Proposed Marijuana Sentencing Guideline Reform To Treat Past Convictions More Leniently," that flags the support from DOJ for a not-insignificant small proposed amendment to the federal sentencing guidelines criminal history rules.  Here are excerpts (with links from the original):

The Justice Department is backing a proposal to update a federal commission’s sentencing guidelines suggesting that judges treat prior marijuana possession offenses more leniently, arguing that it aligns with the Biden administration’s “sentiment” toward cannabis policy.  Members of the federal U.S. Sentencing Commission (USSC) voted to propose the amendment in January. And at a public hearing on Wednesday, a federal prosecutor testified on behalf of DOJ in support of the cannabis item.

As it stands, federal judges are directed to take into account prior convictions, including state-level cannabis offenses, as aggravating factors when making sentencing decisions. But as more states have moved to legalize marijuana, advocates have pushed for updated guidelines to make it so a person’s marijuana record doesn’t add criminal history points that could lead to enhanced sentences in new cases.

USSC’s proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted.”...

Jonathan Wroblewski, director of DOJ’s Office of Policy and Legislation, said in written testimony that the department “supports the proposed amendment” on revising the marijuana sentencing guidance....  Phillip Talbert, U.S. attorney for the Eastern District of California, reiterated that position in oral testimony before members of the commission during Wednesday’s public hearing.

“The department supports including convictions for the simple possession of marijuana, without an attempt to sell or distribute, as grounds for downward departure,” he said. “The commission’s proposal is consistent with the president’s views that no one should be in jail for the simple possession of marijuana and his pardon proclamation. It will also account for the many jurisdictions that have decriminalized personal use marijuana possession.”...

Not all witnesses at the commission’s Wednesday hearing supported the marijuana change, however.  The Probation Officers Advisory Group, which was established by the commission itself, said in written testimony that it “does not believe guidance is necessary for determining whether a downward departure is appropriate for defendants who receive criminal history points for simple marijuana possession offenses.”  The group pointed out that “the possession of marijuana has not been legalized federally and that state laws pertaining to marijuana vary greatly and are continually evolving, such that these measures may create greater sentencing disparities.”...

USSC separately released a report in January showing that hundreds of people received more serious federal prison sentences in the last fiscal year because of prior cannabis possession convictions in states that have since reformed their marijuana laws.  While federal marijuana possession cases have declined dramatically since 2014 as more state legalization laws have come online, the report highlighted the long-term consequences of cannabis convictions in terms of federal sentencing.

Some prior recent related posts:

• US Sentencing Commission publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission provides "Public Data Briefing: Proposed 2023 Criminal History Amendment"
• US Sentencing Commission releases "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System"

New Prison Policy Initiative briefing covers "Racial disparities in diversion: A research roundup"

I received word via email of this new Prison Policy Initiative briefing titled "Racial disparities in diversion: A research roundup."  Here is how it starts (with links from the original):

As the costs and impacts of mass incarceration continue to grow, along with increased public outrage on the issue, counties and municipalities are adopting a wide range of programs that divert people out of the criminal legal system before they can be convicted or incarcerated. Diversion programs exist to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process. This practice sounds like a win-win for communities — and it’s successful by many metrics — but as we explain in our 2021 report about diversion programs, their design and implementation greatly impact the outcomes for defendants. That report focuses on the stage of the criminal legal process at which diversion occurs, with the earliest diversions (i.e., pre-arrest) offering the most benefits.

This briefing builds on our previous work by examining how — like every other part of the criminal legal system — diversion programs are often structured in ways that perpetuate racial disparities. Here, we review key studies showing how people of color who are facing criminal legal system involvement are systematically denied or excluded from diversion opportunities. This inequity has a ripple effect, contributing to the troubling racial disparities we see elsewhere, in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. We conclude that policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements, and discretionary decision-making to offer these vital opportunities in a racially equitable way.

Please note that because existing research is largely centered around prosecutor-led diversion programs, this briefing and its recommendations are, too. Prosecutors hold immense power in their decisions to file or dismiss charges, release pretrial defendants, and recommend sentences; in this way prosecutors are arbiters of racial fairness in the criminal legal system, in part through diversion.

DOJ testimony to Sentencing Commission on acquitted conduct sentencing generates notable responses

A few weeks ago, the Justice Department testified to the US Sentencing Commission that is was generally against efforts to amend the guidelines to significantly curtail the consideration of acquitted conduct at federal sentencing (hearing here, written testimony here).  This week, that testimony has generated some notable responses. 

Specifically, this new Reuters commentary by Hassan Kanu, headlined "U.S. Justice Dept takes a hard line on sentencing reform," laments that DOJ's position on this issue "does not square with agency leadership and President Joe Biden’s forceful commitments to addressing racism in the justice system and reducing mass incarceration."  And, perhaps even more notable, the lawyers representing Daytona McClinton in one of the acquitted conduct cases pending before SCOTUS filed this short new supplemental brief with the Court. (Regular readers know that last year I filed an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.)  Here are some snippets from the new supplemental brief:

In its brief in opposition, the government argued that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.” Br. in Opp. 15.  In January 2023, the Sentencing Commission introduced preliminary proposed amendments that would, if adopted, place modest limitations on federal courts’ consideration of acquitted conduct in sentencing....

In urging the Sentencing Commission to reject the proposed amendments, the government began its argument with a broad reading of United States v. Watts, 519 U.S. 148 (1997) (per curiam).  The government argued that the Commission’s proposal to “[c]urtail[] the consideration of acquitted conduct at sentencing would be a significant departure from long-standing sentencing practice” because this “Court has continued to affirm that there are no limitations on the information concerning a defendant’s background, character, and conduct that courts may consider in determining an appropriate sentence.” Gov’t Views at 12-13.

That expansive reading of Watts is deeply at odds with the far more limited understanding the government has presented to this Court....  The government also appears to have reversed its position on whether “the Sentencing Commission could promulgate guidelines to preclude such reliance.” Br. in Opp. 15. In oral testimony to the Commission in February, the government argued that “[t]he Commission’s proposal is unfortunately inconsistent with [18 U.S.C. § 3661],” a statute governing sentencing law....

Even as the government urges this Court that other mechanisms exist to address a controversial sentencing practice that a host of distinguished jurists have criticized, see Pet. 11-15; Br. of 17 Former Federal Judges as Amici Curiae 1, the government simultaneously invokes a disputed reading of the quarter-century-old per curiam opinion in Watts to defeat even the most modest efforts at reform.  And contrary to its assurances to this Court, it now contends that the Sentencing Commission lacks authority to promulgate amendments addressing the practice.

Absent further guidance from this Court, there is no reasonable prospect of ending acquitted-conduct sentencing, even at the federal level.  And absent this Court’s review, there is no prospect of the practice ending at the state level, which comprises “the vast majority of criminal cases in the U.S.”

The Sentencing Project launches a "Second Look Network"

Regular readers should know that I am a big fan of second-look sentencing mechanisms, so I am also now a fan of a new "network" that I learned about via email today.  Here is a portion of the email (with links from the original):

The Sentencing Project is excited to announce the launch of the Second Look Network! The Second Look Network is a coalition of attorneys and post-sentence advocates across the country working on behalf of incarcerated individuals seeking relief from lengthy or unfair sentences.

The Network will facilitate the exchange of ideas and information between its members, and provide various opportunities for collaboration on effective litigation and mitigation strategies, host training sessions, and provide connections to experts and local policy efforts.  The Network will also provide communications and media support to its members. With support from Arnold Ventures, we are proud to create such a space to fill this need for the litigation community. 

To help build and maintain this Network, The Sentencing Project has welcomed a Director and Program Manager to our team.

Becky Feldman, Second Look Network Director

Becky is a post-conviction defense attorney and came to The Sentencing Project with 17 years of litigation and reentry experience on behalf of incarcerated people serving life sentences in Maryland prisons. 

Leyda Pereyra, Program Manager

Leyda is a social justice, equity and human rights advocate. Previously, Leyda served as an operational strategist and consultant to various campaigns that centered on health equity, economic empowerment, research and public policy through culturally responsive social justice frameworks.

We welcome you to learn more about the Network here. We also invite you to review the membership criteria, and, if applicable, apply to join us as we build this community.

I have written a whole lot about a broad array of second-look ideas and related issues in a a number of article through the years.  Here is a sampling of some of my major second-look related writings:

• "Re-Balancing Fitness, Fairness, and Finality for Sentences"
• "Reflecting on Parole's Abolition in the Federal Sentencing System"
• "Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers"
• "Leveraging Marijuana Reform to Enhance Expungement Practices"
• "Turning Hope-and-Change Talk Into Clemency Action for Non-Violent Drug Offenders"
• "Exploring the Theory, Policy and Practice of Fixing Broken Sentencing Guidelines"
• "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions"

US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments

As first flagged in this post a couple of weeks ago, for sentencing fans looking for binge-worthy viewing and reading, the U.S. Sentencing Commission is still in the midst of its series of public hearings concerning  its many proposed amendments to the US Sentencing Guidelines.  The first hearings, which took place on February 23 and 24, can still be watched in full via the now-achieved live-streamed recording at this link.  That link also has all the witness written testimony for a full 25 witnesses for the first two days of public hearings where "the Commission [received] testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sex Abuse of a Ward, and Acquitted Conduct."

The second set of hearing as this week, taking place on  March 7 and 8, and the link here where folks can live-stream all the action explains that the "purpose of the public hearing is for the Commission to receive testimony on proposed amendments related to Firearms, Fake Pills and the First Step Act-Drug Offenses, Circuit Conflicts, Career Offender, and Criminal History."  For these two days, it appears that there is again another 25 witnesses scheduled to testify on all these topics, and it appears that all their written testimony is already linked.   And again, the Commission will be engaging with a bunch of big policy questions along with lots and lots of (consequential) guideline technicalities. 

Among the many reasons the Commission has such a challenging job, on one issue they have to work with (or around) a recent Supreme Court cert grant.  As the Commission has rightly noted in proposed amendments, the FIRST STEP Act's new safety-valve provision for sentencing in drug cases ought to be incorporated into the the guidelines in some way.  But the circuit courts are deeply divided on the interpretation of that statutory provision, which produced, as noted here, the SCOTUS cert grant in was Pulsifer v. United States.  But that case will not be argued until this coming fall, and very likely will not result in a SCOTUS ruling until probably Spring 2024.  The Commission can amend the guideline before and/or after the SCOTUS ruling, but should it try to guess where SCOTUS will go or instead try to now develop a guideline that can function independent from the statutory debate.

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve 

"To Hemp in a Hand-basket: The Meaning of 'Controlled Substance' Under the Career Offender Enhancement"

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

Sentencing enhancements can drastically impact prison sentences for people convicted of federal crimes.  The career offender enhancement is particularly harmful to a federal criminal defendant because it automatically raises their minimum offense level and criminal history score under the U.S. Sentencing Guidelines, which, although no longer mandatory, are almost always followed by judges in determining actual prison sentences.  Since 2016, the career offender enhancement has been applied to almost 8,000 criminal defendants who, at the time of their convictions, had accrued a total of two or more predicate felony convictions, for either a drug offense or a crime of violence enumerated in the Guidelines.

Yet an active circuit split over the definition of a “controlled substance” means that defendants with identical criminal histories could face drastically different guideline sentences.  Because the Supreme Court’s categorical approach in Taylor v. United States prohibits the use of “overbroad” predicate convictions for sentencing enhancement purposes, the definition of “controlled substance” is consequential -- a state statute criminalizing a broader set of conduct than applicable federal law cannot trigger the career offender enhancement.

Four circuits (the Fourth, Seventh, Eighth, and Tenth) have held that “controlled substances” are defined by applicable state law, sidestepping the categorical approach.  In those circuits, a prior conviction for marijuana that includes hemp -- now legal federally and in many states -- can serve as a predicate offense for the career offender enhancement. Four other circuits (the First, Second, Fifth, and Ninth) have held that “controlled substances” are defined by the Controlled Substances Act (CSA).  In these circuits, overbroad marijuana convictions cannot serve as predicate offenses under the categorical approach because the CSA currently legalizes hemp, while most state statutes before 2018 included hemp as a possible basis for conviction.  As a result, criminal defendants in these circuits are spared many years on their prison sentences by avoiding a career offender classification.

This Note argues that the Supreme Court should adopt the latter approach and hold that the CSA defines controlled substance offenses.  This recommendation is grounded in analysis of the career offender enhancement’s text, context, purpose, and history.

CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing"

As highlighted in this prior post, the Council on Criminal Justice last summer launched a new national commission "to examine why so many military veterans land in jail and prison and produce recommendations for evidence-based policy changes that enhance safety, health, and justice." This CCJ Commission has released this major policy report today titled "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing." This press release provides some highlights from the full report. Here are excerpts from the press release:

America’s civilian justice system fails to adequately identify veterans, steer them away from prosecution and incarceration, and coordinate or research the effectiveness of programs attempting to support them, the Council on Criminal Justice (CCJ) Veterans Justice Commission said in releasing its first set of recommendations today.

While data-based tools exist to verify a person’s veteran status, only 9 of the nation’s 18,000 law enforcement agencies and 11% of its 3,100 jails report using them, relying instead on veterans to self-identify, the Commission said. But many veterans fail to do so because of shame or fear of losing benefits. Hundreds of jurisdictions now operate specialized Veterans Treatment Courts (VTCs), but participation is often restricted to minor offenses, and just 36 of 2,300 prosecutors’ offices reported operating veteran-specific diversion programs. As a result of these and other holes in the system, veterans miss out on diversion opportunities or treatment targeting the service-related trauma and other conditions that often drive their criminal behavior.

The Commission, which is led by former Defense Secretary and U.S. Senator Chuck Hagel and includes former Defense Secretary and White House Chief of Staff Leon Panetta, issued three recommendations to address these and other challenges confronting veterans at the “front end” of the criminal justice system, from arrest through sentencing:

• To improve identification of veterans when they come in contact with the justice system, Congress should authorize a study to evaluate the effectiveness of databases that capture veteran status, order necessary improvements, and incentivize their use by local and state agencies....
• States and the federal government should pass laws expanding or creating opportunities for veterans to avoid arrest, conviction, or incarceration if they complete programs, including VTCs, requiring them to take responsibility for their actions and address issues underlying their criminal offending. The Commission also said courts should be permitted to consider combat exposure and other military experiences a mitigating factor at sentencing, including in cases involving violence.
• Noting that reliable data on justice-involved veterans is sorely lacking, the Commission recommended that the federal government establish a National Center on Veterans Justice to fund research and identify effective program interventions....

Prior related posts:

• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 
• Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems 

Notable 5-4 SCOTUS split in ruling to limit civil penalties of Bank Secrecy Act

Certain types of Supreme Court cases involve issues that can make it relatively easy to predict how nearly every Supreme Court Justice will vote.  But so-called "white-collar" cases are often not the predictable type, and today's Supreme Court ruling in Bittner v. United States, No. 21-1195 (Feb. 28, 2023) (available here), is a notable example of this reality.  The case involved the proper accounting for civil penalties for non-willful violations of the Bank Secrecy Act, and the individual prevails against the federal government through this notable voting pattern: 

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C. JACKSON, J., joined that opinion in full, and ROBERTS, C. J., and ALITO and KAVANAUGH, JJ., joined except for Part II–C. BARRETT, J., filed a dissenting opinion, in which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined.

Criminal justice fans should be a bit disappointed by the decision by three Justices to not join Part II-C of Justice Gorsuch's opinion. That section has these notable things to say about the rule of lenity:

Under the rule of lenity, this Court has long held, statutes imposing penalties are to be “construed strictly” against the government and in favor of individuals.  Commissioner v. Acker, 361 U.S. 87, 91 (1959)....

The rule of lenity is not shackled to the Internal Revenue Code or any other chapter of federal statutory law. Instead, as Acker acknowledged, “[t]he law is settled that penal statutes are to be construed strictly,” and an individual “is not to be subjected to a penalty unless the words of the statute plainly impose it.” 361 U. S., at 91 (internal quotation marks omitted and emphasis added).  Notably, too, Acker cited to and relied on cases applying this same principle to penalty provisions under a wide array of statutes, including the Communications Act of 1934, a bankruptcy law, and the National Banking Act.  See ibid....

[T]he rule exists in part to protect the Due Process Clause’s promise that “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle v. United States, 283 U.S. 25, 27 (1931).

If this section of the Bittner opinion carried the Court, I suspect this case might end up cited in more than a few criminal statutory interpretation cases. Maybe it still will be, but I suspect this ruling will end up of more interest to bankers than to criminal lawyers.

"Revocation at the Founding"

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

The Supreme Court is divided over the constitutional law of community supervision.  The justices disagree about the nature of liberty under supervision, the rights that apply when the government revokes supervision as punishment for violations, and the relationship between parole, probation, and supervised release.  These divisions came to a head in 2019’s United States v. Haymond, where the justices split 4-1-4 on whether the right to a jury trial applies to revocation of supervised release.  Their dispute focused on the original understanding of the jury right at the time the Constitution was ratified.

This Article aims to settle the debate over the law of revocation at the Founding. In the late 18th-century United States, there was a close legal analogue to modern community supervision: the recognizance to keep the peace or for good behavior.  Like probation, parole, and supervised release, the recognizance was a term of conditional liberty imposed as part of the punishment for a crime, providing surveillance and reporting on the defendant’s behavior, and with violations punishable by imprisonment.  Given these similarities, the best way to determine if the original understanding of the jury right would apply to revocation of community supervision is to ask whether the common law required a jury for punishing violations of a recognizance.

Fortunately, Founding Era legal authorities make the answer to that question clear: Yes, at the time the Constitution was ratified, punishing recognizance violations required a jury trial.  This requirement only disappeared during the 19th century with the development of probation and parole, which changed the structure of community supervision from an additional penalty into a delayed punishment.  Because supervised release is structured as a penalty, not a delay, the original understanding of the jury right would apply to revocation of supervised release, even if not to probation or parole.  The law of revocation at the Founding preserves lost constitutional rights that deserve modern reconsideration and renewal.

Cruising around some early commentary on Cruz v. Arizona

Perhaps in part because the U.S. Supreme Court has not yet issued that many notable opinions, and perhaps in part because every capital case that leads to an interesting 5-4 split ruling garners attention, there has been a good bit of early commentary regarding this past week's decision in Cruz v. Arizona, No. 21–846 (S. Ct. Feb 22, 2023) (available here), on behalf of a death row defendant. Here is a sampling:

At Crime & Consequences from Kent Scheidegger, "Supreme Court Reinstates Review of Arizona Murderer’s Case"

At Esquire from Charles P. Pierce, "Terrible Ideas Keep Inching Closer to Reality, Thanks to Supreme Court Conservatives"

At The Hill from Austin Sarat, "Supreme Court delivers rare victory for death row inmate: the chance to spend rest of his life behind bars"

At SCOTUSblog from Alexis Hoag-Fordjour, "In rare win for people on death row, justices chide Arizona for ignoring Supreme Court precedent"

At Slate from Leah Litman, "The Supreme Court Did Something Rare: Enforced a Precedent Conservatives Hate"

At the Washington Post from Ruth Markus, "The justices halt an execution — and reveal themselves in the process"

Split over reading of the FIRST-STEP-amended safety valve provision appears ready for SCOTUS review

In this post a couple of days ago, which discussed the latest notable circuit opinion interpreting the language Congress used in the FIRST STEP Act to expand the statutory safety valve enabling more federal drug defendants to be sentenced below mandatory minimum terms, I suggested it was only a matter of time before SCOTUS takes up the statutory interpretation dispute that has deeply divided lower courts.  And this new Relist Watch post by John Elwood at SCOTUSblog suggest it may actually be only a matter of days before cert is granted on this issue:

The Supreme Court will meet this Friday to consider whether to grant review in a group of around 95 petitions and motions. They will be considering eight cases for the second time....

Under the “safety-valve” provision of federal sentencing law, a defendant convicted of certain nonviolent drug crimes can obtain relief from statutory mandatory minimum sentences if, among other things, her criminal history satisfies criteria in 18 U.S.C § 3553(f)(1): she “does not have — (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”

Pulsifer v. United States and Palomares v. United States present the question of how that provision should be read: whether a defendant is ineligible for relief from the mandatory minimum if her criminal history runs afoul of any one of the disqualifying criteria in subsections (A), (B), or (C), or is ineligible only if her criminal history runs afoul of all three disqualifying criteria, subsections (A), (B), and (C).  The government agrees that the circuits are divided and review is warranted, and recommends that the court take Pulsifer, which it says is the better vehicle.  Counsel for Palomares and Pulsifer trade barbs in their reply briefs about which is the better vehicle.  Probably at least one will get the grant.

I share the view that, if the Justice Department is advocating for review, we ought to expect a grant on one of these cases perhaps as early as Monday.  My understanding is that a grant now would set the case up for Fall 2023 argument and likely no decision from SCOTUS until early 2024. 

US Sentencing Commission to begin series of public hearings on its proposed guideline amendments

For sentencing fans looking for binge-worthy viewing and reading, the United States Sentencing Commission is on the verge of starting a series of public hearings concerning  its many proposed amendments to the US Sentencing Guidelines.  The hearing, which start Thursday morning at 9am EST, will be live-streamed at this link.  That link details that the hearing is scheduled to run all day on February 23 and for half the day on February 24 and during these two days "the Commission [will] receive testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sex Abuse of a Ward, and Acquitted Conduct."

I count a full 25 witnesses scheduled for Thursday's hearing which is just considering guideline amendment for compassionate release.  Nearly all the written testimony for these witnesses can be found linked within the USSC's hearing schedule.  I doubt I will get a chance to review more than a few of the statements, and I welcome readers helping to flag written testimony that seems particularly notable.  There are "only" 12 witnesses scheduled for Friday's hearing covering sex abuse of a ward, and acquitted conduct.  A quick review of the seven statements concerning acquitted conduct reveal a wide variety of opinions from a wide variety of witnesses.

And if that's not enough for sentencing fans, the Commission today also noticed here its plans for a second two-day public hearing on Tuesday, March 7 and Wednesday, March 8.  As the notice explains, the "purpose of the public hearing is for the Commission to receive testimony on proposed amendments related to Firearms, Fake Pills and the First Step Act-Drug Offenses, Circuit Conflicts, Career Offender, and Criminal History."

ABA Criminal Justice Section releases "2023 Plea Bargain Task Force Report"

American Bar Association's Criminal Justice Section Plea Bargaining Task Force today released this 40-page report. The report's introduction provides some background and details concerning its work:

The Plea Bargain Task Force formed in 2019 to address persistent criticisms of the plea bargain system in the United States. Plea bargaining has become the primary way to resolve criminal cases. Indeed, some jurisdictions have not had a criminal trial in many years, resolving all their cases through negotiated resolutions.  For this reason, a critical examination of the modern plea system is necessary and important.

This Report comes after three years of work, during which the Task Force collected and reviewed testimony from experts in the field and those impacted by the plea system, scholarly and legal reports on plea bargaining, state and federal rules of criminal procedure, and other materials. What has become clear from this process is that plea bargaining is not one monolithic practice. It looks different depending on whether one is in state or federal court, a rural jurisdiction with few lawyers or an urban center with large prosecution and public defender offices.  Even within the same courthouse, informal practices may differ between courtrooms and attorneys.  Although these variations pose a challenge for the development of any one-size-fits-all set of recommendations to reform plea bargaining practices, this Report identifies and addresses numerous concerns with plea bargaining that are common to a wide variety of jurisdictions.  The Report then provides guidance to jurisdictions on how to meet those challenges while also promoting justice, transparency, and fairness.

There are many purported benefits of plea bargaining in the current criminal justice system.  Nearly all jurisdictions have limited resources and plea bargaining provides a mechanism to efficiently resolve cases. By preserving resources this way, jurisdictions are able to direct greater resources to investigations and cases that proceed to trial. Additionally, plea bargaining provides a mechanism to incentivize defendants to cooperate with the government or to accept responsibility for their criminal conduct.  A plea also provides a clear and certain resolution to a case, which offers finality for the defendant, the victim, the courts, and the community. Furthermore, defendants use the plea process to avoid some of the most severe aspects of the criminal system.

In moderation, many of these benefits make sense. But as the Task Force discovered, too often these benefits have become the driving force of criminal adjudication at the cost of more fundamental values. For instance, according to the testimony the Task Force collected, at times, efficiency and finality trump truth-seeking. Furthermore, many benefits of plea bargaining are, when viewed in a different light, a means to mitigate the excessive harshness of the modern American criminal system. In this sense, plea bargaining is not so much providing a benefit as it is a safety valve for quotidian injustice.

Moreover, the Task Force reviewed substantial evidence that defendants—including innocent defendants — are sometimes coerced into taking pleas and surrendering their right to trial.   This happens for a number of reasons. For instance, mandatory sentencing laws often make the risks of taking a case to trial intolerable, and in some cases, prosecutors understand and exploit these fears to induce defendants to plead guilty in cases where they otherwise would prefer to exercise their constitutional right to have the case decided by a jury.  Similarly, mandatory collateral consequences, including the threat of deportation, push defendants to accept pleas in cases they might otherwise fight at trial.

The Task Force also discovered that the integrity of the criminal system is negatively affected by the sheer number of cases resolved by pleas. For example, police and government misconduct often goes unchecked because so few defendants proceed to pre-trial hearings where such misconduct is litigated.  The reality that so few pretrial matters are litigated leads prosecutors to be less critical of their witnesses and less willing to scrutinize the strength of their cases, knowing that they won’t be held accountable at trial. Defense lawyers, similarly, are less likely to properly investigate cases, knowing their clients will almost certainly  take a plea. Plea bargaining creates perverse incentives across the system for lawyers and judges who focus on disposition rates and getting through cases quickly rather than resolving cases justly. Furthermore, the loss of trials in favor of plea bargains is a profound loss for civic engagement. Jury trials provide critical oversight to the criminal system, and juries remain one of the only ways for citizens to shape how prosecutors enforce laws. The voice of the community is almost entirely lost in a system dominated by pleas.

More troubling still, the Task Force heard many ways in which plea bargaining promotes and exacerbates existing racial inequality in the criminal system. The Task Force collected testimony from experts in the field who demonstrated that throughout the plea process similarly situated defendants of color fare worse than white defendants. Black defendants in drug cases, for instance, are less likely to receive favorable plea offers that avoid mandatory minimum sentences and, as a result, receive higher sentences for the same charges as white defendants. The same is true for gun cases, in which Black defendants are more often subjected to charge stacking — a technique that allows prosecutors to pile on many charges, increasing the likely sentence after trial and the government’s leverage during plea negotiations – than white defendants.  In fact, across all charges the Task Force found evidence of significant racial disparities in prosecutorial decisions to drop or reduce charges.  For example, white defendants who face initial felony charges are less likely than Black defendants to be convicted of a felony, and white defendants facing misdemeanor charges are more likely than Black defendants to have their cases dismissed or resolved without incarceration.

After this introduction, this report sets forth fourteen principles that inform and structure the rest of the report.  Readers are encouraged to click through to see all the details, though here is the intro to the statement of principles:

While the plea bargaining process in the United States is broad and varied, the Task Force determined that it was vitally important to craft a single set of principles to guide plea practices generally. Those principles, which guide the Report’s more specific observations and recommendations, are listed below. These principles should be shared widely with members of the criminal justice community so that they might influence behavior and decision-making moving forward. These principles represent our conclusions about how plea bargaining should operate within our larger criminal justice system, a system based on the fundamental Constitutional right to trial.

Fourth Circuit panel joins minority of circuits giving broad reading to FIRST-STEP-amended safety valve provision

I have noted in a handful of prior posts some of the notable circuit rulings concerning the complicated language that Congress used in the FIRST STEP Act to expand the statutory safety valve enabling more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  A helpful reader made sure I did not miss the latest opinion on this topic, this one coming from a Fourth Circuit panel in US v. Jones, No. 21-4605 (4th Cir. Feb 21, 2023) (available here).  Here is how the opinion starts and concludes:

The safety valve provision found in the First Step Act allows a district court to impose a sentence without regard to a mandatory minimum if certain criteria are met.  Relevant here, the court must find that the defendant “does not have . . . more than 4 criminal history points, . . . a prior 3-point offense, . . . and a prior 2-point violent offense” (the “criminal history characteristics”). 18 U.S.C. § 3553(f)(1) (emphasis added).  Cassity Jones has more than four criminal history points but does not have a prior three-point offense or two-point violent offense.  The district court concluded that a defendant must have all three criminal history characteristics to be ineligible for relief and applied the safety valve in sentencing Jones.  The sole issue on appeal is whether the word “and” in § 3553(f)(1) connecting the criminal history characteristics applies conjunctively or disjunctively.  We conclude that “and” is conjunctive and affirm the district court’s decision....

Ultimately, whether or not this is a prudent policy choice is not for the judiciary to decide: that determination lies solely with the legislative branch.  And “[t]he [G]overnment’s request that we rewrite § 3553(f)(1)’s ‘and’ into an ‘or’ based on the absurdity canon is simply a request for a swap of policy preferences.” Lopez, 998 F.3d at 440.  We cannot “rewrite Congress’s clear and unambiguous text” simply because the Government believes it is better policy for the safety valve to apply to fewer defendants. Id. “The remedy for any dissatisfaction with the results in particular cases lies with Congress and not with this Court.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982); see also id. (“Congress may amend the statute; we may not.” (citations omitted)).

Accordingly, we are persuaded that the plain text of § 3553(f)(1) requires a sentencing court to find that a defendant has all three of the listed criminal history characteristics before excluding a defendant from safety valve eligibility.

Helpfully, a footnote early in the opinion details the circuit split over whether "and" means "and" or "and" means "or" in the context of this FIRST STEP Act revision of the application statute:

The circuits are split on this issue.  Compare United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022) (en banc) (concluding that only a defendant with all three criminal history characteristics is ineligible under § 3553(f)(1)), and United States v. Lopez, 998 F.3d 431 (9th Cir. 2021) (same), with United States v. Palomares, 52 F.4th 640 (5th Cir. 2022) (concluding that having any one of the criminal history characteristics renders a defendant ineligible under § 3553(f)(1)), United States v. Pace, 48 F.4th 741 (7th Cir. 2022) (same), United States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022) (same), and United States v. Haynes, 55 F.4th 1075 (6th Cir. 2022) (same). We find the Eleventh and Ninth Circuits’ decisions convincing and join those circuits.

This split make plain that it is only a matter of time before SCOTUS takes up this matter. And I would hope that SCOTUS would move quickly: according to US Sentencing Commission data, thousands of federal drug defendants each year are being subject to different laws and treated differently at sentencing based on this statutory conflict.

US Supreme Court, in 5-4 ruling, rejects Arizona's claim of proper state-ground basis to uphold death sentence

In an interesting little ruling in a state capital case, the US Supreme Court this morning in Cruz v. Arizona, No. 21–846 (S. Ct. Feb 22, 2023) (available here), rejected an effort by Arizona to preserve a state death sentence on procedural grounds.  The Court's opinion was authored by Justice Sotomayor and joined by the Chief Justice and Justices Kagan, Kavanaugh and Jackson. Here is how the Court's opinion starts and ends:

Petitioner John Montenegro Cruz, a defendant sentenced to death, argued at trial and on direct appeal that his due process rights had been violated by the trial court’s failure to permit him to inform the jury that a life sentence in Arizona would be without parole. See Simmons v. South Carolina, 512 U.S. 154, 161–162 (1994) (plurality opinion); id., at 178 (O’Connor, J., concurring in judgment). Those courts rejected Cruz’s Simmons argument, believing, incorrectly, that Arizona’s sentencing and parole scheme did not trigger application of Simmons. See State v. Cruz, 218 Ariz. 149, 160, 181 P.3d 196, 207 (2008).

After the Arizona Supreme Court repeated that mistake in a series of cases, this Court summarily reversed the Arizona Supreme Court in Lynch v. Arizona, 578 U.S. 613 (2016) (per curiam), and held that it was fundamental error to conclude that Simmons “did not apply” in Arizona. 578 U.S., at 615.

Relying on Lynch, Cruz filed a motion for state postconviction relief under Arizona Rule of Criminal Procedure 32.1(g). That Rule permits a defendant to bring a successive petition if “there has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.” Ariz. Rule Crim. Proc. 32.1(g) (Cum. Supp. 2022); see also ibid. (Cum. Supp. 2017).

The Arizona Supreme Court denied relief after concluding that Lynch was not a “significant change in the law.” 251 Ariz. 203, 207, 487 P. 3d 991, 995 (2021). The Arizona Supreme Court reached this conclusion despite having repeatedly held that an overruling of precedent is a significant change in the law.  See id., at 206, 487 P. 3d, at 994 (The “‘archetype of such a change occurs when an appellate court overrules previously binding case law’”).

The Court granted certiorari to address whether the Arizona Supreme Court’s holding that Lynch was not a significant change in the law for purposes of Rule 32.1(g) is an adequate and independent state-law ground for the judgment.  It is not....

In exceptional cases where a state-court judgment rests on a novel and unforeseeable state-court procedural decision lacking fair or substantial support in prior state law, that decision is not adequate to preclude review of a federal question.  The Arizona Supreme Court applied Rule 32.1(g) in a manner that abruptly departed from and directly conflicted with its prior interpretations of that Rule.  Accordingly, the judgment of the Supreme Court of Arizona is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

The  dissent was authored by Justice Barrett and joined by Justices Thomas, Alito and Gorsuch.  It ends this way:

The Court makes a case for why the Arizona Supreme Court’s interpretation of its own precedent is wrong.  If I were on the Arizona Supreme Court, I might agree.  But that call is not within our bailiwick.  Our job is to determine whether the Arizona Supreme Court’s decision is defensible, and we owe the utmost deference to the state court in making that judgment.  Cases of inadequacy are extremely rare, and this is not one.  I respectfully dissent.

Brief dissent from the denial of cert on plea ineffectiveness from Justice Jackson

This morning's Supreme Court order list, which comes after the Justices were off for nearly a month, had no cert grants and had lots and lots and lots of cert denials.  One of those denials, in Davis v. United States, No. 22–5364, prompted this short dissent authored by Justice Jackson and joined by Justice Sotomayor.  Here are excerpts:

Our criminal justice system today is “for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 566 U.S. 156, 170 (2012). Against this backdrop, this Court has recognized that the loss of an opportunity for a favorable plea offer due to an attorney’s deficient performance can violate the Sixth Amendment right to effective counsel. Id., at 169–170; see also Missouri v. Frye, 566 U.S. 134 (2012). Petitioner Quartavious Davis alleged, and the Eleventh Circuit did not dispute, that he satisfied the first prong of the Strickland ineffective-assistance-of-counsel standard because his attorney failed to initiate plea negotiations with the Government. The question presented, then, is how can a defendant like Davis show “prejudice” as a result of this failure?...

The District Court concluded that Davis’s allegations in his 28 U. S. C. §2255 motion were insufficient, even if true, because he had not alleged “that a plea offer was made but not communicated to [him].”... Moreover, under the circumstances presented here, it was exceedingly likely that Davis would have prevailed with respect to the prejudice prong if the Eleventh Circuit had not applied that threshold requirement.  Davis’s allegations established that a favorable plea agreement was a strong possibility, even though no offer actually materialized, because each of Davis’s five codefendants had lawyers who negotiated favorable plea agreements with respect to the same series of armed robberies.  And while Davis (who was 18 or 19 years old at the time the crimes were committed) received a sentence of approximately 160 years of imprisonment after his attorney took him to trial, all of Davis’s codefendants received sentences of less than 40 years of imprisonment due to plea agreements that enabled the District Court to impose a sentence below the mandatory minimum. T he District Court’s statements at sentencing were also noteworthy: The judge specifically asserted that, while he thought the appropriate sentence for Davis was 40 years, he was bound by the consecutive mandatory minimums.

The Eleventh Circuit gave short shrift to these alleged facts, and others, which suggest that Davis was harmed by his counsel’s failure to initiate plea negotiations because it applied a bright-line rule that prejudice cannot be shown in the absence of a plea offer.  This petition presents the Court with a clear opportunity to resolve a Circuit split regarding whether having an actual plea offer is an indispensable prerequisite to making the necessary showing of prejudice.  I would grant certiorari to resolve that issue.

Some notable SCOTUS sentencing stories from the relist watch

After an extended hiatus, the Supreme Court gets back in action next week.  In turn, John Elwood is back to keeping up with the cert pool through his terrific SCOTUSblog posts providing "Relist Watch."  And this week's "Relist Watch" installment has a couple of stories that all sentencing fans will find interesting:

The Supreme Court will meet this Friday for the first time in nearly a month to consider whether to grant review in new cases....

One other curious thing about our last installment’s relists: There were five petitions challenging the constitutionality of sentencing criminal defendants based on conduct the jury acquitted them of committing.  Those cases are just sitting there on the court’s docket, with no further action by the Supreme Court since it distributed them for the Jan. 20 conference.  The court generally doesn’t announce what it’s doing with pending petitions, so we have no choice but to speculate here.  But near as we can tell, the court appears to be holding those cases to see whether the U.S. Sentencing Commission acts on a pending proposal to place restrictions on federal courts’ consideration of acquitted conduct at sentencing.  One of the five petitioners, Dayonta McClinton (whom I represent), argues that the Sentencing Commission’s proposal is woefully inadequate to resolve the issue, but it still may explain the court’s inaction.  Things may become clearer down the road.

That brings us to new business. There are 423 petitions and motions pending on the Supreme Court’s docket for this Friday’s conference. Two of those cases are newly relisted....

The second new relist, Davis v. United States, is far more conventional.  Petitioner Quartavious Davis was sentenced to 159 years of imprisonment for a series of seven Hobbs Act robberies he committed over a two-month period when he was 18 and 19 years old.  Although Davis went to trial, his five co-defendants all pleaded guilty and received much shorter sentences.  Davis argues that his attorney rendered ineffective assistance by failing to pursue and negotiate a plea agreement with the government, and by failing to render adequate advice to him regarding whether to plead guilty or go to trial.  Davis contends he would have pleaded guilty if he had been advised properly.  Although the court of appeals concluded Davis could not show prejudice absent an allegation that the government had offered him a plea deal, Davis contends it was enough to show that his similarly situated co-defendants were able to negotiate plea agreements, suggesting that there is no reason the government would not have been willing to extend Davis the same benefits. 

Is it really so hard to make sense of AG Garland's federal capital punishment administration?

The question in the title of this post is my reaction to this lengthy new Washington Post article headlined "Justice Department standards on federal death penalty called confusing."  Here are excerpts (with a few points highlighted for commentary to follow):

The Justice Department’s disparate approaches in a pair of mass-killing cases is generating accusations that the Biden administration has failed to press for the elimination of capital punishment and is not applying clear standards in judging who, if anyone, should face the death penalty.

On Monday, federal prosecutors will begin the death penalty phase in the trial of Sayfullo Saipov, who was convicted last month on murder and terrorism charges for fatally hitting eight pedestrians with a truck on a New York City bike path in 2017.  That comes days after the Justice Department announced an agreement allowing Patrick Crusius, who pleaded guilty to killing 23 people and injuring 22 while targeting Mexicans during a mass shooting rampage at a Walmart in El Paso in 2019, to avoid the death penalty.  He faces life in prison....

Analysts said the Justice Department’s decisions in those cases and several others make it difficult to detect a consistent policy more than two years into the Biden presidency.  As a candidate, Biden made promises to push for legislation banning capital punishment over concerns about how federal executions are carried out and how prosecutors have disproportionately targeted racial minorities and the poor.

Biden has said little about the issue since taking office. Attorney General Merrick Garland has deauthorized 25 death penalty cases that were started under previous administrations, and the Justice Department has not authorized any new capital cases since he took over in 2021.

The Justice Department in 2021 and 2022 continued to back capital convictions in the face of appeals from Dylann Roof, a White man who fatally shot nine Black parishioners in Charleston, S.C., in 2015, and Dzhokhar Tsarnaev, who orchestrated, along with his older brother, a bombing that killed three at the Boston Marathon in 2013. Federal courts upheld both of their death penalty sentences.

Meantime, seven federal capital cases, including Saipov’s, remain active, Justice officials said.  Among them is the government’s prosecution of Robert Bowers, who is set to stand trial in April on charges related to the mass shooting that slaughtered 11 people at the Tree of Life synagogue in Pittsburgh in 2018.

“It’s really hard to say what’s going on,” said Monica Foster, a federal public defender representing Jairo Saenz, an MS-13 gang member who, along with his brother Alexi, are facing capital charges in connection with seven killings in Long Island in 2016.  Federal prosecutors announced in 2020 that they would seek the death penalty for both men; Foster, who recently took over Jairo Saenz’s defense, said she intends in March to ask Garland to withdraw the death penalty — a formal Justice Department process known as a deauthorization request.  Lawyers for Alexi Saenz said they, too, will seek deauthorization....

“They clearly are willing to walk back prior authorizations, so then it’s just a question of when?” said Nathan Williams, a former federal prosecutor who helped oversee Roof’s conviction in 2015.  “What’s distinguishing those cases, the ones they dismissed the notice on, from the cases of Bowers or Roof or Tsarnaev?  My guess is that they are less egregious cases. But then on the more egregious ones, are we seeing a general policy or a reflection of individual decisions on cases?”

The answer could have a direct bearing on another high-profile case, as the Justice Department is still deliberating over whether to pursue a capital case against Payton Gendron, a White man who faces 27 hate-crime and gun-related offenses in the fatal shooting of 10 Black people in a Buffalo grocery store last year.  Gendron live-streamed his attack and is alleged to have written a 180-page manifesto spouting white supremacist conspiracy theories and anti-Black and anti-Jewish rhetoric, while laying out plans for the assault.

“I was more than a little surprised when I saw what happened” in the Saipov bike path case, said Terrence Conners, a lawyer who represents victims’ families in the Gendron case.  The families have expressed split opinions over whether Gendron should face capital punishment. “The expressed policy of the Biden administration and the policy of Merrick Garland has been anti-death penalty,” Connors said. “With the horrible events in Buffalo and the racial animus and the predetermination [from Gendron], it may be a case that changes their minds.”

The Justice Department has long-standing policies governing how decisions on capital cases are made. The process, which typically takes more than a year, includes recommendations from a capital case committee in Washington, U.S. attorneys and the department’s Civil Rights Division, along with input from victims’ families, defense attorneys and community leaders.... Administration officials cautioned that because Garland has not authorized any new death penalty cases, it does not mean he is firmly opposed to doing so.  The officials spoke on the condition of anonymity, citing active legal cases....

Cassie Stubbs, director of the ACLU’s Capital Punishment Project, suggested Garland might be distinguishing between honoring decisions in capital cases made by prior administrations, while staking out his own legacy in not approving any new cases under his watch....

In announcing Crusius’s plea deal in El Paso, under which he faces 90 consecutive life sentences, assistant U.S. Attorney Ian Hanna acknowledged that the defendant has schizoaffective disorder, a signal that the government viewed the disability as a mitigating factor against capital punishment.

Crusius’s legal team had hired an outside expert, who made the diagnosis, and the Justice Department agreed with the findings, in part because the expert was someone that federal authorities also have consulted on cases and trusted, according to a federal government official who spoke on the condition of anonymity to discuss private deliberations. The Justice Department’s position in the Crusius case stands in contrast to the decision made by El Paso’s district attorney’s office, which is seeking the death penalty in the state’s murder case against Crusius, of Allen, Tex.

Twenty-three states have abolished the death penalty, while three — Oregon, Pennsylvania and California — have a moratorium against it. The number of state executions has fallen from 60 in 2005 to 18 in 2022, according to the Death Penalty Information Center. Texas has executed 581 people since 1977, nearly five times more than Oklahoma, the state with the second-most executions.

The lines I have emphasized from these excerpts make it not "confusing" for me to make sense of the current administration's approach to capital punishment.  For starters, two years in, AG Garland has not authorized any new federal capital cases. But, showing respect for the fact that Congress has not repealed the death penalty, he also has not announced that he would never seek a federal capital charge.  So why not seek capital punishment for Patrick Crusius?  In addition to the fact the mental health issues, the feds could be confident that a capital prosecution could be pursued, perhaps a lot more efficiently, by state prosecutors in Texas, a state with a considerable capital track record. (The Buffalo mass shooting, in a state without the death penalty, presents a harder question and it will be interesting to see AG Garland's capital decision there.)

Next, for ongoing cases, it makes perfect sense that AG Garland, exercising his prosecutorial discretion, would "deauthorize" capital prosecution in the "less egregious" cases but not in the "more egregious" cases.  I am not familiar with all the facts in all recent federal capital cases, but the idea that federal capital cases would keep moving forward in the most horrific mass killings and would not in less extreme cases seems entirely in keeping with a view of the death penalty being reserved for "the very worst of the worst."  Moreover, in mass killing cases, there are likely a greater number of victims and victims' family members who may express a strong interest in having the federal capital cases continued.

Of course, capital punishment abolitionists are always going to be grumpy when any capital case continues and capital punishment advocates are often going to be troubled when certain capital cases are not aggressively pursued.  But, the fact that AG Garland is taking a cautious case-by-case approach to capital cases does not make his standards inherently confusing or unprincipled.  Indeed, considering each case carefully on its own merits seems absolutely essential to the effective administration of justice in capital and non-capital cases.

"Against Prosecutors" and a lot of notable responses thereto

I recall reading a few years ago, but maybe not blogging about, I. Bennett Capers provocative 2020 essay titled simply "Against Prosecutors."  Here is part of the essay's introduction:

What would it mean to turn away from public prosecutors and not rely on the criminal justice system as the first responder to address social ills, such as mental illness and poverty (two of the main drivers of our prison industrial complex)?  More radically, what would it mean to turn away from state-controlled prosecution as the primary way to address crime? What would it mean to replace a system where prosecutors hold a monopoly in deciding which cases are worthy of pursuit with a system in which “we the people,” including those of us who have traditionally had little power, would be empowered to seek and achieve justice ourselves?

This Article attempts to answer these questions. It begins in Part I with the enormous, monopolistic power public prosecutors wield.  But this power is not inevitable. Indeed, public prosecutors are not even inevitable. This is the main point of Part II, which surfaces the rarely discussed history of criminal prosecutions in this country before the advent of the public prosecutor, when private prosecutions were the norm and in a very real sense criminal prosecutions belonged to “the people.”  Part II then demonstrates that our history of private prosecutions and the turn to public prosecutions is more than just a curious footnote, as this very history has, in turn, shaped criminal law and justice as we know it. Part III, in many ways the core of this Article, makes the argument for turning away from public prosecutors and restoring prosecution to the people.  It also returns to the question that motivates this Article: what benefits might accrue if victims had the option to pursue criminal charges through private prosecution or public prosecution? Part III argues there would be several benefits, including democratizing criminal justice and, quite possibly, reducing mass incarceration.

This essay is fresh in mind in part because I just saw an on-line symposium in which seven scholars have written their own essays in response (and with the author providing a final word). Here are links to these new works:

Angela J. Davis, "The Perils of Private Prosecutions"

Benjamin Levin, "Victims’ Rights Revisited"

Carolyn B. Ramsey, "Against Domestic Violence: Public and Private Prosecution of Batterers"

Corey Rayburn Yung, "Private Prosecution of Rape"

Jeffrey Bellin, "A World Without Prosecutors"

Jenia I. Turner, "Victims as a Check on Prosecutors: A Comparative Assessment"

Roger A. Fairfax Jr.. "For Grand Juries"

I. Bennett Capers, "Still Against Prosecutors"

Covering at "The Soapbox" some legal issues getting various folks in a lather

At "The Soapbox" section of The New Republic, Matt Ford has some recent coverage of a couple of hot legal issues that I have also been giving considerable attention.  Here are the full headlines, links and a key paragraph:

From last week, "When You’re Sentenced for a Crime That Even a Jury Agrees You Didn’t Commit: The Supreme Court might end an infuriatingly unjust practice in criminal sentencing."

While some lawmakers have proposed fixing the issue through legislation, Congress has yet to pass legislation to restrict or ban it. The U.S. Sentencing Commission is also considering changes to the federal sentencing guidelines that would limit acquitted-conduct sentencing in some forms in federal cases. McClinton told the court that those modest proposals should not prevent it from addressing the underlying constitutional issue, which is much broader and much more urgent. He instead aptly quoted from Scalia’s dissent nearly a decade earlier: “This has gone on long enough.” The court will announce in the coming months whether it will take up the case — and, perhaps, whether it agrees.

From this week, "The Second Amendment’s Legal Landscape Is Getting Weirder: The Supreme Court’s Bruen decision has given rise to some disturbing new interpretations of what constitutes the right to bear arms."

The 6–3 [Bruen] ruling announced a new test for lower courts to apply when reviewing gun laws in general, one that would make it far more difficult for many types of gun laws to survive judicial scrutiny.  The results have been predictable and far-reaching.

Last week, the Fifth Circuit Court of Appeals overturned a federal provision that prohibits people under restraining orders for domestic violence from possessing firearms.  The following day, a federal district court in Oklahoma struck down a similar provision that applied to people who unlawfully use or are addicted to a controlled substance.  The Third Circuit Court of Appeals parted ways with the other courts when it came to the provision’s application to people convicted of felonies.  But even that decision may not be long for this world.

"Public support for second look sentencing: Is there a Shawshank redemption effect?"

The title of this post is the title of this new article by multiple authors just published in Criminology & Public Policy.  Here is its abstract

Research Summary

Washington, DC has implemented second look sentencing.  After serving a minimum of 15 years in prison, those convicted of a serious offense committed while under the age of 25 years can petition a judge to take a “second look” and potentially release them from incarceration.  To examine both global and specific support for second look sentencing, we embedded experiments in a 2021 MTurk survey and in a follow-up 2022 YouGov survey.  Two key findings emerged.  First, regardless of whether a crime was committed under 18 years or under 25 years of age, a majority of the public supported second look sentencing.  Opposition to the policy was low, even for petitioners convicted of murder.  Second, as revealed by vignette ratings, respondents were more likely to support release when a petitioner “signaled” their reform (e.g., completed a rehabilitation program, received a recommendation from the warden) and had the support of the victim (or their family).

Policy Implications

The critique of mass imprisonment has broadened from a focus on the level of incarceration to the inordinate length of sentences being served by some prisoners.  Policies are being proposed to reconsider these long sentences and to provide opportunities for earned release.  Second look sentencing in DC is one of these reforms.  Our research suggests that many members of the public believe in a “Shawshank redemption” effect — that those committing serious crimes as a teenager or young adult can mature into a “different person” and warrant a second look, with the possibility of early release if they have earned it.  A key issue is likely to be how much weight is accorded to the preference of victims or their families in any release decision.

"Circumventing Mandatory Minimum Sentences Through Legal Representation – An Integrated Methods Study of Drunk Driving Violations"

The title of this post is the title of this notable new article now available via SSRN authored by Jonathan Hasson and Abraham Tennenbaum.  Here is its abstract:

Most common law nations impose minimum sentences for drunk driving.  Israel introduced a mandatory minimum law in 1995 requiring a two–year license disqualification regardless of intoxication level.  In theory, the new law allows minimal room for deviation. In practice, however, our study demonstrates that the law in action has diverged significantly from “blackletter law.”  Through an integrated historical, quantitative, and qualitative analysis that follows the law from its inception to the present day, we explore the root causes of this deviation and the mechanisms of circumvention.

Based on quantitative data collected on drunk driving cases between 2008 and 2022 and a survey of professionals specializing in traffic law, we highlight how the law’s perceived harshness has contributed to plea bargains becoming the normative means of circumventing the law.  This circumvention undermines the law’s original intention, that is, uniformity, proportionality, and equity in sentencing.  Multiple variables including appearances in court, legal representation, jurisdiction, and the judge’s identity result in comparably guilty defendants receiving different sentences.  Given these disparities, we propose replacing the current minimum sentence with a graduated minimum based on intoxication levels; limiting prosecutorial and judicial discretion; and providing court date reminders and public counsel to minimize harm to vulnerable populations.

Notable trifurcation ruling in federal capital case against Tree of Life mass murderer

The criminal law professor listserve brought to my attention the interesting capital criminal procedure story coming this week from federal court in Pittsburgh.  This local article, headlined "Judge rules Tree of Life death penalty sentencing would occur in 2 phases," provides the basics:

If Robert Bowers is found guilty later this year of killing 11 worshippers inside a Squirrel Hill synagogue in 2018, his sentencing will be broken into two separate phases, a judge ruled this week.  The trial for Mr. Bowers, accused in the Oct. 27, 2018, mass shooting at the synagogue where three congregations — Tree of Life or L’Simcha, Dor Hadash and New Light — were holding Shabbat services, is set to begin in April.

Eleven were killed in the shooting: Joyce Fienberg, Richard Gottfried, Rose Mallinger, Jerry Rabinowitz, David and Cecil Rosenthal, Bernice and Sylvan Simon, Daniel Stein, Melvin Wax and Irving Younger. Two other worshippers and several police officers were injured.

Mr. Bowers’ defense team had sought to split the sentencing phase of the trial — if there is a sentencing phase — into two distinct segments, which would ultimately make the federal case against Mr. Bowers a three-part trial. The trial itself will take place, after which a jury will decide upon Mr. Bowers’ guilt. If he is found guilty, there will be two parts to the sentencing phase.  In the first, jurors will consider whether federal prosecutors have proved that Mr. Bowers is eligible for the death penalty, which the government is seeking. In the second, jurors will decide upon a sentence for Mr. Bowers.

Most notably, the decision by U.S. District Judge Robert J. Colville means that, if there is a sentencing phase, jurors won’t hear victim-impact statements until after they’ve decided if Mr. Bowers is eligible for the death penalty. Defense attorneys had sought this split sentencing, noting that otherwise “the jury will hear the highly emotional and prejudicial victim impact evidence in the same proceeding in which they consider whether the elements of a federal capital crime have been proven.”

In short, defense counsel feared jurors would be unduly swayed to decide Mr. Bowers was eligible for the death penalty if they heard the victim impact statements before making that decision. Federal prosecutors, in expressing opposition to splitting the sentencing phase, noted that the law does not require such a distinction. Plus, they noted, separating the sentencing phases “would unduly complicate the penalty phase, introduce significant risk of jury confusion and run counter to the court’s interest in judicial economy.”

Judge Colville ultimately agreed with the defense, ruling sentencing will be broken into two parts “in an abundance of caution.” He noted that while the court is not required to split the sentencing phase, it has the discretion to do so. 

US District Judge Colville's 14-page opinion granting the defendant’s "Motion to Trifurcate" is available here:

Download USA_v._BOWERS__Docket_No._2_18

"Criminal Proof: Fixed or Flexible?"

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

Should we use the same standard of proof to adjudicate guilt for murder and petty theft?  Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law.  This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes.  I reject consequentialist arguments for a radically flexible standard of proof, instead defending a modestly flexible approach on non-consequentialist grounds.  The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments.  This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society.

If you never tire of acquitted conduct talk, here is a podcast episode for you

In this post from the summer, I highlighted the great new podcast created by Doug Passon, a defense attorney and documentary filmmaker, called "Set for Sentencing."  Doug continues to produce a lot of terrific content each week, all posted at this archive.  I am  putting another plug for his efforts because I had the honor of appearing in his the latest episode, "PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences." 

Here is how Doug Passon sets up this nearly 90-minute podcast:

In a perfect world, the presumption of innocence is sacrosanct.  If you are found not guilty by a jury, common sense and the constitution dictate that acquitted conduct should not later be used to enhance your sentence on other charges.  But in federal court, it is not only possible, but commonplace to increase punishment based on acquitted, uncharged and dismissed conduct. The good news is, that might be changing soon.

Helping us get set for sentencing, Prof. Doug Berman and Mark Allenbaugh to talk about the proposed amendment to the United States Sentencing Guidelines on acquitted conduct. Prof. Berman is not only a federal sentencing expert, but wrote the Amicus brief for U.S. v. Daytona McClinton, an “acquitted conduct” case currently pending Cert. at the Supreme Court. Of course, we all know Mark Allenbaugh (www.sentencingstats.com) who completes what turns out to be an “all Allenbaugh January”.

Warning: this episode is not for the faint of heart. No, there’s no sex, drugs, or rock n’ roll. There are probably not even that many f-bombs dropped by Doug. It’s just a really, really, really deep dive into the inner machinations of our broken federal sentencing process. So strap in, and let’s get Set for Sentencing!

Prior related posts:

• New podcast for all sentencing fans (and especially defense attorneys)
• Another plug for a podcast for all sentencing fans (and especially defense attorneys) 

Effective coverage of compassionate release challenges at the state level

Since the First Step Act made it much easier for federal prisoners to get their motions for sentence reductions before judges, discussion and debate (and litigation) over the federal approach to so-called compassionate release has been robust.   And, on-going consideration by the US Sentencing Commission of changes to its guidelines for these sentence reductions ensures that the federal debate will remain robust for the foreseeable future.

But, helpfully, the folks at Bolts have been doing the important work of making sure we do not lose sight of how these sorts of issues play out in state prisons systems.  Most recently, Bolts published an extended piece on these topics focused on Oregon, and it has published prior pieces focused on California and New York.  Here are the extended headlines of these pieces, along with links:

By Piper French, "In Oregon’s Prisons, Terminally Ill People Are Left with Little Recourse: Proposed legislation would ease the extraordinarily difficult road that incarcerated Oregonians face in securing compassionate release."

By Piper French, "California Passes Bill to Expand Prison Releases for Terminally Ill People: Few people leave prison under California’s compassionate release program, but a new measure could allow more incarcerated people to live out their final days at home."

By Victoria Law, "Prison Officials Routinely Deny Hearings to Terminally Ill New Yorkers: The frequent refusal to send medical parole cases to the state board has frustrated advocates and raises questions about the murky criteria preventing most sick people from making their case."

"Glass Box Artificial Intelligence in Criminal Justice"

The title of this post is the title of this notable new paper available via SSRN authored by Brandon Garrett and Cynthia Rudin. Here is its abstract:

As we embrace data-driven technologies across a wide range of human activities, policymakers and researchers increasingly sound alarms regarding the dangers posed by “black box” uses of artificial intelligence (AI) to society, democracy, and individual rights.  Such models are either too complex for people to understand or they are designed so that their functioning is inaccessible.  This lack of transparency can have harmful consequences for the people affected.  One central area of concern has been the criminal justice system, in which life, liberty, and public safety can be at stake.  Judges have struggled with government claims that AI, such as that used in DNA mixture interpretation, risk assessments, facial recognition, and predictive policing, should remain a black box that is not disclosed to the defense and in court.  Both the champions and critics of AI have argued we face a central trade-off: black box AI sacrifices interpretability for predictive accuracy.

We write to counter this black box myth.  We describe a body of computer science research showing “glass box” AI that is interpretable can be more accurate.  Indeed, criminal justice data is notoriously error prone, and unless AI is interpretable, those errors can have grave hidden consequences.  Our intervention has implications for constitutional criminal procedure rights.  Judges have been reluctant to impair perceived effectiveness of black box AI by insisting on the disclosures defendants should be constitutionally entitled to receive.  Given the criminal procedure rights and public safety interests at stake, it is especially important that people can understand AI.  More fundamentally, we argue that there is no necessary tradeoff between the benefits of AI and the vindication of constitutional rights. Indeed, glass box AI can better accomplish both fairness and public safety goals.

Different approaches to death penalty administration from different governors

When it comes to the administration of the death penalty, governors tend to have a huge (and outsized?) role at the state level.  Historically, that role has been exercised through grants of executive clemency, though it can also shape in various ways how death sentencing operates or how executions are conducted.  With the start of a new year, I have seen a number of notable new stories about a number of governors seeking to impact how their states approach capital punishment.

From the AP, "Arizona executions on hold amid review ordered by governor":

Arizona’s attorney general has put a hold on executions in the state until the completion of a review of death penalty protocols ordered by the new governor due to the state’s history of mismanaging executions.

The review ordered Friday by Gov. Katie Hobbs, Arizona’s first Democratic governor since 2009, came as the state’s new Democratic attorney general, Kris Mayes, withdrew her Republican predecessor’s request for a warrant to execute a convicted killer who initially asked to be executed but later backed out of that request.  While Hobbs’ order didn’t declare a moratorium on the death penalty, Mayes will not seek court orders to execute prisoners while the review is underway, said Mayes spokesperson Richie Taylor.

From the Nashville Scene, "Bill Lee Tries to Keep Lethal Injection Alive: Rather than reconsidering capital punishment, the governor will make leadership changes after a damning investigation into Tennessee executions":

In April of last year, the governor — then the media, then the public — learned that the state had bungled drug testing in the hours leading up to the planned execution of 72-year-old Oscar Franklin Smith. Lee issued a last-minute reprieve for Smith and, days later, suspended executions through 2022, citing “technical issues” with the state’s lethal injection process....

On Jan. 9, Frank Strada — previously the deputy director of Arizona’s Department of Corrections — assumed the role of commissioner at the Tennessee Department of Correction with an explicit mandate to bring back Tennessee executions.

From Florida Politics, "Gov. DeSantis calls for juror ‘supermajority’ to suffice in death penalty cases":

Gov. Ron DeSantis started out his week with the Florida Sheriff’s Association (FSA), where he discussed his desire to allow juries to administer the death penalty via a supermajority vote, rather than requiring unanimity.  “Fine, have a supermajority. But you can’t just say one person (can decide against the death penalty). So maybe eight out of 12 have to agree? Or something. But we can’t be in a situation where one person can just derail this,” DeSantis said at the group’s winter conference in St. Johns County, discussing death penalty verdicts left unachieved because of a rogue juror.

DeSantis told the FSA Monday that he wants a “supermajority” to constitute a sufficient vote count for execution. The pitch comes in the wake of the Parkland killer not getting the death penalty because of what DeSantis called one person’s “idiosyncratic” approach to the proceedings, though there ultimately were three votes not to execute the murderer.

US Sentencing Commission provides "Public Data Briefing: Proposed 2023 Criminal History Amendment"

Among many notable and consequential proposed amendments to the federal sentencing guidelines, the US Sentencing Commission has noticed a number of proposals connected to criminal history issues.  And today the Commission posted here a "Public Data Presentation for Proposed Criminal History Amendment."  Here is how this release (which includes a video and associated slides) is described on the USSC website:

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines.  Commission staff prepared a data presentation to inform public comment on a proposed amendment related to criminal history and the Commission’s implementation of 28 U.S.C. § 994(j).  This briefing presents data on following aspects of criminal history to help inform public comment on the three-part proposed amendment:

• status points;
• offenders with zero criminal history points; and,
• simple possession of marijuana offenses.

"The Problem with Capital Pleas"

The title of this post is the title of this recent paper authored by William W. Berry III available via SSRN. Here is its abstract:

In United States v. Jackson, the Supreme Court recognized the importance of protecting an individual's jury trial rights in capital plea bargaining.  With the subsequent Brady trilogy, however, the Court’s plea bargaining doctrine migrated away from Jackson and accepted pleas in capital cases as long as the defendant had counsel.

Over the past twenty years, the capital punishment landscape has significantly narrowed, with only twenty new death sentences a year, most coming from the few counties that have the economic resources to pursue the death penalty. The decreased likelihood of receiving a death sentence could, in theory, convince more capital defendants to go to trial as opposed to entering plea deals, especially as juries, even in Texas, are increasingly disinclined to impose death sentences.  But the risk of execution remains too heavy a thumb on the scale.  The effect of this dynamic is that prosecutors essentially have the power to impose mandatory LWOP sentences in homicide cases, simply by threatening to pursue the death penalty.

As such, this essay makes the case that, taken together, the values of the Fifth (right not to plead guilty), Sixth (trial by jury, right of confrontation, right to present witnesses), and Eighth Amendments (right to heightened scrutiny in capital cases) should lead the Court, legislatures, or prosecutors themselves to eliminate plea agreements in capital cases, particularly those that result in LWOP sentences.  Such bargained sentences almost certainly reflect the coercion of the prosecutor in an unequal bargaining dynamic rather than a voluntary acceptance of a proportional punishment for one’s crime.

The look of a federal capital moratorium(?): prosecutors not seeking death penalty for El Paso Walmart shooter

As detailed in this Wall Street Journal piece, the "Justice Department won’t seek the death penalty for the man accused of killing 23 people in 2019 at a Walmart in El Paso, Texas, federal prosecutors said in a Tuesday court filing."  Here is more:

Patrick Crusius faces 90 federal charges for his alleged role in one of the deadliest mass shootings in U.S. history.  Of those charges, 45 have been deemed hate crimes, or crimes motivated by racial, religious, national-origin, sexual, gender or disability bias. Mr. Crusius, 21 years old at the time, is accused of traveling to the Texas border city to target Latinos in the attack. Nearly two dozen people were injured in the shooting.

Jury selection is expected to begin in his federal case in January 2024.  Mr. Crusius, now 24, was also indicted on state charges of capital murder and could face the death penalty if convicted. The state case would proceed after the federal case is done....

Months after taking office in 2021, Attorney General Merrick Garland ordered a nationwide halt to federal executions while he reviewed policies and protocols put in place by the Trump administration that led to the highest rate of federal executions in more than a century.  President Biden has said he would work to end federal executions.

The Justice Department last year chose to continue the pursuit of the death penalty against an alleged terrorist charged with killing eight people in New York City in 2017.  The Trump administration initially sought the death penalty against Sayfullo Saipov, who prosecutors said was inspired by Islamic State to carry out the Manhattan attack. Mr. Saipov’s attorneys asked Mr. Garland to withdraw the death penalty from the case but were turned down.

Justin Underwood, an attorney representing the family of Walmart shooting victim Alexander Hoffman, said they were disappointed by the Justice Department’s decision. “They’re disappointed the U.S. government won’t seek the death penalty on a mass murderer who drove 10 hours to seek out and kill Hispanic and Mexican people,” Mr. Underwood said. “If this guy doesn’t qualify for the death penalty, why on earth do we even have a federal death penalty statute?”

Mr. Underwood questioned why the federal government continued to pursue the death penalty in Mr. Saipov’s case in New York, but not in the Walmart shooting.  Mr. Hoffman’s widow and his two sons are now looking to the state’s case for justice, Mr. Underwood said.  “This might not be the Christian thing for me to say, but some people need to be killed and he certainly qualifies,” Mr. Underwood said. “I just put my faith in the state of Texas to seek justice in this case.”

Intriguingly, this Reuters article about this prosecutorial charging decision makes mention of a fact not noted by the WSJ that might be part of the story: "When he was taken into police custody minutes after the shooting, Crusius was in a psychotic state and treated with anti-psychotic medication, according to mental health professionals employed by the jail, a court filing said."  Mental health issues might well have influenced federal prosecutors here; Crusius's defense attorneys hoped it would accourding to this 2020 AP piece:

Lawyers for a man charged with shooting scores of people in a racist attack at a Texas Walmart say their client has diagnosed mental disabilities that should be a “red flag” for federal prosecutors considering whether to seek the death penalty.

Patrick Crusius “has been diagnosed with severe, lifelong neurological and mental disabilities” and was treated with antipsychotic medication following his arrest moments after the massacre in El Paso, his attorneys wrote in a court filing.

US Supreme Court relists latest cases seeking review of acquitted conduct sentencing

Regular readers surely recall some prior posts about the McClinton case before the US Supreme Court raising issues about the use of acquitted conduct at sentencing.  As detailed before (and linked below), I had the pleasure last year of working with great lawyers at Squire Patton Boggs to file an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.  (I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.)

After various delays and more delays, the McClinton case (as well as a number of others raising acquitted conduct issues) was finally considered at last Friday's SCOTUS conference.  I was a bit worried when last week's SCOTUS cert grant list did not include the case, but I was hopeful that we would learn today that the McClinton case was relisted and the docket sheet now reflects that reality.  I am pretty sure that all the other acquitted conduct cases considered in the last SCOTUS conference were also relisted.

More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court's decision not to grant review.  But relisting is also sometimes a precursor to a later granting of cert.  So, as I have said before, I am hopeful, thought still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing. 

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• A reminder of why "acquitted conduct" sentencing enhancements should be seen as a constitutional abomination 
• Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."
• Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing 
• "Acquitted. Then Sentenced."
• NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct 
• Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing? 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements 

UPDATE:  John Elwood at SCOTUSblog has this new post noting the acquitted conduct relists, "Acquitted-conduct sentencing and 'offended observer' standing."

US Sentencing Commissions publishes proposed guideline amendments and issues for comment

This afternoon, the (finally) fully loaded US Sentencing Commission held a public meeting in which it discussed and published proposed guideline amendment on a number of topics. This official press release provide this summary (with links from the original):

The United States Sentencing Commission voted today to publish for comment proposed guideline amendments on several topics, including revisions that would implement two significant changes made by the First Step Act of 2018.

The First Step Act authorized defendants for the first time to file a motion for compassionate release, without having the Director of the Bureau of Prisons make a motion. Today’s proposed amendment would add this new procedural option.   The amendment would also revise the circumstances identified by the Commission as “extraordinary and compelling reasons” for purposes of a motion for compassionate release.

“Commission data have indicated that in recent years — over the COVID-19 pandemic and without a Commission quorum — the district courts have granted compassionate release at varying rates.  It is my sincere hope that our work today and in the coming months brings greater clarity to the federal courts and more uniform application of Compassionate Release across the country,” said Judge Carlton W. Reeves, Chair of the Commission.

The First Step Act also expanded “safety valve” eligibility for relief from mandatory minimum penalties to certain offenders with more than one criminal history point.  The Commission proposed changes today that would update §5C1.2 and amend the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.

Consistent with its responsibility to respond to major legislation affecting federal crimes, the Commission also voted to publish a proposed amendment implementing the Bipartisan Safer Communities Act — firearms legislation that passed after the school shooting in Uvalde, Texas.  The Act directed the Commission to increase penalties for certain firearms offenders, particularly straw purchasers. 

The Commission also published a package of amendments relating to the criminal history rules, including reconsideration of “status” points for defendants who commit the instant offense while under another criminal justice sentence, the treatment of defendants with zero criminal history points, and the impact of simple possession of marihuana offenses.

The amendment also presents an alternative to the “categorical approach,” a complex legal test courts use to determine whether a conviction qualifies an offender for enhanced penalties under the guidelines. “I have heard consistently from judges throughout the nation that the categorical approach should be reconsidered. Judges are far too often flummoxed by how to apply the categorical approach.  This is certainly a matter that the Commission will continue to discuss and one that warrants a public hearing,” Judge Reeves said.

The Commission also asked for comment on whether the guidelines adequately address certain sexual abuse offenses, how it should address important circuit court conflicts, and whether the guidelines appropriately account for acquitted conduct, among other matters.

“The Commission received more than 8,000 letters of public comment on our tentative priorities in October,” said Reeves, “and we again look forward to robust comment in response to these proposed amendments.” 

The proposals are subject to a 60-day public comment period running through mid-March.  The Commission will hold public hearings in February and March to receive expert testimony on the amendments proposed at today’s meeting.  The events will stream live on the Commission's website.  A data briefing on today’s proposed criminal history amendments will also be made available in the coming weeks.

Notably, this overview of proposed amendments only provides a partial account of all that sentencing fans should find interesting in the new proposed amendment. For example, the proposals also include a provision to "amend §1B1.3 to add a new subsection (c) providing that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction."

I hope to find timein the coming days and weeks to comment in various ways on these amendments. And I am hopeful that we will see lots of commentary and analysis from lots of sources and perspectives as the new USSC gears up finalize the first set of guideline amendments in nearly 5 years.

Wondering about the impact of AG Garland's new charging and sentencing memos

Remarkably, it has already been almost a month since Attorney General Merrick Garland issued new charging and sentencing policy guidance for Justice Department prosecutors through two memoranda (basics here).  These memos received some press attention (and some blog commentary) when first issued in mid December.  But, somewhat surprisingly, I have not since seen all that much continued commentary or further echoes concerning AG Garland's instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses" and other notable aspects of these notable memos. 

Of course, with the holidays and all, it is surely too early to be expecting to see the full impact or fall out from these DOJ memos.  Still, given that the instructions in these memos impact every federal criminal case in some way, I am continuing to expect these memos to generate notable cases and controversies before too long.  And, while waiting, I have now had the honor and pleasure of working with former ENDY US Attorney Alan Vinegrad to write up a short overview of the memos for coming publication in the February 2023 issue of the Federal Sentencing Reporter.  The draft of that overview is available for download below, and it starts this way:

On December 16, 2022, United States Attorney General Merrick Garland issued long-awaited guidance setting forth the Department of Justice's latest charging, plea and sentencing policies. He did so in the form of two memos: one providing general policies for all criminal cases (the "General Memo"), and a second providing additional policies for drug cases (the "Drug Memo").

These latest DOJ policies are generally consistent in many respects with past policies issued by Attorney General Garland's predecessors, but they break new ground (or revive previously-rescinded policies) in several areas: mandatory minimum statutes, statutory sentencing enhancements, the crack/cocaine sentencing disparity, and pre-trial diversion.  All of these new policies tack in the same direction: ameliorating the harshness of the modern-era federal sentencing regime.

Download Vinegrad and Berman for FSR on new DOJ policies

Noticing the shape of the federal death penalty circa 2023

Just under 20 years ago, in the inaugural issue of the Ohio State Journal of Criminal Law, Carol Steiker and Jordan Steiker authored this fascinating little article imagining the death pemalty circa 2022.  The article's title, "Abolition in Our Time," reveals that the piece did not perfectly predict the future.  But the piece did have this somewhat prescient take on how "the politics of the death penalty have shifted":

Prominent politicians in both parties are willing to oppose the death penalty publicly, though very few make it a political priority. Many such leaders also distinguish between the importance of retaining the death penalty for cases in which "vital national interests" are at stake — the war on terrorism — and cases involving ordinary state law enforcement.

The Steikers' article came to mind for me today as I read this new New York Times piece discussing the current state of the federal death penalty. The piece is headlined "Suspect in Bike Path Killing Faces First Death Penalty Trial Under Biden," and here are excerpts:

On Halloween 2017, Sayfullo Saipov plowed a rented pickup truck down Manhattan’s crowded West Side bicycle path, smashing into pedestrians and cyclists, killing eight people and injuring more than a dozen, the authorities said.

Soon after Mr. Saipov was charged, President Donald J. Trump tweeted, “SHOULD GET DEATH PENALTY!” And his attorney general later directed prosecutors to seek execution if Mr. Saipov was convicted.

Last year, Mr. Saipov’s lawyers asked President Biden’s Justice Department to withdraw that order. Mr. Biden, after all, had campaigned against capital punishment. But his attorney general, Merrick B. Garland, denied the request, and on Monday, Mr. Saipov’s trial is scheduled to begin in Federal District Court in Manhattan — the first federal death penalty trial under the Biden administration.

Mr. Garland’s decision to continue pursuing the death penalty for Mr. Saipov, an Uzbek immigrant, suggests a nuanced approach, one in which he has been reluctant to withdraw the threat of capital punishment in one type of case in particular: terrorism-related offenses....

Since taking office nearly two years ago, Mr. Garland has not sought capital punishment in any new case and indeed has declared a nationwide moratorium on federal executions. The Justice Department has also withdrawn directives issued by previous administrations seeking the death penalty against 25 federal defendants, according to court records and the department’s data.

At the same time, the department has defended appeals of the death sentences imposed during President Barack Obama’s administration on Dzhokhar Tsarnaev, the Boston Marathon bomber, and Dylann S. Roof, the white supremacist who killed nine members of a Black church in South Carolina....

A spokesman for the Justice Department said that as a matter of policy it does not offer public reasons for decisions to withdraw death penalty directives. Nicholas Biase, a spokesman for the U.S. attorney’s office in Manhattan, and David E. Patton, a lawyer for Mr. Saipov, declined to comment on the case.

But some lawyers said a pattern had emerged: None of the 25 defendants for whom the Justice Department has withdrawn death penalty requests were charged in a terrorism-related offense.  “Early on, it became clear that notwithstanding the statements made by both the president and the attorney general, that there was going to be this sort of carve-out around terrorism,” said Anthony L. Ricco, a veteran death penalty defense lawyer in New York.

Quite a remarkable account of one January 6 rioter's sentencing story

The Washington Post has this very lengthy piece telling a remarkable story about the life and history of one of the January 6 rioters and where his sentencing fit in.  The piece is fully titled "Prison or mercy? A Jan. 6 rioter weighs his sins and confronts his fate. Eight years before he stormed the Capitol, Jake Peart acted with ‘unfathomable’ grace. A judge must decide if it matters." The long piece is worth the time, and here is part of its start:

Nearly 18 months had passed since he stormed the U.S. Capitol and sought to halt the inauguration of a duly elected president. Now the time had come for the federal government to pass judgment on Jake Peart.

The sentencing hearing was taking place via video, a necessity given the sheer number of defendants — more than 950 and counting — who, like Peart, had been charged with crimes related to the riot.

Alone in his living room and free from custody as he awaited sentencing, Peart listened as a federal prosecutor summarized his offense: The 47-year-old real estate agent, husband and father of five had blown past police officers being “attacked violently,” the blaring of alarms and the smell of tear gas emanating from the seat of American democracy. Once inside the Capitol, he had banged on a broken piece of furniture, yelling, “This is our house!”...

Peart was one of thousands of American citizens who on Jan. 6, 2021, sought to overturn the 2020 election on behalf of an angry and defeated President Donald Trump. Collectively, the mob’s actions were “egregious, outrageous, dangerous,” the judge told Peart, calling them “a direct attack on the rule of law and democracy as we know it.”

But each of the insurrectionists in the Capitol that day was also an individual. And so before the judge delivered his decision, he described a letter in Peart’s case file from a woman who in 2013 was driving home drunk from a bar when she struck and killed Peart’s 28-year-old sister. “A truly remarkable letter,” the judge called it.

In it, Andrea Milholm Jung described how the “mercy and love” that Peart had shown her after the accident and while she was in prison had helped her to find redemption. “Put yourself in Mr. Peart’s shoes and ask yourself if you would do the same,” she wrote to the judge. “It is a question I ask myself every single day.”

Peart sat quietly in his leather chair, his Bible at his side, awaiting his fate. From his window he could see the soaring peaks of southern Utah’s red-rock desert mountains.

The entire hearing had lasted a little more than an hour and now boiled down to just a few difficult questions: Was Peart truly repentant? Did he grasp the severity of his crime? Did he deserve prison or mercy?

You be the judge: what federal sentence for Varsity Blues college admission scandal mastermind Rick Singer?

Wednesday afternoon brings a high-profile federal sentencing in Boston federal court, and I'd be interested in predictions (and/or recommendations) as to the sentence to be given to the man behind the Varsity Blues college admission scandal.  This lengthy NPR piece provides a preview, and here are excerpts:

The mastermind of the Varsity Blues college admissions scandal, Rick Singer, is set to be sentenced Wednesday in Boston for a scheme that federal prosecutors say is "staggering in its scope and breathtaking in its audacity." Prosecutors want him sentenced to six years in prison, while Singer is asking the judge to let him off with little or no prison time.

His sentencing is the capstone in the years-long investigation and prosecution of Singer and more than 50 co-conspirators, and puts the focus back on what has and has not changed since the scandal broke open in March 2019.

Singer, 62, pleaded guilty to raking in some $25 million by selling what he liked to call "a side door" into highly selective universities such as Yale, Georgetown and USC to dozens of clients, from actresses Felicity Huffman and Lori Loughlin to business titans and big-shot lawyers.  "We help the wealthiest families in the U.S. get their kids in school," Singer bragged as he pitched one of his clients on a call recorded by the FBI. "They want guarantees. They want this thing done."

His scheme involved, for instance, bribing college coaches to take students as athletic recruits, even if they were mediocre or had never even played the sport.  Singer would just make up a totally fake resume, complete with a student's face photoshopped onto an image of a real athlete.  His menu of cheating services also included fixing students' wrong answers on their college admissions tests or having someone take the test in their place....

Of the more than 50 parents, coaches and others caught up in the scheme, more than a third were sentenced to three months or less in prison.  Roughly a quarter of the defendants got no time at all behind bars, including five people who cooperated with prosecutors.

Singer is hoping his cooperation will earn him leniency, too. "He believes he will get some time, but I don't think he believes it will be a lot of time," says Bill Blankenship, who lives next door to Singer in a mobile home park in St. Petersburg, Fla.... "I have lost everything," Singer wrote in court filings pleading for leniency. He says he's "woken up every day feeling shame, remorse and regret."

"He is already serving a life sentence of sorts," his lawyers say, "vilified by the public, and ostracized, living an isolated, lonely life," and having lost "the trust and respect of family, friends."  Despite pleading guilty to conspiracy to commit racketeering, conspiracy to commit money laundering, obstruction of justice and conspiracy to defraud the United States, Singer's lawyers have asked the court to sentence him to home confinement instead of prison.  Or if Singer must serve time, his lawyers suggest, he should get no more than six months behind bars.

The lawyers also say Singer deserves credit for his "crucial" cooperation, helping prosecutors nab his former clients. He secretly recorded hundreds of phone calls with some 30 co-conspirators, methodically and craftily getting them to incriminate themselves by acknowledging the payments and bribes they paid as the tape rolled.  His ruse was to tell them that his fake charitable foundation that he used to launder bribe money was being audited by the IRS....

"Prosecutors made a deal with the devil in this case, but they always do," says former federal Judge Nancy Gertner. What makes this case unusual is that the deal is not with low-level co-conspirators ratting out the kingpin, it's with the kingpin himself, flipping on his former clients.  "I think this is an extraordinarily difficult sentencing," Gertner says, "because on the one hand, Singer's cooperation is enormously important. And you get people to cooperate by telling them they will get a benefit in their sentencing."  On the other hand, she notes, as the kingpin who masterminded the whole scheme and used more than $15 million of his clients' bribe money for his own benefit, Singer would be considered "more culpable than anyone — his cooperation notwithstanding."

Indeed, prosecutors argue Singer is most culpable "by leaps and bounds" and his sentence must be longer than the longest one to date, which was the two-and-a-half years imposed on former Georgetown University tennis coach Gordon Ernst, who accepted nearly $3.5 million in bribes in cases of at least 22 students.

Prosecutors also argue that while Singer's cooperation was "singularly valuable," it was also "singularly problematic." After he was arrested for his con, Singer actually tried to con prosecutors, too.  At the same time he was vowing to cooperate to nab other targets, he tipped off at least six co-conspirators, warning they were under investigation and that if they got a call from him, they should assume they were being recorded and deny any wrongdoing.

It's partly why prosecutors are not recommending more of a reward for Singer's cooperation.  The six years they're calling for is just slightly below the range of 6 ½ to 8 years set by the sentencing guidelines that the court has accepted.

I will likely be on a plane when this interesting sentencing takes place, so I am not sure when I will get a chance to report on the outcome.  But I am inclined to predict that the judge here will land on a prison sentence between the recommendations of the parties, probably in the three- or four-year range.

A few of many prior posts on other defendants in college admissions scandal:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal
• Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal
• Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal 
• Napa Valley winemaker gets five months of imprisonment, the longest sentence so far in college admissions scandal
• Catching up with another round of sentencings in "Operation Varsity Blues"
• Reviewing the sentencing dynamics as more parents get (minimal) prison time in "Operation Varsity Blues" college admissions scandal 
• Nine-month federal prison term (the longest yet) given to former CEO who paid nearly $1 million to benefit four kids in college admission scandal 
• Felicity Huffman sentenced to 14 days in college bribery scandal 
• Via video, Lori Loughlin and her husband get agreed fixed short prison sentences in college admission scandal 
• Trial penalties lead to longest (but still not so long) sentences for two Varsity Blues defendants 
• Longest prison sentence yet in Varisity Blues case, 30 months, given to Georgetown tennis coach

UPDATE: This CNN report on the sentencing, headlined "College admissions scam mastermind sentenced to 3.5 years in federal prison," documents that my prediction was actually pretty sound.  (If only there was a fantasy sentencing league instead of the sports leagues in which my outcome predictions fare much worse.)

Oregon Supreme Court gives retroactive effect to Ramos Sixth Amendment jury unanimity rule (two months after Louisiana Supreme Court refused to do so)

An opinion from the Oregon Supreme Court on this last working day of 2022 provides a notable bookend to the echoes of the Supreme Court's 2020 Ramos holding that the Sixth Amendment requires that a jury reach a unanimous guilty verdict to convict a defendant of a crime.  This local article reports on the basics and its import: 

Hundreds of felony convictions became invalid Friday after the Oregon Supreme Court struck down all non-unanimous jury verdicts reached before the practice was banned two years ago.

The retroactive ruling applies to all split-jury convictions reached during the 86-year stretch when Oregon was one of only two states, alongside Louisiana, to allow such verdicts.

In a concurring opinion, Justice Pro Tempore Richard Baldwin described the authorization of 10-2 and 11-1 jury verdicts in 1934 as a “self-inflicted injury” that was intended to minimize the voice of nonwhite jurors.

“We must understand that the passage of our non-unanimous jury-verdict law has not only caused great harm to people of color,” Baldwin wrote. “That unchecked bigotry also undermined the fundamental Sixth Amendment rights of all Oregonians for nearly a century.”

Voters approved Oregon’s non-unanimous jury system after a jury handed down a light sentence in a 1933 gangland murder trial, spurring racist and xenophobic newspaper coverage that blamed the compromise verdict on immigrant jurors, The Oregonian/OregonLive previously reported.

The U.S. Supreme Court outlawed divided verdicts in its landmark Ramos v. Louisiana decision in April 2020, but the order only applied to open cases and convictions that were actively being appealed when the ruling came down.

The ruling left the door open for states to make their own laws applying it retroactively. The Oregon legislature did not take that action, but people convicted by split juries began pursuing a retroactive ruling at the Oregon Appeals Court last year.

The Oregon Department of Justice says the Ramos ruling vacated more than 470 convictions with active appeals, meaning that prosecutors were required to essentially reboot each case from the beginning and either pursue a new trial, cut a plea deal or dismiss the charges.

The new state Supreme Court ruling means county district attorneys will have to make a similar decision for cases where the defendant had already exhausted a final appeal.

There are approximately 300 people, mostly in state prison, with exhausted appeals who have filed new litigation because they were convicted by a non-unanimous jury before the Ramos decision, according to Aliza Kaplan, a Lewis & Clark law professor and leader of the Criminal Justice Reform Clinic.

The full opinions from the Oregon Supreme Court in Watkins v. Ackley are available here.

Notably, Louisiana was the only other state with a history of non-unanimous criminal jury verdicts, and a couple of months ago its state Supreme Court decided against giving retroactive effect to Ramos (as this local press piece details).  The full opinion from the Louisiana Supreme Court in Louisiana v. Reddick are available here.

Fingers crossed that SCOTUS might review acquitted conduct sentencing enhancements

Regular reader may vaguely recall some of my prior posts about the McClinton case before the US Supreme Court raising issues about the use of acquitted conduct at sentencing.  As I have detailed in posts months ago (and linked below), over the summer I had the pleasure of working with great lawyers at Squire Patton Boggs to file an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.  (I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.)

After various delays, it appears that this case will finally be considered at next week's SCOTUS conference.  And that reality likely account for this new AP article headlined "Supreme Court asked to bar punishment for acquitted conduct."  Here are excerpts:

A jury convicted Dayonta McClinton of robbing a CVS pharmacy but acquitted him of murder. A judge gave McClinton an extra 13 years in prison for the killing anyway. In courtrooms across America, defendants get additional prison time for crimes that juries found they didn’t commit.

The Supreme Court is being asked, again, to put an end to the practice. It’s possible that the newest member of the court and a former federal public defender, Justice Ketanji Brown Jackson, could hold a pivotal vote. McClinton’s case and three others just like it are scheduled to be discussed when the justices next meet in private on Jan. 6.

Sentencing a defendant for what’s called “acquitted conduct” has gone on for years, based on a Supreme Court decision from the late 1990s. And the justices have turned down numerous appeals asking them to declare that the Constitution forbids it.

The closest the court came to taking up the issue was in 2014, when Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg provided three of the four votes necessary to hear an appeal.... Scalia and Ginsburg have since died, and Thomas remains on the court. But two other justices, Neil Gorsuch and Brett Kavanaugh, have voiced concerns while serving as appeals court judges.

I am hopeful, but still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing.  If enough Justices are sincerely committed to orignalist principles, perhaps this issue will get to the Court's docket this coming year.  But I am certainly not holding my breath. 

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• A reminder of why "acquitted conduct" sentencing enhancements should be seen as a constitutional abomination 
• Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."
• Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing 
• "Acquitted. Then Sentenced."
• NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct 
• Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing? 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements