Sentencing Law and Policy

US Sentencing Commission this morning conducting "Public Hearing on Retroactivity" for its proposed 2024 guideline amendments

As detailed in this official notice, the United States Sentencing Commission is scheduled this morning to begin a public hearing "for the Commission to gather testimony from invited witnesses concerning whether to designate as retroactive certain 2024 guideline amendments relating to acquitted conduct, firearms, and drug offenses."

The USSC published some of the first round of public comments here, and it is allowing reply comment to be submitted (through the Public Comment Submission Portal) by July 22, 2024.  And, as previous noted, the Commission has published its staff's analysis of the impact of certain 2024 amendments if made retroactive at this link.

This USSC webpage provides the video link to watch the hearing, which is scheduled to run from 9am to 12:15pm, as well as the full "Agenda and Witness Statements."  I am not sure I will have a chance to listen to the full hearing, but I am going to try to listen to the first two panels focused on the acquitted conduct amendment. 

"You be the judge" and learn about sentencing in England and Wales

I was pleased and intrigued to trip across this recent news piece headlined "New website puts the public in the judge’s chair."  Here are the particulars:

You be the Judge gives people the opportunity to watch six shortened, dramatised cases related to burglary, fraud, assault, and possession of drugs, a knife, and a firearm. Users of the website will listen to the facts of each case as they relate to the offence and the offender and weigh up the aggravating and mitigating factors before deciding what they think is an appropriate sentence. They will then be able to see how their sentence compares with the one handed down by the judge or magistrates.

In making You be the Judge, the Sentencing Council for England and Wales aims to help people understand how sentencing works.  Each of the six cases shows the difficult and complex process judges and magistrates go through to decide a sentence and how they follow sentencing guidelines to take a consistent and transparent approach.

You be the Judge launched at King’s Academy Prospect in Reading on 10 July 2024 with pupils taking part in a lesson delivered by Her Honour Judge Khatun Sapnara, with the Lady Chief Justice of England and Wales and Lord Justice William Davis also in attendance. Pupils taking part in the launch event said the website was “very enjoyable and informative”.

Launching the website, Chairman of the Sentencing Council, Lord Justice William Davis, said: “You be the Judge gives the public a unique opportunity to see for themselves how complex the sentencing process is and how sentencing guidelines help judges and magistrates take a consistent approach.  Watching the scenarios, people will be able to see how judges and magistrates balance the seriousness of the offence, the impact on the victim, the circumstances of the offender and the need to protect the public in deciding on a proportionate and appropriate sentence.”

I have had a chance to click through to some of the six scenarios, and I largely share the views of the pupils taking part in the launch that the website was “very enjoyable and informative."  Though the discussions are built around the sentencing laws of England and Wales, the review of aggravating and mitigating sentencing factors are fairly universal and I could imagine using some of these videos in my teaching here is the US.  (In particular, I could imaging requiring student to try to figure out how these scenarios would likely play out under various federal and state sentencing laws here in the US.)

How Kisor rolls: Third Circuit rejects guideline commentary in child porn sentencing

I have blogged in the past about how the Supreme Court's ruling in Kisor v. Wilkie, which recast for federal courts the deference they give to agencies in construing agency regulations, has rippled in uneven and unpredictable ways through circuit decisions about how Guideline commentary can inform application of certain USSC Guidelines.  A helpful reader made sure I did not miss the he latest variation on these themes from a panel decision by the Third Circuit in US v. Haggerty, No. 23-2084 (3d Cir. July 9, 2024) (available here). Here is how it begins: 

In imposing a sentence on a defendant who has been found guilty of a child pornography-related offense, a district judge is required, under the United States Sentencing Guidelines, to enhance the applicable Guideline Sentencing range based on the number of “images” “involved” in the offense.  Specifically, under U.S.S.G. § 2G2.2(b)(7)’s graduated sentencing enhancement scheme, that defendant’s Guideline Sentencing range may be enhanced by up to five levels based on the number of images involved.

The calculus is a simple one where the pornographic matter consists only of “still” images. But what about when a moving image — that is, a video — is involved in an offense? The Guideline itself does not answer that question.  So may the judge look to the Commentary to the Guideline, which specifies that each video — no matter its length — constitutes 75 images for purposes of calculating the applicable sentencing enhancement? Whether we should defer to this commentary is the issue we now confront.

We hold that “image,” in the moving picture or video context, unambiguously means “frame.”  Deference to the Commentary’s 75-images rule is therefore unwarranted under Kisor v. Wilkie, 588 U.S. 558 (2019). Instead, the number of frames comprising a moving picture or video will determine the specific sentencing enhancement that a District Judge must apply.  Because the case before us involved videos with over 14,000 total frames, Haggerty probably possessed the requisite number of images to warrant a five-level enhancement under the Guideline.  But because the District Court did not use the frame-counting calculus we now hold is the correct one, we will vacate the District Court’s sentencing order and remand for resentencing in a manner consistent with our holding

Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?

The question in the title of this post is prompted by some notable new corporate news that is also a federal sentencing story.  This AP piece, headlined "Boeing accepts a plea deal to avoid a criminal trial over 737 Max crashes, Justice Department says," provides the basics:

Boeing will plead guilty to a criminal fraud charge stemming from two crashes of 737 Max jetliners that killed 346 people, the Justice Department said late Sunday, after the government determined the company violated an agreement that had protected it from prosecution for more than three years.

Federal prosecutors gave Boeing the choice last week of entering a guilty plea and paying a fine as part of its sentence or facing a trial on the felony criminal charge of conspiracy to defraud the United States. Prosecutors accused the American aerospace giant of deceiving regulators who approved the airplane and pilot-training requirements for it.

The plea deal, which still must receive the approval of a federal judge to take effect, calls for Boeing to pay an additional $243.6 million fine. That was the same amount it paid under the 2021 settlement that the Justice Department said the company breached. An independent monitor would be named to oversee Boeing’s safety and quality procedures for three years. The deal also requires Boeing to invest at least $455 million in its compliance and safety programs.

The plea deal covers only wrongdoing by Boeing before the crashes in Indonesia and in Ethiopia, which killed all 346 passengers and crew members aboard two new Max jets. It does not give Boeing immunity for other incidents, including a panel that blew off a Max jetliner during an Alaska Airlines flight over Oregon in January, a Justice Department official said. The deal also does not cover any current or former Boeing officials, only the corporation. In a statement, Boeing confirmed it had reached the deal with the Justice Department but had no further comment.

In a filing Sunday night, the Justice Department said it expected to submit the written plea agreement with a U.S. District Court in Texas by July 19. Lawyers for some of the relatives of those who died in the two crashes have said they will ask the judge to reject the agreement. “This sweetheart deal fails to recognize that because of Boeing’s conspiracy, 346 people died. Through crafty lawyering between Boeing and DOJ, the deadly consequences of Boeing’s crime are being hidden,” said Paul Cassell, a lawyer for some of the families.

Federal prosecutors alleged Boeing committed conspiracy to defraud the government by misleading regulators about a flight-control system that was implicated in the crashes, which took place than less five months apart. As part of the January 2021 settlement, the Justice Department said it would not prosecute Boeing on the charge if the company complied with certain conditions for three years. Prosecutors last month alleged Boeing had breached the terms of that agreement.

U.S. District Judge Reed O’Connor, who has overseen the case from the beginning, has criticized what he called “Boeing’s egregious criminal conduct.” O’Connor could accept the plea and the sentence that prosecutors offered with it or he could reject the agreement, likely leading to new negotiations between the Justice Department and Boeing.

I know very little about corporate criminal prosecutions or about the detailed specifics of this case. But I know that former federal judge Paul Cassell is a tireless advocate for crime victims, and this new Reuters commentary, headlined "Boeing 737 MAX crash victims’ families could disrupt new plea deal with US," provides a lot of background on the possibility of the victims' families disrupting this deal. It closes this way:

Crucially, the plea agreement — unlike Boeing’s deferred prosecution agreement — must be approved by O’Connor. That requirement, said family members’ lawyer Cassell, give his clients a shot at blocking the deal. “The standard that a judge applies when reviewing a plea deal is more rigorous than it is for a deferred prosecution agreement,” said Cassell. “Make no mistake: Judge O’Connor has the authority to reject the plea agreement.”

The Justice Department is already bracing for the families’ opposition. Prosecutors told O’Connor that they’d demanded additional concessions from Boeing after meeting several times with family members and their counsel, but that some family members continued to oppose the deal. (The Justice Department did not say how many families are opposed.) The government asked the judge to postpone a hearing to give both sides time to submit briefs on the proposed deal and to allow family members to make travel plans to attend a hearing in person.

Cassell, a retired federal judge, told me that the crash victims’ families have already succeeded in “shaking up business as usual in the criminal division of the Justice Department.” Now we’ll see if his clients and other families can use their leverage to force additional relief from Boeing.

Shouldn't not being sentenced based on acquitted conduct be one "of the benefits of Trial by Jury"?

In many years past, I have leaned into feedom and liberty themes for a July 4th post (see partial round up here).  But last year's July 4th post focused on acquitted conduct sentencing, and I cannot resist returning to the topic after an notable year on this front. 

As a reminder of why this is a fitting July 4th topic, recall that in the Declaration of Independence, approved 248 years ago today, the founders of this Nation complained of a "long train of abuses and usurpations" by "the present King of Great Britain," which included "depriving us in many cases, of the benefits of Trial by Jury."  As suggested in the title of this post, I consider being sentenced more severely by a judge on the basis of conduct that led to a jury acquittal at trial to be a deprivation of one "of the benefits of Trial by Jury."   Consequently, I view acquitted conduct sentencing to be inconsistent with key principles stressed by our Nation's founders and at our Nation's founding.

Notably, this portion of our Declaration of Independence was stressed in two recent Supreme Court constitutional rulings.  In Erlinger v. US, No. 23-370 (S. Ct. June 21, 2024) (available here), Justice Gorsuch writing for the Court on behalf of six Justices cited this provision: "Prominent among the reasons colonists cited in the Declaration of Independence for their break with Great Britain was the fact Parliament and the Crown had 'depriv[ed] [them] in many cases, of the benefits of Trial by Jury.' ¶ 20."  And in SEC v. Jarkesy, No. 22–859 (S. Ct. June 27, 2024) (available here), Chief Justice Roberts writing for the Court on behalf of a different group of six Justices also cited this provision:  "And when the English continued to try Americans without juries, the Founders cited the practice as a justification for severing our ties to England. See Declaration of Independence ¶ 20."

I fear that these two recent constitutional rulings, vidicating the Sixth and Seventh Amendments' jury trial rights, do not ensure or even increase the likelihood that the Supreme Court will soon take up and reverse jurisprudence permitting acquitted conduct sentencing.  But they do give me just a little more hope that, as some point in the future, a time will come in which courts recognize and vindicate the reality that acquitted conduct sentencing is inconsistent with our founding principles and our commitment to democratic self-governance.

Thankfully, this past year has seen a (small) step forward in the form of a new amendment to the federal sentencing guidelines which provides that the guideline range can no longer be based on "conduct for which the defendant was criminally charged and acquitted in federal court."  Though an incomplete remedy and many decades too late, I am still pleased that the US Sentencing Commission has partially restored one "of the benefits of Trial by Jury" that our founders went to war to vindicate.  I am also encouraged that Congress continues to vote in strong support of the "Prohibiting Punishment of Acquitted Conduct Act," though this bill disappointingly has not yet make it through the full legislative process.  

In the end, especially on a day like today, I remain drawn to the core notion that our sentencing laws in general, and acquitted conduct sentencing rules in particular, are matters fundamentally about our national and constitutional values.  I hope to see our founding values soundly reflected in these laws and rules.

Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law

More than 30 years ago, I had the great fortune to take administrative law in law school from then-Judge Stephen Breyer.  Though I am sure I learned a lot in that admin law course, what I most remember learning is that I did not want to practice admin law.  And yet, ironically I suppose, a good portion of my professional career has been devoted to considering (and sometimes criticizing) the work of the only federal administrative agency localed in the judicial branch, the US Sentencing Commission.  Moreover, especially since the First Step Act created all sorts of new provisions to be applied to federal prisoners, I have been giving ever more attention to the work of the administrative agency known as the Federal Bureau of Prisons (which is within the bigger administrative agency known as the US Department of Justice).  I am not sure it is surprising as much as it is intriguing that a whole lot of federal sentencing and correections law emerge from the actions of federal administrative agencies.

This post's preamble is meant to tee up the isssue flagged in the title, as the Supreme Court last week issued a significant administrative law ruling in Loper Bright Enterprises v. Raimondo, No. 22-451, (S. Ct. June 28, 2024) (available here), wherein the Court formally eliminated so-called Chevron deference in the consideration of challenges to actions by adminstrative agencies. Here is the key closing statement of the ruling in the case from Chief Judge Roberts' opinion for the Court:

Chevron is overruled.  Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.  Careful attention to the judgment of the Executive Branch may help inform that inquiry.  And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.  But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

So how does this significant ruling impact actions by the US Sentencing Commission and the Bureau of Prisons?  Candidly, I do not know.  I have already received a number of emails from a number of folks wondering if Loper Bright might be a federal sentencing game-changer in some respect, and I am always inclined to think probably not.  But as flagged in a post here a couple years ago, the Supreme Court's ruling in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), recast for federal courts "the deference they give to agencies ... in construing agency regulations" and that ruling has rippled in uneven and unpredictable ways through circuit decisions about how Guideline commentary can inform application of certain USSC Guidelines.  And, writing here in Forbes, Walter Pavlo notes on-going litigation over BOP's implementation of the First Step Act and concludes with this forecast: "The Chevron ruling will certainly prompt more lawsuits against the BOP in the coming months as prisoners will simply be asking for what Congress intended them to have ... less time in prison."

Adding to the intrigue, I suppose, is the fact that the Department of Justice (an agency) is currently arguing in courts nationwide that the US Sentencing Commission (an agency) misinterpreted the Sentencing Reform Act and the First Step Act when it recently amended USSG §1B1.13, Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement), to provide in subsection (b)(6) that, when "a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason" to potentially permit a reduction in his imprisonment term.   Notably, the SRA expressly delegates to the USSC the responsibility to "describe what should be considered extraordinary and compelling reasons for sentence reduction," 28 USC § 994(t), and so I would think Loper Bright still supports courts showing "respect [to] the delegation."  But I have a feeling DOJ will not read Loper Bright to end its legal attack on the amended guideline.

There is on-going litigation before a number of circuits concerning this amended USSC's policy statement, and it will be interesting to see if circuit judges rely heavily or at all on Loper Bright as they sort through the claim by DOJ that the USSC actions were not kosher.  And if DOJ prevails and/or Loper Bright supports efforts to assail the US Sentencing Guidelines on statutory grounds, I wonder whether defendants and defense attorneys might be able to champion other statutory language in 28 USC § 994 to assail other Guidelines.  For example, I have long thought many Guidelines — and particularly key provisions of the fraud and drug guidelines — fail to comply with 994(j), wherein Congress provided that the "Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense."  Could and should whole guidelines or particular subprovisions be attacked by defendants whenever in non-violent, low level cases these provisions do not recommend "imposing a sentence other than imprisonment"? 

My sense is that it will take quite a while before we fully understand the impacts of the Loper Bright ruling in awide array of legal arenas.  I am just starting early with my general call that the folks smart enough to really understand administrative law make sure not to forget to helping all of us working through the possible federal criminal law echoes.

Reviewing cert denial statements in criminal justice cases from the latest SCOTUS order list

As noted in a prior post, the Supreme Court this morning via this order list had a lot of GVRs, a few vert grants, and finally a bunch of comments on cert denials.  Four of the six cases with those comments involved criminal justice issues, which I will quickly recap:

Denial of cert in Price v. Montgomery County prompts Justice Sotomayor to issue a statement questioning whether "absolute immunity [should be] available under §1983 when, as here, a prosecutor knowingly destroys exculpatory evidence and  defies a court order."  She explains ways to address prosecutorial misconduct and suggests that if "this is what absolute prosecutorial immunity protects, the Court may need to step in to ensure that the doctrine does not exceed its 'quite sparing; bounds." 

Denial of cert in McCrory v. Alabama prompts Justice Sotomayor to issue a statement questioning remedies for when there are "convictions resting on forensic evidence later repudiated by the scientific community."  She does so in a case in which "Charles M. McCrory was convicted of murder in 1985 based on forensic bitemark testimony that has now been roundly condemned by the scientific community and retracted by the expert who introduced it at his trial."  She  concludes her 13-page statement this way:

I vote to deny this petition because the constitutional question McCrory raises has not yet percolated sufficiently in the lower courts to merit this Court’s review. There is no reason, however, for state legislatures or Congress to wait for this Court before addressing wrongful convictions that rest on repudiated forensic testimony.

Denial of cert in King v. Emmons prompts Justice Jackson to dissent, joined by Justice Sotomayor, in a capital case in which "a Georgia prosecutor struck every Black woman and all but two Black men from a jury pool."  The end of the 10-page dissent concludes with Justice Jackson stating she "would summarily reverse the Court of Appeals’ erroneous application of deference in upholding the state court’s decision and remand for reconsideration of King’s Batson claim without the deference AEDPA otherwise requires."

Denial of cert in Bassett v. Arizona prompts Justice Sotomayor to dissent, joined by Justices Kagan and Jackson, in a case involving sentencing of a juvenile to a mandatory LWOP term.  The dissent contends that "Arizona advances three arguments for why Bassett did, in fact, receive all the discretionary process required by Miller....  Each runs contrary to Miller’s clear command." Consequently, after running through the Arizona argument, this dissent concludes by stating that "[b]ecause the Arizona Supreme Court’s decision departed from this Court’s established precedents, [she] would grant the petition for certiorari and summarily reverse the judgment below." 

New York state sentencing of former Prez Trump delayed until September 18, 2024

As reported in this Fox News piece, "Judge Juan Merchan has delayed former President Trump's sentencing in New York v. Trump to September, after requests from the presumptive Republican nominee to do so, and no opposition from Manhattan District Attorney Alvin Bragg." Here is more:

Trump on Monday moved to overturn his criminal conviction in the Manhattan case after the U.S. Supreme Court ruled that a former president has substantial immunity for official acts committed while in office. He also requested to delay his sentencing, which was set for July 11 — just days before the Republican National Convention where he is set to be formally nominated the 2024 GOP presidential nominee.

Bragg, on Tuesday morning, said Trump's request to toss the verdict was without merit, but did not oppose the request to delay sentencing. Merchan on Tuesday afternoon delayed Trump's sentencing date to Sept. 18 at 10:00 a.m.

"The July 11, 2024, sentencing date is therefore vacated. The Court’s decision will be rendered off-calendar on September 6, 2024, and the matter is adjourned to September 18, 2024, at 10:00 AM for the imposition of sentence, if such is still necessary, or other proceedings," Merchan wrote in a letter to Trump attorneys and New York prosecutors.

US Sentencing Commission notices "Public Hearing on Retroactivity" for its proposed 2024 guideline amendments

As detailed in this official notice, the United States Sentencing Commission has now announced "a public hearing is scheduled for Monday, July 15, 2024 from 9:00 am–12:15 pm (EDT)."  Here is more, with helpful links from the USSC:

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses concerning whether to designate as retroactive certain 2024 guideline amendments relating to acquitted conduct, firearms, and drug offenses."...

The Commission received public comment on retroactive application and is currently accepting reply comment. Written reply comments, which may only respond to issues raised during the original comment period, should be received by the Commission not later than July 22, 2024. You may submit written reply comments through the Public Comment Submission Portal.

The Commission also published an analysis of the impact of certain 2024 amendments if made retroactive. Learn more.

Especially because the number of cases potentially impacted by guideline retroactivity this year seem to be pretty modest (particularly as compared to guideine reforms made last year), I am inclined to indulge my usual intuition that all guidelines reforms ought to be made retroactive on some terms.  After all, if and when an expert commissions votes to change sentencing rules for the better, it makes sense to me that those new rules ought to be presumptively retroactive subject to case-specific review of why particular prisoners ought not get a benefit from retroactivity.

Surpeme Court grants cert on First Step resentencing, GVRs gun issues, and lots of statements in (final?) order list

I am already way, way behind on my Supreme Court reading, and the Justices this morning via this order list gave us all another 53 pages of SCOTUS copy to process.  As is common for an end-of-term order list, this one starts with a bunch of GVRs (cert "granted," judgment "vacated," case "remanded") based on notable recent rulings, then follows with a few grants and then a bunch of comments on cert denials. 

I saw a big bunch of Erlinger remands along with a number of Loper Bright ones and a few based on Fischer and Diaz.  The most notable of the set, though, are the many Rahimi remands in an array of cases raising Second Amendment challenges to various application of federal criminal gun possession prohibitions under 18 USC 922(g).  In particular, it seems SCOTUS has GVRed all the felon-in-possession cases that the US Solicitor General suggested be taken up right away in light of Rahimi.  I am not really surprised the Justcies are content to kick federal felon-in-possession cases down the road, but it simply ensure a lot more legal churn in lower courts (and perhaps a lot more people unconstitutonally prosecuted) as the Justice go off on their summer vacation and the rest of us try to read Rahimi tea leaves.  There is little doubt in my mind that the Justices will have to resolve the constitutionality of 922(g)(1) sooner or later, but they ultimately get to decided just when and how while the rest of use deal with the legal uncertainty.

But I suppose I cannot be too grumpy at the Justices because, in this same order list, they did grant cert (and consolidate) two cases involving the application of the First Step Act.  Specifically, as explained in this cert petition in one of the cases, the issue taken up by SCOTUS in the new cases of Duffey and Hewitt is:

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

Last but certainly not least, the lengthy order lists concludes with statements or dissents in a half-dozen cases in which cert was denied authored by a handful of Justices.  A number of these cases are criminal matters of note, so I will cover some of that action in a future post. Whew.

Effective review of prospects and challenges of sentence reductions for women sexually abused by guards

Writing at Bolts, Piper French has this legnthy review of the issues surrounding efforts by women in federal prison who have been sexually abused to secure compassionate release.  The piece is fully titled “'What’s More Extraordinary and Compelling?': Women who suffered sexual abuse at the hands of guards at a notorious federal prison in California are now seeking compassionate release."  I recommend the article in full, and here are excerpts:

It’s difficult to imagine a more serious abuse of power than a prison guard who preys on a person whose every action he already controls — her communication with the outside world, her visits with her family; her access to food, supplies, showers, medical care.  Federal prison officials allowed this type of abuse to go on unchecked for years.  Now that the story has broken open, the litigation, prosecutions, and efforts to establish broader federal oversight are really attempts to answer one central question: What does an appropriate remedy look like? 

Lately, lawyers representing the survivors are trying a novel strategy: compassionate release.  The mechanism, generally conceived of as a last-resort option for dying or medically incapacitated prisoners, is for the first time being considered as a reparative measure for women who were sexually abused while in federal custody. 

“We thought, what’s more extraordinary and compelling, which is the standard for compassionate release, than being sexually abused by prison guards after your sentence has been imposed?” said Shanna Rifkin, deputy general counsel for Families Against Mandatory Minimums (FAMM), who is spearheading the effort.  “No federal judge sentences people to be sexually abused in prison.” 

FAMM and the pro bono lawyers working with them have helped secure compassionate release for 17 former inhabitants of FCI Dublin thus far, and they’re evaluating 95 additional requests for legal aid from women formerly held at the facility.  But seeking this remedy has come with its own challenges — ones that underscore precisely why it’s so difficult to eradicate sexual violence in prison. 

Notable (and timely) concurrence assailing uncharged "relevant conduct" federal sentencing

A helpful colleague made sure I did not miss a notable opinion in a Seventh Circuit case handed down late last week.  The opinion for the court in US v. Brasher, No. 23-1180 (7th Cir. June 28, 2024) (available here), succinctly notes the key issues and disposition of the case:

This appeal asks us to hold that some of Bernell Brasher’s past conduct bore too attenuated a link to his offense of conviction to qualify as relevant conduct at sentencing. But Brasher never raised that issue below, so we review here for plain error. Finding no such error, we affirm.

What makes this case blogworthy in an extended concurring opinion by Judge Jackson-Akiwumi which starts and ends this way:

I join the majority opinion because it applies our circuit’s current law on relevant conduct to Bernell Brasher’s case, but I write separately to highlight what I view as an unfortunate devolution in our circuit’s handling of relevant conduct altogether. By watering down our standard for what district courts must do to ensure uncharged conduct is sufficiently related to conduct for which a defendant is convicted, we further increase the power of the government and the courts to punish individuals for conduct for which the government did not attain an indictment or conviction. Sentencing based on relevant conduct is a constitutionally dubious proposition on its own, but our circuit’s weakened standard only exacerbates the risk of a constitutional violation. It’s time we correct course....

In closing, I join the chorus of critics who have explained that sentencing a defendant based on uncharged conduct is suspect as both a constitutional and policy matter.  The United States Sentencing Commission has the authority to address these issues, and it should.  Until then, our circuit should ensure that our rules and standards are robust enough to prevent constitutional violations wherever possible. The Duarte rule did that. We should find our way back to it.

I call this opinion timely for two reasons: (1) the US Sentencing Commission is actively accepting comments on its priorities for the coming year, and Judge Jackson-Akiwumi's opinion astutely suggests uncharged conduct sentencing merits attention, and (2) Donald Trump is scheduled to be sentenced in NY state court in 10 days, and I keep thinking about what the prosecutor might argue, and what the sentencing judge might consider, to be proper aggravating uncharged conduct at that historic sentencing.

Supreme Court rules, 6-3, that a former Prez must "have some immunity from criminal prosecution for official acts during his tenure in office"

The Supreme Court finished up quite a notable Term with a lengthy and divided opinion on criminal justice immunity for the US President.  The full ruling with all the opinion in Trump v. US, No. 23–939 (S. Ct. July 1, 2024) (available here), I believe, is the longest of the Term checking in at 119 total pages. Here is the line up of opinions:

ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined in full, and in which BARRETT, J., joined except as to Part III–C. THOMAS, J., filed a concurring opinion. BARRETT, J., filed an opinion concurring in part. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined. JACKSON, J., filed a dissenting opinion.

Here is the brief start of Chief Justice Roberts' opinion for the Court, as well as a couple of key paragraphs fromt the start and finish of his 43-page majority opinion:

This case concerns the federal indictment of a former President of the United States for conduct alleged to involve official acts during his tenure in office. We consider the scope of a President’s immunity from criminal prosecution....

We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office.  At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.  As for his remaining official actions, he is also entitled to immunity.  At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient....

The President enjoys no immunity for his unofficial acts, and not everything the President does is official.  The President is not above the law.  But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.  And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.  The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.  That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.

The concurring opinions of Justices Thomas and Barrett add nuance to their decisions to join the Court's opinion.  And Justice Sotomayor provides the chief dissent, which gets started this way:

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

Reviewing some reviews of the impact of SCOTUS Fischer ruling on Jan 6 prosecutions

I have already seen a handful of notable discussions of how the Supreme Court's limiting interpretation of a federal obstruction statute in Fischer v. US, No. 23-55 (S. Ct. June 28, 2024) (available here), may impact a host of federal prosecutions emerging from the January 6 riot at the US Capitol.  Here is just a partial round-up of some of these pieces:

From CBS News, "How will the Supreme Court's Fischer ruling impact Jan. 6 cases?"

From The Independent, "‘The decision will not have tremendous significance’: Why SCOTUS’ Jan. 6 ruling will only impact a handful of rioters"

From Just Security, "The Limited Effects of Fischer: DOJ Data Reveals Supreme Court’s Narrowing of Jan. 6th Obstruction Charges Will Have Minimal Impact"

From the Washington Post, "What’s next for the Jan. 6 riot probe after Supreme Court ruling?"

The Just Security piece authored by Ryan Goodman, Mary B. McCord and Andrew Weissmann provides the most extensive and intricate analysis of Fischer's likely impact on Jan 6 defendants. Here is part of the start of its analysis near the start of the piece: 

The upshot is that the decision means little in terms of the pending charges against former President Donald Trump.  It means potentially more to a subset of the January 6th defendants who were charged under this statute, who comprise only a fraction -– 24% -– of the existing January 6th defendants.  And even within that 24%, in the great majority of cases that have resulted in a guilty verdict (by plea or after trial) for a 1512(c)(2) offense, the defendant was also found guilty of one or more other felonies (62%).  Further, as to the 71 defendants who have been charged under Section 1512(c)(2) and are still awaiting trial, all of them are charged with crimes in addition to 1512(c)(2), and a majority are charged with one or more other felonies.  A perfect illustration of this is the three defendants whose cases led to the Supreme Court taking up the 1512(c)(2) statutory interpretation issue: Joseph Fischer, Edward Lang, and Garrett Miller.  All three were charged with several other felonies including assaulting law enforcement officers. And even for the small percentage of defendants who may now be subject to resentencing post-Fischer, judges can still take into account the underlying conduct that formed the basis for the 1512(c)(2) violation.

Supreme Court, by 6-3 vote, limits reach of federal statute criminalizing obstructing official proceeeding in Jan 6 prosecution

With a notable configuration of Justices, the Supreme Court by a 6-3 vote further continued its recent tendency to give a federal criminal statute a limited reading through its decision today in Fischer v. US, No. 23-55 (S. Ct. June 28, 2024) (available here). Chief Justice Roberts authored the opinion for Court, which starts and ends this way:

The Sarbanes-Oxley Act of 2002 imposes criminal liability on anyone who corruptly “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.” 18 U.S.C. §1512(c)(1). The next subsection extends that prohibition to anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” §1512(c)(2). We consider whether this “otherwise” clause should be read in light of the limited reach of the specific provision that precedes it....

To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so.  See supra, at 9.  The judgment of the D. C. Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. On remand, the D. C. Circuit may assess the sufficiency of Count Three of Fischer’s indictment in light of our interpretation of Section 1512(c)(2).

Justice Jackson authored a concurring opinion which has this paragraph to conclude its opening:

Notwithstanding the shocking circumstances involved in this case or the Government’s determination that they warrant prosecution, today, this Court’s task is to determine what conduct is proscribed by the criminal statute that has been invoked as the basis for the obstruction charge at issue here. I join in the Court’s opinion because I agree with the majority that §1512(c)(2) does not reach “‘all forms of obstructive conduct’” and is, instead, “limited by the preceding list of criminal violations” in §1512(c)(1). Ante, at 7–8. I write separately to explain why and how that interpretation of §1512(c) follows from the legislative purpose that this statute’s text embodies.

Justice Barrett authored a lengthy dissent, which was joined by Justices Sotomayor and Kagan. Here is how it starts:

Joseph Fischer allegedly joined a mob of rioters that breached the Capitol on January 6, 2021.  At the time, Congress was meeting in a joint session to certify the Electoral College results. The riot forced Congress to suspend the proceeding, delaying it for several hours.

The Court does not dispute that Congress’s joint session qualifies as an “official proceeding”; that rioters delayed the proceeding; or even that Fischer’s alleged conduct (which includes trespassing and a physical confrontation with law enforcement) was part of a successful effort to forcibly halt the certification of the election results.  Given these premises, the case that Fischer can be tried for “obstructing, influencing, or impeding an official proceeding” seems open and shut. So why does the Court hold otherwise?

Because it simply cannot believe that Congress meant what it said.  Section 1512(c)(2) is a very broad provision, and admittedly, events like January 6th were not its target. (Who could blame Congress for that failure of imagination?) But statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.  The Court, abandoning that approach, does textual backflips to find some way — any way — to narrow the reach of subsection (c)(2).  I respectfully dissent.

CCRC releases "Positive Credentials That Limit Risk: A Report on Certificates of Relief"

The Collateral Consequences Resource Center today released this new report by Margaret Love titled "Positive Credentials That Limit Risk: A Report on Certificates of Relief. Here is the start of the report's executive summary:

This report deals with a form of relief from the collateral consequences of a criminal conviction that is less far-reaching than expungement or other forms of record clearing, but is potentially available to more people at an earlier point in time.  These so-called “certificates of relief” do not limit public access to a person’s record, but they may be effective in reducing many conviction-related disadvantages in the workplace, including by providing employers and others with protection against the risk of being sued for negligence.

At least as long as expungement and sealing remain unavailable to many people with a felony conviction record, or are available only after lengthy waiting periods, certificates of relief can provide an important addition to a state’s reentry scheme, and serve as a bridge to more thorough forms of record relief like expungement.  We believe that, rather than competing as alternative forms of relief, certificates and expungement can operate as complementary parts of a structured system of serially available criminal record relief.

Yet it appears that certificates have been largely ignored in many states by courts that are empowered to dispense them, as well as by the advocacy community whose clients might benefit from them. State court systems have failed to collect, track, or aggregate basic data like the number of certificate applications, grants, and denials, a failure that makes it almost impossible to evaluate a certificate’s effectiveness in a given state.

At the same time, in a promising development, certificates are being used by prison and parole agencies to facilitate reentry for those exiting prison or completing supervision.

Given the perceived limits of record clearing as a comprehensive reentry strategy, social science researchers have become interested in studying the effect of laws that aim to increase the positive information about individuals with a criminal record to counter the negative effect of the record itself. This report is intended to support these research efforts by describing the state of the law relating to certificates of relief in the 21 states that now offer them. A follow-up study will look at the state of executive pardoning.

Supreme Court, by 6-3 vote, rules federal criminal prohibition against bribes does not extend to gratuities

In one of two rulings handed down this morning, the Supreme Court continued its recent tendency to give a federal criminal statute a limited reading through its decision in Snyder v. US, No. 23-108 (S. Ct. June 26, 2024) (available here).  Justice Kavanaugh authored the opinion for Court, which starts this way:

Section 666 of Title 18 makes it a crime for state and local officials to “corruptly” solicit, accept, or agree to accept “anything of value from any person, intending to be influenced or rewarded” for an official act. § 666(a)(1)(B).  That law prohibits state and local officials from accepting bribes that are promised or given before the official act. Those bribes are punishable by up to 10 years’ imprisonment.

The question in this case is whether § 666 also makes it a crime for state and local officials to accept gratuities—for example, gift cards, lunches, plaques, books, framed photos, or the like — that may be given as a token of appreciation after the official act.  The answer is no.  State and local governments often regulate the gifts that state and local officials may accept. Section 666 does not supplement those state and local rules by subjecting 19 million state and local officials to up to 10 years in federal prison for accepting even commonplace gratuities.  Rather, § 666 leaves it to state and local governments to regulate gratuities to state and local officials.

Justice Gorsuch authored a short concurring opinion which starts this way:

Call it what you will. The Court today speaks of inferences from the word “corruptly,” the statute’s history and structure, and associated punishments. See ante, at 7. It discusses concerns of fair notice and federalism. Ibid. But the bottom line is that, for all those reasons, any fair reader of this statute would be left with a reasonable doubt about whether it covers the defendant’s charged conduct. And when that happens, judges are bound by the ancient rule of lenity to decide the case as the Court does today, not for the prosecutor but for the presumptively free individual.

Justice Jackson authored a lengthy dissent, which was joined by Justices Sotomayor and Kagan.  Here are excerpts from the start of her opinion:

James Snyder, a former Indiana mayor, was convicted by a jury of violating § 666 after he steered more than $1 million in city contracts to a local truck dealership, which turned around and cut him a $13,000 check.  He asks us to decide whether the language of § 666 criminalizes both bribes and gratuities, or just bribes. And he says the answer matters because bribes require an upfront agreement to take official actions for payment, and he never agreed beforehand to be paid the $13,000 from the dealership.

Snyder’s absurd and atextual reading of the statute is one only today’s Court could love.  Ignoring the plain text of § 666 — which, again, expressly targets officials who “corruptly” solicit, accept, or agree to accept payments “intending to be influenced or rewarded” — the Court concludes that the statute does not criminalize gratuities at all.  This is so, apparently, because “[s]tate and local governments often regulate the gifts that state and local officials may accept,” ante, at 1, which, according to the majority, means that § 666 cannot.

The Court’s reasoning elevates nonexistent federalism concerns over the plain text of this statute and is a quintessential example of the tail wagging the dog.

New post-Rahimi SG filing urges SCOTUS to "grant plenary review to resolve Section 922(g)(1)’s constitutionality"

In this post yesterday, I highlighted why the Supreme Court's Second Amendment ruling in US v. Rahimi (basics here), did not make it any easier to figure out if the most prosecuted federal criminal gun prohibition, 18 USC § 922(g)(1), is or is not constitutionally sound in many (most?) cases.  This provision, often described as "felon in possession," formally prohibits all sorts of firearm activity and possession for anyone and everyone  who has "been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."  In the comments to the post, the discussion turned to some of the pending cases on this issue and speculated about what the Justices might do with these cases.

Helpfiully, a kind reader made sure I did not miss this new SCOTUS filing from US Solicitor General covering five pending cases challenging the constitutionality of the broad "felon in possession" prohibition.  Here is how this filing starts: 

These five cases present the question whether 18 U.S.C. 922(g)(1), the statute prohibiting a person from possessing a firearm if he has been convicted of “a crime punishable by imprisonment for a term exceeding one year,” ibid., violates the Second Amendment.  In each case, we asked this Court to hold the petition for a writ of certiorari pending its decision in United States v. Rahimi, No. 22-915 (June 21, 2024).  Now that the Court has decided Rahimi, we believe that it should grant plenary review to resolve Section 922(g)(1)’s constitutionality.  In particular, the Court should grant the petitions in Doss, Jackson, and either Range or Vincent; consolidate the granted cases for briefing and argument; and hold the remaining petitions pending the resolution of the granted cases.  If the Court chooses not to take that course, it should grant, vacate, and remand (GVR) in Range and deny certiorari in the remaining cases.

The rest of the filing makes the case for resolving this constitutional question in short order, and I was pleased to see this paragraph highlighting the same recent data from the US Sentencing Commission that I flagged in my post:

Although Rahimi undermines the reasoning of the decisions holding Section 922(g)(1) invalid, the present conflict is unlikely to resolve itself without further intervention by this Court. And the costs of deferring this Court’s review would be substantial: Disagreement about Section 922(g)(1)’s constitutionality has already had widespread and disruptive effects. Out of the approximately 64,000 criminal cases reported to the Sentencing Commission in Fiscal Year 2022, more than 7600 involved convictions under Section 922(g)(1). See U.S. Sentencing Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses 1.  Those convictions accounted for nearly 12% of all federal criminal cases.  See ibid. Uncertainty about the statute’s constitutionality thus affects a significant proportion of the federal criminal docket.

Based on part on the vague (and sometimes contradictory) language in Rahimi, I agree wholeheartedly that "the present conflict is unlikely to resolve itself without further intervention" by the Supreme Court. For a variety of reasons, I am fearful that SCOTUS will GVR all these cases and try to keep dodging this issue. But it was obvious to me from the day Bruen was decided (see my post here from two years ago) that an originalist turn in Second Amendment jurisprudence served to make all broad felon-in-possession criminal statutes constitutionally suspect.  SCOTUS has let this critical post-Bruen issue — which impacts roughly one in every six (non-immigration) federal propecutions as well as the Second Amendment rights of up to 10% of the US population — develop (and fester) long enough.  The Justices will have to grant cert on this issue evetually, why not now?

A few (of many) prior related posts (recent and past):

• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender 
• After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 
• "Reevaluating Felon-in-Possession Laws After Bruen and the War on Drugs"
• Imagining post-Heller federal felon-in-possession litigation (from 2008)
• "Why Can’t Martha Stewart Have a Gun?"

Federal prosecutors finalize plea deal to resolve charges (and to enable release) of Julian Assange

This Washington Post article reports on a notable and unusual federal plea deal in the works for a notable and unusual federal defendant, and the full headline details the basics: "WikiLeaks founder Julian Assange expected to plead guilty to felony charge: After serving five years in a British prison, a new court filing indicates Assange is preparing to plead guilty to a single U.S. charge and will be allowed to return to his home country of Australia."  Here is how the article starts with links to some key documents:

Julian Assange, the founder of the anti-secrecy site WikiLeaks, has reached a tentative deal to plead guilty to one count of violating the Espionage Act for his role in obtaining and publishing classified military and diplomatic documents from 2009 to 2011, according to court filings.

The plea deal would end a long-running legal saga and a transatlantic tug-of-war that pitted national security against press freedom.

He is expected to be sentenced on Wednesday in the Northern Mariana Islands, according to a letter filed by the Justice Department in the remote U.S. jurisdiction Monday evening. He will then return to his home country of Australia, the letter says, indicating he will be sentenced to the 62 months he has already spent behind bars in a London prison.

A criminal information filed alongside the letter says Assange “knowingly and unlawfully conspired” with Chelsea Manning to “receive and obtain documents … connected with the national defense” and “communicate” that information to “persons not entitled to receive” it. Manning, then a young Army intelligence analyst in Iraq, was convicted of violating the Espionage Act and other laws at a court-martial in 2013.

“This period of our lives, I’m confident now, has come to an end,” his wife and attorney Stella Assange said in a video statement filmed last Wednesday and released after the court documents were filed. “Julian will be free.”

Assange, whose snow-white hair became recognizable worldwide, was a polarizing figure. Supporters saw him as a courageous journalist whistleblower of government misdeeds, but his detractors saw a pompous self-promoter interested primarily in fame and oblivious to the harm his leaks might cause.

A commentor here wonders about what could happen if the federal judge were to reject this plea deal. I doubt that is likely, but one never knows.

Also notable are news report that Assange's wife has already started discussing seeking a federal pardon for her husband. I believe Donald Trump talked about considering a pardon for Assage both while he was president and more recently on the campaign trail.

"Can a prosecutor, even a progressive or reform-minded one, really help dismantle mass incarceration?"

The title of this post is the subtitle of this new piece at Inquest, titled "The Prosecutor Paradox," authored by Premal Dharia, James Forman, Jr. and Maria Hawilo. The piece starts with this "Editors’ Note":

This article is excerpted from Dismantling Mass Incarceration.  In the anthology, the essay introduces the section on the role that prosecutors play in mass incarceration — and could potentially play in ending it.  Other sections examine the role of police, public defenders, judges, prisons themselves, and “aftermath,” or the lifetime punishments that continue after release from prison.  The essays referenced here are included in this section of the book.

And the piece substantively begins and ends this way:

In the popular imagination, lawyers argue each side of an issue, while the judge or jury makes the decision.  But when we worked as public defenders, we learned that prosecutors were often the true power brokers:  They chose what charges to bring, how much discovery material to provide, and whether to offer a plea bargain. And we believed they often used their authority for ill, standing as barriers between our clients and justice....

In the Inquest forum discussion for which this essay serves as opening, we invited contributors to reflect on the role that prosecutors might play in ending mass incarceration.  We encouraged them in particular to consider the following questions: Is addressing the role of prosecutors among the most effective means of dismantling mass incarceration?  If so, is electing reform-minded prosecutors a productive path or does it merely entrench and legitimize the system that produced the problem in the first place?  Instead of elevating and supporting progressive prosecutors, should we work to limit the power of prosecutors altogether?  Or can we pursue multiple paths at once?

Supreme Court, by unanimous vote, expands (and tweaks?) application of the Confrontation Clause

The Supreme Court this morning in Smith v. Arizona, No. 22-899 (S. Ct. June 21, 2024) (available here), voted unanimously to vacate a state conviction because the defendant did not have his Sixth Amendment rights of confrontation properly respected. Justice Kagan authored the opinion for the COurt, and it starts this way:

The Sixth Amendment’s Confrontation Clause guarantees a criminal defendant the right to confront the witnesses against him. The Clause bars the admission at trial of “testimonial statements” of an absent witness unless she is “unavailable to testify, and the defendant ha[s] had a prior opportunity” to cross-examine her.  Crawford v. Washington, 541 U.S. 36, 53–54 (2004). And that prohibition applies in full to forensic evidence. So a prosecutor cannot introduce an absent laboratory analyst’s testimonial out-ofcourt statements to prove the results of forensic testing. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307, 329 (2009).

The question presented here concerns the application of those principles to a case in which an expert witness restates an absent lab analyst’s factual assertions to support his own opinion testimony.  This Court has held that the Confrontation Clause’s requirements apply only when the prosecution uses out-of-court statements for “the truth of the matter asserted.” Crawford, 541 U.S., at 60, n. 9. Some state courts, including the court below, have held that this condition is not met when an expert recites another analyst’s statements as the basis for his opinion. Today, we reject that view.  When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth. As this dispute illustrates, that will generally be the case when an expert relays an absent lab analyst’s statements as part of offering his opinion.  And if those statements are testimonial too — an issue we briefly address but do not resolve as to this case— the Confrontation Clause will bar their admission.

Because the Confrontation Clause does not apply at sentencing and I have never been able to figure it out, I am not sure how big a ruling this is. I sense from the two concurrences that this area of law is going to continue to be messy, but perhaps others can speak to the nature of the mess to expect after Mr. Smith can to SCOTUS jurisprudence.

Supreme Court, by unique 6-3 vote, decided Apprendi rights apply to certain ACCA findings

Among the many reasons I find the Apprendi/Blakely line of cases so fascinating is that the jurisprudence here, as Forest Gump might but it, is "like a box of chocolates ... you never know what you're gonna get."  The Supreme Court's lengthy ruling this morning in Erlinger v. US, No. 23-370 (S. Ct. June 21, 2024) (available here), highlights this reality through this remarkable line-up of Justices:

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. ROBERTS, C. J., and THOMAS, J., filed concurring opinions. KAVANAUGH, J., filed a dissenting opinion, in which ALITO, J., joined, and in which JACKSON, J., joined except as to Part III. JACKSON, J., filed a dissenting opinion.

Got that? Here is how Justice Gorsuch's opinion for the Court starts and ends:

This case concerns the Armed Career Criminal Act (ACCA) and the Fifth and Sixth Amendments. ACCA imposes lengthy mandatory prison terms on certain defendants who have previously committed three violent felonies or serious drug offenses on separate occasions.  The question we face is whether a judge may decide that a defendant’s past offenses were committed on separate occasions under a preponderance-of-the-evidence standard, or whether the Fifth and Sixth Amendments require a unanimous jury to make that determination beyond a reasonable doubt....

The jury trial may have “never been efficient.” Apprendi, 530 U. S., at 498 (Scalia, J., concurring).  It may require assembling a group of the defendant’s peers to resolve unanimously even seemingly straightforward factual questions under a daunting reasonable doubt standard.  Avoiding the prejudice associated with the introduction of evidence of past crimes may require careful attention, too.  But the right to a jury trial “has always been” an important part of what keeps this Nation “free.” Ibid.  Because the Fifth and Sixth Amendments do not tolerate the denial of that right in this case, the judgment of the Court of Appeals for the Seventh Circuit is vacated, and the matter is remanded for further proceedings consistent with this opinion.

The concurring opinions are short, and the dissenting opinions are long, and Justice Jackson's views on these issues in her solo dissent merit mention in this first post:

Today, the Court concludes that Apprendi v. New Jersey, 530 U.S. 466 (2000), must be read [so that] facts that relate to a defendant’s prior crimes cannot be determined by judges but instead must be found by juries. I disagree for several reasons, including my overarching view that Apprendi was wrongly decided. Like many jurists and other observers before me, I do not believe that Congress exceeds its constitutional authority when it empowers judges to make factual determinations related to punishment and directs that a particular sentencing result follow from such findings.

I recognize, of course, that Apprendi is a binding precedent of this Court, and one that “has now defined the relevant legal regime” for nearly a quarter century. Alleyne v. United States, 570 U.S. 99, 122 (2013) (Breyer, J., concurring in part and concurring in judgment).  Given that reality, untangling the knots Apprendi has tied is probably infeasible at this point in our Court’s jurisprudential journey.  But considering the flaws inherent in Apprendi’s approach, I cannot join today’s effort to further extend Apprendi’s holding, particularly when there is a well-established recidivism exception to the Apprendi rule that applies to the circumstances of the case before us now.

When thinking about issues like acquitted conduct and other matters, I have been (wrongly) assuming that Justice Jackson would likley be a vote for expanding Apprendi rights and that Justice Barrett would likley be a vote for limiting Apprendi rights. That they are on opposite sides here is so interesting, and reinforces yet again my view that the "true originalists" are going to be, in lots of settings, keen on expending crimianl defendant rights against the government (discussed a bit here).

Supreme Court, by 6-3 vote, rejects claim that mental state expert testimony violated FRE 704(b)

The Supreme Court this morning handed down a short opinion in Diaz v. United States, No. 23-14 (S. Ct. June 20, 2024) (available here).  Justice Thimas authored the opinion for the Court, which starts this way:

Federal Rule of Evidence 704(b) prohibits expert witnesses from stating opinions “about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”  In this drug-trafficking prosecution, petitioner argued that she lacked the mental state required to convict because she was unaware that drugs were concealed in her car when she drove it across the United States-Mexico border.  At trial, the Government’s expert witness opined that most drug couriers know that they are transporting drugs.  Because the expert witness did not state an opinion about whether petitioner herself had a particular mental state, we conclude that the testimony did not violate Rule 704(b).  We therefore affirm.

Justice Jackson authored a concurrence which explains and stresses that "the type of mental-state evidence that Rule 704(b) permits can prove essential not only for prosecutors, but for defendants as well."

Justice Gorsuch authored a dissent joined by Justices Sotomayor and Kagan that starts this way:

Federal Rule of Evidence 704(b) prohibits an expert witness from offering an opinion “about whether the defendant did or did not have [the] mental state” needed to convict her of a crime.  “Those matters,” the Rule instructs, “are for the trier of fact alone.” Following the government’s lead, the Court today carves a new path around that command. There’s no Rule 704(b) problem, the Court holds, as long as the government’s expert limits himself to testifying that most people like the defendant have the mental state required to secure a conviction.

The upshot?  The government comes away with a powerful new tool in its pocket.  Prosecutors can now put an expert on the stand — someone who apparently has the convenient ability to read minds — and let him hold forth on what “most” people like the defendant think when they commit a legally proscribed act.  Then, the government need do no more than urge the jury to find that the defendant is like “most” people and convict.  What authority exists for allowing that kind of charade in federal criminal trials is anybody’s guess, but certainly it cannot be found in Rule 704.

Via per curiam (with lots of separate opinions), SCOTUS reverses Fifth Circuit's approach to retaliatory arrest claim

The Supreme Court this morning handed down a short per curiam opinion today in Gonzalez v. Trevino, No. 22-1025 (S. Ct. June 20, 2024) (available here). That opinion runs less than five full pages and starts this way:

In Nieves v. Bartlett, 587 U.S. 391, 402 (2019), this Court held that, as a general rule, a plaintiff bringing a retaliatory-arrest claim “must plead and prove the absence of probable cause for the arrest.”  At the same time, we recognized a narrow exception to that rule.  The existence of probable cause does not defeat a plaintiff ’s claim if he produces “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Id., at 407.  We granted certiorari in this case to consider whether the Fifth Circuit properly applied these principles.  It did not.  We therefore vacate that court’s judgment and remand for proceedings consistent with this opinion.

Three Justices (Alito, Kavanaugh and Jackson) authored concurring opinons of various lengths, and Justice Thomas authored a solo dissent.

Supreme Court, by 6-3 vote, clarifies (a bit) the rules for § 1983 malicious-prosecution claims

The Supreme Court this morning handed down a short opinion in Chiaverini v. City of Napoleon, No. 23-50 (S. Ct. June 20, 2024) (available here). Justice Kagan authored the opinion for the Court, which starts this way:

This case involves what is often called a Fourth Amendment malicious-prosecution claim under 42 U.S.C. §1983.  To succeed on such a claim, a plaintiff must show that a government official charged him without probable cause, leading to an unreasonable seizure of his person.  See Thompson v. Clark, 596 U.S. 36, 43, and n. 2 (2022).  The question presented here arises when the official brings multiple charges, only one of which lacks probable cause. Do the valid charges insulate the official from a Fourth Amendment malicious-prosecution claim relating to the invalid charge? The answer is no: The valid charges do not create a categorical bar. We leave for another day the follow-on question of how to determine in those circumstances whether the baseless charge caused the requisite seizure.

Justice Thomas authored a short dissent that was joined by Justice Alito and starts this way:

Jascha Chiaverini sued several city officials for damages under 42 U.S.C. §1983. He alleged that they violated his Fourth Amendment rights by subjecting him to a malicious prosecution. I continue to adhere to my belief that a “malicious prosecution claim cannot be based on the Fourth Amendment.”  Manuel v. Joliet, 580 U.S. 357, 378 (2017) (ALITO, J., joined by THOMAS, J., dissenting).  Accordingly, I would affirm the dismissal of Chiaverini’s claim.

Justice Gorsuch authored an even shorter dissent that starts this way:

Section 1983 performs vital work by permitting individuals to vindicate their constitutional rights in federal court. But it does not authorize this Court to expound new rights of its own creation.  As this Court has put it, §1983 does not turn the Constitution into a “‘“font of tort law.”’” Albright v. Oliver, 510 U.S. 266, 284 (1994) (Kennedy, J., concurring in judgment) (quoting Parratt v. Taylor, 451 U.S. 527, 544 (1981)).

"Illegitimate Choices: A Minimalist(?) Approach to Consent and Waiver in Criminal Cases"

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

Current doctrine justifies many government searches, interrogations, and deprivations of liberty on the ground that the target of the action “voluntarily” agreed to it or waived applicable rights.  The standard critiques of this doctrine — that these choices are often or always coerced, the result of an unconstitutional condition, or inherently shaped by race, gender, and class — have usually been given short shrift by the courts, leading one of us to question whether the practice of using consent and waiver to deprive someone of basic rights and liberties should be abolished. In the meantime, we jointly wondered if there is a more immediate “minimalist” path forward, drawing on the Supreme Court’s own jurisprudence. 

This article takes the position that in many situations the voluntariness of a person’s choice need not be an issue, because the option the government proffers to that person is legally illegitimate.  Specifically, the “illegitimate choice” test we propose would make concerns about the validity of a person’s choice legally irrelevant in three situations: (1) when Supreme Court caselaw, properly construed, has made it so; (2) when the benefit the government offers is premised on acceptance of a condition that is not narrowly tailored to a compelling interest; or (3) when the benefit the government offers is itself unconstitutional. This approach would call into question searches based on the third-party doctrine, promises of leniency during interrogations, many types of pretrial and post-conviction dispositional conditions, certain waivers associated with plea bargaining, some types of special needs searches, and consent searches conducted in the absence of suspicion. In all of these situations, the illegitimate choice test would avoid difficulties with determining whether a choice is coerced or voluntary, while still maintaining consent as a viable option at other criminal justice decision-points.

Rounding up some early accounts of how Hunter Biden will be sentenced

I have already seen a handful of commentaries mapping out the dynamics of the federal sentencing of Hunter Biden following his conviction on three felonies.  This New York Times piece, headlined "Will Hunter Biden Go to Jail? Here’s What His Sentence Could Look Like," provides these useful particulars:

According to the most recent manual published by the United States Sentencing Commission, which sets recommended sentencing guidelines, someone in Mr. Biden’s position would typically face 15 to 21 months’ imprisonment for offenses related to the unlawful receipt, possession, or transportation of firearms.

From 2019 to 2023, just 52 defendants were sentenced in a similar category as Mr. Biden, and 92 percent were sentenced to serve prison time with a median prison term of 15 months, according to the commission’s data. Around 8 percent of people in that category received probation or a fine.

But judges frequently depart from the suggested guidelines when handing down a sentence and may reduce the time spent in prison in light of the particular circumstances unique to each case.

And here are a few other press pieces discussing some sentencing issues at some length:

From CBS News, "Is Hunter Biden going to prison? What to know about the possible sentence after his conviction"

From PBS News Hour, "What federal guidelines suggest for Hunter Biden’s sentencing"

From the New York Post, "Hunter Biden judge once gave stiff sentence in similar gun case"

From USA Today, "What's next for Hunter Biden? Sentencing, likely appeal and looming trial on tax charges"

Notable new Second Circuit opinion limits grounds for granting 3582(c)(1)(A) sentence reduction

A helpful reader made sure I did not miss a notable new opinion today from a Second Circuit panel reversing a notable sentence reduction under 18 U.S.C. § 3582(c)(1)(A).  The 28-page ruling in US v. Fernandez, No. 22-3122 (2d Cir. June 11, 2024) (available here), gets started this way:

This appeal raises questions as to which claims and arguments a district court is permitted to consider as “extraordinary and compelling reasons” in support of a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), commonly known as a motion for “compassionate release.” Defendant-Appellee Joe Fernandez, then imprisoned in a federal penitentiary, filed this compassionate-release motion seeking a reduction of the mandatory life sentence he was serving for his conviction of murder for hire, in violation of 18 U.S.C. § 1958.

Patrick Darge had hired Fernandez as a “backup shooter” in a scheme to murder two Mexican drug cartel members who had come to New York City to collect payment for more than 270 kilograms of cocaine the cartel had sold to local drug trafficker Jeffrey Minaya.  While Darge (and several other codefendants implicated in the scheme) pleaded guilty to various narcotics, firearms, and murder charges and cooperated with the government, Fernandez went to trial and was convicted.

In 2021, Fernandez filed the instant motion for compassionate release in the district court arguing, in relevant part, that two “extraordinary and compelling reasons” warranted his release: (1) his potential innocence in light of the questionable credibility of Darge, the government’s key witness at trial, and (2) the significantly lower sentences imposed on Fernandez’s co-defendants.  The United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) granted the motion on these grounds, reduced Fernandez’s sentence to time served, and ordered his release.

The government appealed, arguing that the district court abused its discretion because potential innocence is never a permissible “extraordinary and compelling reason[]” for a sentence reduction within the meaning of 18 U.S.C. § 3582(c)(1)(A), and that Fernandez’s sentencing disparity is not an “extraordinary and compelling reason[]” for a sentence reduction on the facts of this case.  We agree with the government that a compassionate release motion is not the proper vehicle for litigating the issues Fernandez has raised, irrespective of whether his mandatory life sentence is unjust. We therefore reverse the judgment of the district court.

The discussion of sentencing disparity as a legal basis for possible sentence reduction is quite nuanced, and it includes a lengthy footnote starting with this sentence: "We cannot foreclose the possibility that significant sentencing disparities, even between a defendant who went to trial and a co-defendant who pleaded guilty and cooperated, might, in some unusual circumstances, warrant a finding of 'extraordinary and compelling' reasons to grant a sentence reduction."   In addition, the innocence discussion is also dynamic.  But, nuances aside, this ruling would seem to greatly hinder claims of actual innocence or general co-defendant sentencing dispartity as a basis for seeking a sentece reduction.

What facts should matter (and not matter) most at federal sentencing after Hunter Biden is convicted by jury on three felony counts?

These are heady times for historic sentencing proceedings.  As New York state actors are working through the process of preparing for former President Donad Trump's state sentencing after his conviction last month on 34 state felony counts following a lengthy trial, we know now that federal actors need to start working through the process of preparing for current President Joe Biden's son, Hunter, to be federally sentenced after his conviction today on three federal felony counts following a short trial.  Here are the basics via the New York Times' latest live update:

A jury in Wilmington, Del., on Tuesday found Hunter Biden, President Biden’s long-troubled son, guilty of three felony counts of lying on a federal firearms application in 2018, a grievous personal blow to the Biden family as his father enters the final months of a brutal re-election campaign.  He could face up to 25 years in prison, but first-time offenders who did not use their weapons to commit a violent crime typically receive no jail time....

Here’s what else to know:

A sentencing date was not set: The judge in the case, Maryellen Noreika, did not set a date for sentencing, but said it would typically be about 120 days after the verdict — that’s early October, or about a month before the election. Although the maximum possible sentence Mr. Biden faces is more than two decades behind bars and $750,000 in fines, federal sentencing guidelines call for a fraction of that penalty.

No pardons are coming: President Biden has said he will not pardon his son.  The president kept his distance from the trial and was out of office on Oct. 12, 2018, when Hunter Biden asserted he was drug-free on a background check at a time when he was addicted to crack cocaine.

His legal troubles are not over: The Delaware case, brought by the special counsel David C. Weiss, is widely regarded as the least serious of the two federal indictments against Hunter Biden brought last year.  He still faces serious tax charges in Los Angeles stemming from his failure to pay the government during a yearslong crack, alcohol and spending binge; the trial is scheduled to start in September.

I have not yet sought to work through the likely (advisory) guideline calculations for Hunter Biden, but I have already seen reports that the estimated guideline range would be for over a year of federal prison time.  Even after the Supreme Court made the guidelines advisory, federal judges are duty bound to still consider them at sentencing along with the other sentencing factors detailed by Congress in 18 USC § 3553(a).

But, of course, many of the instructions in 3553(a) are quite vague -- eg, judges must consider the "nature and circumstances of the offense and the history and characteristics of the defendant."  That vague phrase and others in federal sentencing law prompt the question in the title of this post.  Should Judge Noreika give particular weight to, or make a focused effort to limit her consideration of, Hunter Biden's struggles with addiction at the time of his offenses?  His indictments on various other alleged crimes and other alleged misbehaviors?  The wide range of unique consequences associated with being the son of a president?

"DPA Discounts"

The title of this post is the title of this new paper now available via SSRN authored by Todd Haugh and Mason McCartney. Here is its abstract:

There is a longstanding debate over the propriety of corporate deferred and nonprosecution agreements, those semi-private settlements entered into between prosecutors and companies under criminal investigation.  That debate is occurring in the shadow of the growing use of these DPAs and NPAs, a trend that recent DOJ policy changes suggest will only increase.  Regardless of where one stands on the debate, all agree that the fair, consistent, and transparent awarding and application of these agreements is paramount. 

Based on an empirical analysis of more than ten years of DPAs and NPAs used in Foreign Corrupt Practices Act cases, we find that the monetary penalties imposed on companies are consistently discounted below the low end of the fine range calculated pursuant to the Organizational Sentencing Guidelines, sometimes even below the monetary benefits companies received from their wrongdoing.  Further, the culpability score calculations made pursuant to the Guidelines, which are designed to calibrate a company's ultimate penalty with its level of wrongdoing, are not statistically significant in determining penalties.  Instead, it appears a hardened norm has developed at the DOJ of giving an almost uniform 25% discount off the low end of the fine range regardless of a company's culpability.  This norm is remarkably consistent despite wide variability in corporate behavior and the likely bargaining positions of prosecutors and corporate defendants.  These findings call into question the current oversight of DPAs and NPAs and, ultimately, their use in combatting corporate crime, thereby shedding new empirical light on what has become the primary means of holding our most high-profile corporate wrongdoers accountable.

"How Neuroscience Can Improve the Sentencing of Defendants with Autism Spectrum Disorder"

The title of this post is the title of this book chapter now available via SSRN authored by Colleen Berryessa and Carolina Caliman. Here is its abstract:

Defendants with Autism Spectrum Disorder (ASD) face a myriad of difficulties at every stage of the legal process-which not only can negatively affect their experiences in court but also the fairness, efficacy, and legitimacy of their outcomes at sentencing.  This chapter explores how advances in neuroscience can help positively impact the sentencing and aftercare of defendants with ASD in the United States, specifically focusing on the role of neuroscience in shaping more appropriate and prosocial legal decision-making during the sentencing proceedings of diagnosed defendants.

First, the chapter will discuss how neuroscience may aid legal decision-makers to better contextualize an ASD diagnosis and its neurodiversity during sentencing proceedings.  Then, it will explore how neuroscience can be used to cultivate better models of care and service innovations when developing and implementing sentencing accommodations for defendants with ASD.  Finally, the chapter will describe how neuroscience is being used to increase the education, awareness, and training of legal decision-makers, including judges, attorneys, and court personnel, on ASD and its forensic relevance to sentencing and other legal processes.

Rounding up some early commentary on the coming sentencing of Donald Trump

I have already seen an number of notable commentaries on the upcoming sentencing of Donald Trump, and I figured it worthwhile to round some of them up here:

From MSNBC authored by Frank Bowman, "The case for imprisoning Donald Trump: Trump’s status renders his offense far more serious and his behavior during the case indefensible, thus making a prison sentence more plausible."

From National Review authored by Jeffrey Blehar, "Is Judge Merchan Crazy Enough to Give Trump Jail Time?"

From the New York Times authored by Norman Eisen and Nancy Gertner, "Should Trump Be Sentenced to Prison? Two Opposing Views."

From the Washington Post authored by Ruth Marcus, "Will Trump do time in jail? Here’s how Justice Merchan should rule."

From the Washington Post authored by Jennifer Rubin, "The best argument to lock up Trump: Merchan must protect the judiciary"

Prior recent related posts:

• Some sentencing basics after former President Donald Trump's convictions on 34 felony New York counts 
• Will Donald Trump make a statement on his behalf at his upcoming sentencing?
• Could Donald Trump, as felon dispossessed of guns, (further) impact Second Amendment jurisprudence? 

"'Cruel and Unusual' in 1689, 1791, and 1868: Shifts in Incorporation"

The title of this post is the title of this notable article that I just came across on SSRN authored by Gregory Velloze.  Here is its abstract:

Recently, the Supreme Court has acknowledged the scholarly debate over whether to apply the historical understanding of the Bill of Rights as ratified in 1791 or as incorporated through the Fourteenth Amendment in 1868.  This acknowledgment raises two important issues with regards to the Cruel and Unusual Punishments Clause.  First, the Cruel and Unusual Punishments Clause was copied from the English Bill of Rights in 1689, generating a third, additional time period relevant to its historical understanding.  Second, the more textualist framework of the Cruel and Unusual Punishments Clause allows for more relatively bounded language and interpretation, which could remain unchanged through each time period.  And if the Eighth Amendment’s textual principles could remain intact, even while its expected applications changed over time, each incorporation would represent a shift in construction rather than in a shift in interpretation.  As such, the Cruel and Unusual Punishments Clause maintains its longstanding function of prohibiting punishments that are unjustifiably more severe (cruel) and contrary to the ordinary standards of law (unusual) despite changing expected applications against extralegal courts, federal overreach, and discrimination. 

Another notable press release from Senator Kennedy about US Sentencing Commission decision-making

In this post from April, I highlighted a notable press release from Senator John Kennedy concerning a bill he introduced, titled the  "Consensus in Sentencing Act," which would require amendments to the US Sentencing Guidelines to receive five votes from the Commission’s seven voting members.  I mentioned at the time that I doubted this bill would get enacted anytime soon, if ever, but that the bill's very introduction highlighted that recent actions of the Commission are garnering notable attention.

Against that backdop, this new press release from Senator John Kennedy declares in its title "Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines." Here is the main text:

Sen. John Kennedy (R-La.), a member of the Senate Judiciary Committee, met with Judge John Gleeson, a member of the U.S. Sentencing Commission, to discuss the unprecedented recent breakdown in bipartisan decision-making at the Commission.

In the meeting, Kennedy shared his concerns about the partisan path that the Commission has taken in recent years.  In a sharp break from its traditional bipartisan practices, the Commission has forced through several major policy changes to federal sentencing rules on a party-line basis.

Gleeson acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.

“We’re talking about public safety and the rule of law here, and I’m very, very glad to hear that the Commission is returning to its history of making changes only when there’s bipartisan agreement. I look forward to seeing the fruits of this commitment,” said Kennedy.

I believe that US Sentencing Commissioner Gleeson is awaiting reconfirmation by the US Senate to serve another term on the USSC.  So I suppose it is not too unusual for Commissioner Gleeson to be meeting with Senator Kennedy, but I am unsure how a single commissioner (who is not the Chair) can fully predict the future actions of the full Commission.  But, for anyone following the (sentencing-nerd) drama of US Sentencing Commission decision-making, this latest press release reflects another interesting chapter in the story.

Notable new accounting of parole practices in South Carolina

In this post a couple of weeks ago, I flagged this Bolts article about parole practices in Virginia.  That detailed piece detailed bow parole grants have declined considerably in the Old Dominion State.  Now Bolts has a new piece focused on parole practices in the Palmetto State titled "Parole Plunges in South Carolina as Governor-Appointed Board Issues Denial After Denial."  I also recommend this piece in full, and here is how it gets started:

After appearing before the South Carolina Board of Paroles and Pardons more than 500 times in the past 35 years, lawyer Douglas Jennings announced last year that he had participated in his final hearing.  It had become routine for the board to reject his clients, regardless of how much he showed that they’d changed since their crime.  “I just couldn’t justify taking somebody’s money as a fee to appear before the parole board when I didn’t feel good about being able to produce the right results for them,” he told Bolts.

The panel, which Jennings has nicknamed “the rejection board”, has made it increasingly difficult for prisoners to win parole in South Carolina. In 2018, it released roughly four out every 10 people who applied.  The odds of release have declined since then: By 2022, the board only approved one out of every 10 petitions.  Last year, the board’s grant rate was seven percent.  This downward trend has continued into 2024. In the first four months of this year, the board approved only 5 percent of more than 900 parole applications, according to data provided by the board.

Declining parole rates in South Carolina are part of a national trend.  Parole, which permits early release for eligible prisoners who exhibit good behavior and have a low risk of committing another crime, has fallen across the country in recent years as parole boards have succumbed to political pressure and media narratives that stoke fears about crime. Between 2019 and 2022, grant rates plummeted in 18 out of 27 states surveyed by the the Prison Policy Initiative, a criminal justice reform research organization.  Often, this decline has directly stemmed from state officials’ desire to crack down on release, and to the professional and ideological backgrounds of the people they appoint to parole boards, as Bolts has reported recently about the parole boards in Alabama and Virginia.

"Congress Must Abolish Acquitted Conduct Sentencing"

The title of this post is the title of this new Law 360 commentary authored by Marc Levin and Martín Sabelli. I recommend the ful piece, and here are snippets:

As shocking as this might be, federal law allows judges to impose a sentence based on acquitted conduct if the jury has convicted on at least one count.

Why? Because juries decide guilt or innocence using a reasonable doubt standard, and judges impose sentences based on a "more likely than not" standard.... Does this scenario seem even remotely close to what the framers intended by trial by jury, or what most of us believe is fair?

Allowing judges to impose severe sentences where juries have acquitted defendants undermines the fundamental principles of trial by jury, innocent until proven guilty, due process, double jeopardy and reasonable doubt — the heart of the Fifth and Sixth Amendments. Shifting this power from juries to judges also opens the door for individual biases, because the inherent diversity of a jury operates as a check on individual biases.

Unsurprisingly, this practice has been criticized by advocates across the political spectrum. While federal courts have allowed the practice, as our prisons have overflowed, some state courts have held the practice unconstitutional. Also, a host of prominent jurists, including Justices Antonin Scalia, Ruth Bader Ginsburg and Clarence Thomas, have criticized the practice.

Can we fix this problem and restore trial by jury as intended by the framers? On April 17, the U.S. Sentencing Commission — a body charged with revising sentencing rules — imposed some limits on the use of acquitted conduct in sentencing. While these changes are a welcome improvement, they still leave the door open to considering acquitted conduct in sentencing in many circumstances.

We need to go further. Congress should give life to the individual rights embedded in the Fifth and Sixth Amendments by eliminating the practice altogether.

In a positive step, a coalition of Democrats and Republicans introduced a bill to end this practice last year. The bipartisan bill, called the Prohibiting Punishment of Acquitted Conduct Act, would prohibit federal judges from considering conduct for which an individual was acquitted, unless consideration of the conduct would reduce the sentence. An identical bill passed the U.S. House of Representatives in the last Congress by a vote of 405 to 12. The bill recently passed the House Judiciary Committee unanimously. The Senate should now pass this bipartisan bill....

Jury trials — and respect for jury verdicts — protect each of us, our families and our communities. Unjust technicalities like sentencing for acquitted conduct undermine the role of juries and our bedrock founding principle that people should not be punished until proven guilty.

Part 1 of "Drugs on the Docket" podcasts on fake stash-house stings now available

In this post earlier this week, I previewed that the Drug Enforcement and Policy Center at The Ohio State University was about to start releasing episodes from Season Two of the "Drugs on the Docket" podcast.  Excitingly, as detailed on this podcast webpage, today brought the release of the first episode of this new season.  (And all of the first season's episodes are all still  available via Apple Podcasts and YouTube.)  This first episode to kick-off Seanson 2 is actually part of a extended discussion that was so chock full of content that it became a two-part series described this way at the podcast webpage:

Season 2 Episode 1 – Stash house stings with Alison Siegler and Erica Zunkel (Part 1 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, kick off Season 2 with guests Alison Siegler and Erica Zunkel from the University of Chicago.  Part 1 of this two-part episode focuses on clients ensnared in undercover stash house sting operations carried out by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and how the Federal Criminal Justice Clinic at the University of Chicago Law School sought to prove that the ATF violated the 14th Amendment Equal Protection Clause by discriminating on the basis of race when selecting its targets.

Alison Siegler is Clinical Professor of Law and Founding Director of the Federal Criminal Justice Clinic at the University of Chicago Law School; Erica Zunkel is Clinical Professor of Law at the University of Chicago Law School and teaches in the school’s Criminal and Juvenile Justice Clinic.

The many remarkable legal and policy stories that surround the fake stash-house stings continue to amaze me, and I am extremely grateful to have been part of this effort to tell parts of the story via these podcasts.  I encourage everyone to have a listen.

Will Donald Trump make a statement on his behalf at his upcoming sentencing?

Though Donald Trump just prior to trial stated that he would testify at his his New York state criminal trial, he ultimately decided  not to take the stand.  That choice was greatly influenced, I suspect, by the fact that taking the stand at trial would have subjected him to cross-examiniation by the prosecution and the risk of additional legal troubles if he were not entirely truthful when giving sworn testimony under oath.

But with the New York criminal jury trial concluded and Trump's sentencing on 34 felony counts now scheduled for July 11, what Trump can say on his own behalf takes on a different posture.  Specifically, New York criminal procedure law provides that before sentencing, the court must hear not only from the prosecution and defense attorneys, but the "defendant also has the right to make a statement personally in his or her own behalf."  I presume this personal statement in the courtroom prior to sentencing does not have to be provided under oath, nor is it subject to cross-examination.  In other words, Trump will have an opportunity to make a statement in the courtroom at his sentencing that is not subject to some legal and strategic consequences that likely led him to decide not to testify during his trial.

That said, any statement by Trump at his sentencing still could be full of legal risks.  In some cases, defense attorneys counsel their clients not to make any significant statements at sentencing if fearful that statement might rub the sentencing judge the wrong way.  And, in light of Trump's many out-of-court comments about his legal predicament, I could not help but thinking of this legendary passage from the late Judge Marvin Frankel's legendary book, Criminal Sentences: Law Without Order: 

[During] a casual anecdote over cocktails in a rare conversation among judges touching the subject of sentencing,  Judge X ... told of a defendant for whom the judge, after reading the presentence report, had decided tentatively upon a sentence of four years' imprisonment.  At the sentencing hearing in the courtroom, after hearing counsel, Judge X invited the defendant to exercise his right to address the court in his own behalf.  The defendant took a sheaf of papers from his pocket and proceeded to read from them, excoriating the judge, the "kangaroo court" in which he'd been tried, and the legal establishment in general.  Completing the story, Judge X said, "I listened without interrupting.  Finally, when he said he was through, I simply gave the son of a bitch five years instead of the four." 

I think it will be quite interesting to see if Trump decides to exercise his right under New York law "to make a statement personally" prior to his sentencing.  The predicted strategic costs/benefits for testifying at trial led to nearly all legal pundits predicting Trump would not take the stand, and they proved right.  But with the calculations and context different in a sentencing proceeding, I am not quite sure what to expect.   

Some sentencing basics after former President Donald Trump's convictions on 34 felony New York counts

I am not an expert on New York sentencing law and practice, though I expect a whole lot of folks will soon be opining on these topics now that former President Donald Trump has been convicted by a jury on 34 New York felony counts.  This CBS News piece seems to review some sentencing basics pretty well:

Trump was convicted by the jury Thursday on 34 felony counts for falsifying business records to conceal a $130,000 payment to adult film star Stormy Daniels to buy her silence before the 2016 presidential election.  The jury in Manhattan returned a guilty verdict after a trial that stretched six weeks and featured more than 20 witnesses.

Each of the 34 felony charges carries up to a $5,000 fine and four-year prison sentence.  But whether Trump will go to prison is another question — one that's up to the judge at sentencing.  The judge set a July 11 date for sentencing following the jury's verdict on Thursday.

The timing is in line with similar white-collar felony cases, where sentencing often takes place anywhere from three to eight weeks after conviction, according to Dan Horwitz, a defense lawyer who formerly prosecuted white-collar cases for the Manhattan District Attorney's office.  The sentencing will happen four days before the start of the Republican National Convention.

The minimum sentence for falsifying business records in the first degree is zero, so Trump could receive probation or conditional discharge, a sentence of no jail or up to four years for each offense.  Trump would likely be ordered to serve the prison time concurrently for each count, so up to four years, total.

"The judge could sentence him to anything between zero and the max," Horwitz said. "So he could sentence him to a period of months in jail, he could sentence him to a period of weeks in jail, he could sentence him to a sentence where he is required, for example, to go to jail every weekend for a period of time and then serve the rest of the sentence on probation."

In an analysis of comparable cases brought by the Manhattan district attorney's office, Norm Eisen, who has written a book about Trump's 2020 election-related federal indictment and served as special counsel in the first impeachment of the former president, found that about 10% resulted in imprisonment.  But the circumstances surrounding the case make any across-the-board comparison difficult.

Trump could also be sentenced to home detention, where he would wear an ankle bracelet and be monitored rather than going to jail.  Horwitz suggested that a home detention sentence, which walks a middle ground between no punishment and a stint in state prison, might be the most likely outcome.  It would also satisfy Trump's unusual security and political situation.

A home detention sentence would also make it possible for Trump to continue campaigning — albeit virtually — with the ability to hold news conferences and remain active on social media....

There are a number of factors that the court can take into consideration for sentencing, including the nature and extent of the conduct, who was hurt, whether there are victims, and acceptance of responsibility, Horwitz said.  Trump has repeatedly denied any guilt in the case....

A defendant's conduct during the trial may also play a role, so Trump's repeated violation of Merchan's gag order may be a significant factor in his sentencing. During the trial, Trump was accused over a dozen times of violating a gag order preventing him from making public comments about likely witnesses, jurors, attorneys and court staff involved in the case.

Whatever Trump's formal sentence, he is certain to endure any number of formal and informal collateral consequences as a result of his convictions.  This Politico article flags an interesting one in its headline: "There’s a real possibility Trump can’t vote in November."

Though I suspect lots of folks may be eager to discuss lots of issues beyond the specifics of Trump's upcoming NY sentencing, I would be eager to hear as much discussion of sentencing law and practice as possible in the comments.  I say that in part because there are so many interesting and intricate sentencing issues that arise in this historic and controversial case.  For example, should state prosecutors assert that, and should Merchan consider, Trump's other alleged criminal behaviors as detailed in three other pending criminal indictments are aggravating factors calling for a more severe sentence?    

By 6-3 vote, SCOTUS rejects Ninth Circuit reversal of Arizona death sentence in Thornell v. Jones

In its one criminal decision among three new opinions handed down by the Supreme Court this morning, the Justices by a 6-3 vote reversed a Ninth Circuit ruling in the capital case of in Thornell v. Jones, No. 22-982 (S. Ct. May 30, 2024) (available here).  Justice Alito authored the opinion for the Court, which starts and ends this way:

In this case, we review a decision of the Ninth Circuit ordering the resentencing of a defendant who, in order to steal a gun collection, committed three gruesome killings, including the cold-blooded murder of a 7-year-old girl.  The Ninth Circuit held that the defendant’s Sixth Amendment right to the effective assistance of counsel was violated during the sentencing phase of his capital trial.  In reaching this conclusion, the Ninth Circuit substantially departed from the well-established standard articulated by this Court in Strickland v. Washington, 466 U. S. 668 (1984).  Among other things, the Ninth Circuit all but ignored the strong aggravating circumstances in this case. As a result, we must reverse the judgment below....

When a capital defendant claims that he was prejudiced at sentencing because counsel failed to present available mitigating evidence, a court must decide whether it is reasonably likely that the additional evidence would have avoided a death sentence.  This analysis requires an evaluation of the strength of all the evidence and a comparison of the weight of aggravating and mitigating factors.  The Ninth Circuit did not heed that instruction; rather, it downplayed the serious aggravating factors present here and overstated the strength of mitigating evidence that differed very little from the evidence presented at sentencing. Had the Ninth Circuit engaged in the analysis required by Strickland, it would have had no choice but to affirm the decision of the District Court denying habeas relief.  We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Interestingly, Justuce Sotomayor's dissenting opinion (which was joined by Justice Kagan), agrees with the majority that the Ninth Circuit erred in its ineffective assistance prejudice inquiry, but she dissent because she "would vacate the judgment below and remand for the Ninth Circuit to consider the full record in the first instance."

In contrast, Justice Jackson dissents on the merits, and here opinion starts this way:

In its search for legal error in this capital habeas case, the Court makes many mistakes of its own, including misreading the Ninth Circuit’s opinion. I write separately to emphasize a particular misstep: the Court’s conclusion that “the Ninth Circuit all but ignored the strong aggravating circumstances in this case.” Ante, at 1. In my view, the Ninth Circuit’s analysis satisfied its obligations under Strickland v. Washington, 466 U.S. 668 (1984).

Justice Gorsuch dissents from cert denial in case contesting SCOTUS precedent allowing six-member criminal juries

Today's order list from the Supreme Court has one (non-criminal) grant of certiorari as well as one opinion dissenting from a (criminal) denial of certiorari.  This opinion, in Cunningham v. Florida, No. 23–5171, was authored by Justice Gorsuch, and jury-trial fans will want to read all three pages.  Here is how it starts and ends:

“For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community.” Khorrami v. Arizona, 598 U.S. ___, ___ (2022) (GORSUCH, J., dissenting from denial of certiorari) (slip op., at 9).  Acutely concerned with individuals and their liberty, the framers of our Constitution sought to preserve this right for future generations.  See id., at ___–___ (slip op., at 2–3); Art. III, §2, cl. 3; Amdt. 6. Yet today, a small number of States refuse to honor its promise. Consider this case: A Florida court sent Natoya Cunningham to prison for eight years on the say of just six people.

Florida does what the Constitution forbids because of us.  In Williams v. Florida, this Court in 1970 issued a revolutionary decision approving for the first time the use of 6member panels in criminal cases. 399 U.S. 78, 103. In doing so, the Court turned its back on the original meaning of the Constitution, centuries of historical practice, and a “battery of this Court’s precedents.” Khorrami, 598 U. S., at ___ (slip op., at 6)....

Respectfully, we should have granted review in Ms. Cunningham’s case to reconsider Williams. In the years since that decision, our cases have insisted, repeatedly, that the right to trial by jury should mean no less today, and afford no fewer protections for individual liberty, than it did at the Nation’s founding.  See, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000); Ramos v. Louisiana, 590 U. S. 83 (2020).  Repeatedly, too, our cases have warned of the dangers posed by the gradual “‘erosion’” of the jury trial right.  Apprendi, 530 U.S., at 483 (quoting Jones v. United States, 526 U.S. 227, 248 (1999)). Yet when called upon today to address our own role in eroding that right, we decline to do so. Worse still, in the last two years we have now twice turned away thoughtful petitions asking us to correct ourmistake in Williams.  See Khorrami, 598 U.S., at ___ (slip op., at 10).

If there are not yet four votes on this Court to take up the question whether Williams should be overruled, I can only hope someday there will be. In the meantime, nothing prevents the people of Florida and other affected States from revising their jury practices to ensure no government in this country may send a person to prison without the unanimous assent of 12 of his peers.  If we will not presently shoulder the burden of correcting our own mistake, they have the power to do so. For, no less than this Court, the American people serve as guardians of our enduring Constitution.

"Regressive White-Collar Crime"

The title of this post is the title of this new article authored by Stephanie Holmes Didwania available via SSRN. Here is its abstract:

Fraud is one of the most prosecuted crimes in the United States, yet scholarly and journalistic discourse about fraud and other financial crimes tends to focus on the absence of so-called “white-collar” prosecutions against wealthy executives.  This Article complicates that familiar narrative. It contains the first nationwide account of how the United States actually prosecutes financial crime.  It shows — contrary to dominant academic and public discourse — that the government prosecutes an enormous number of people for financial crimes and that these prosecutions disproportionately involve the least advantaged U.S. residents accused of low-level offenses.  This empirical account directly contradicts the aspiration advanced by the FBI and Department of Justice that federal prosecution ought to be reserved for only the most egregious and sophisticated financial crimes.  This Articles argues, in other words, that the term “white-collar crime” is a misnomer.

To build this empirical foundation, the Article uses comprehensive data of the roughly two million federal criminal cases prosecuted over the last three decades matched to county-level population data from the U.S. Census.  It demonstrates the history, geography, and inequality that characterize federal financial crime cases, which include myriad crimes such as identity theft, mail and wire fraud, public benefits fraud, and tax fraud, to name just a few.  It shows that financial crime defendants are disproportionately low-income and Black, and that this overrepresentation is not only a nationwide pattern, but also a pattern in nearly every federal district in the United States.  What’s more, the financial crimes prosecuted against these overrepresented defendants are on average the least serious.  This Article ends by exploring how formal law and policy, structural incentives, and individual biases could easily create a prosecutorial regime for financial crime that reinforces inequality based on race, gender, and wealth.

Former Baltimore prosecutor Marilyn Mosby gets a year of home detention in federal sentencing for perjury and fraud

As reported in this AP piece, a "former Baltimore city prosecutor who achieved a national profile for charging police officers in a Black man’s death was spared any prison time in her sentence Thursday for perjury and mortgage fraud. Marilyn Mosby’s sentence includes 12 months of home confinement, 100 hours of community service and three years of supervised release." Here is more: 

Mosby was convicted of lying about her finances to make early withdrawals from retirement funds during the COVID-19 pandemic, and fraudulently claiming that her own $5,000 was a gift from her then-husband as she closed on a Florida condominium.

Mosby, 44, has maintained her innocence. She declined to address U.S. District Judge Lydia Kay Griggsby before learning her sentence. Her lawyers said they would appeal while they seek a presidential pardon,

It’s a sad day for Mosby and her family, the judge told Mosby. “It’s also a sad day for the city of Baltimore,” said Griggsby, adding that Mosby displayed a “pattern of dishonesty” while serving in a public office. She also noted that her crimes didn’t involve any taxpayer money and said the prospect of separating Mosby from her two young daughters “weighed very heavily” on her decision.

Griggsby questioned Assistant U.S. Attorney Sean Delaney when he argued for a 20-month sentence. “Are there victims and who are they?” she asked. “It’s a good question, your honor,” Delaney responded. “I get it. This isn’t an embezzlement case.”

Delaney said it harms the public when a public official lies under oath: “All citizens are victims when their public officials lie,” he said. Delaney also denied claims by Mosby’s supporters that she is a victim of selective prosecution and said she has repeatedly lied about the case and prosecutors’ handling of it. “These lies demonstrate that Marilyn Mosby is unremorseful, that she has no regard for the truth,” Delaney said.

Mosby, 44, gained a national profile when she charged officers in the 2015 death of Freddie Gray, which led to riots and protests in the city. After three officers were acquitted, Mosby’s office dropped charges against the other three officers. She ultimately served two terms before she was indicted and lost reelection. The judge told one of Mosby’s attorneys, James Wyda, that Mosby’s lack of contrition “weighs heavily” on her sentencing. “That’s of deep concern to the court,” she said, calling it “a barrier” to their request for no prison time.

Wyda argued that Mosby is “in a category of one,” a unique case. “This is not a public corruption case,” he said. “There was no financial loss to any victim.” Wyda, a federal public defender, said Mosby’s legal team will be appealing her conviction and sentence while also seeking a presidential pardon. “Jail is not a just sentence for Ms. Mosby. Not for her family. Not for the community,” he said.

Prior related post:

• Any predictions for this week's scheduled sentencing of former Baltimore prosecutor Marilyn Mosby?

"Padilla's Broken Promise: Pennsylvania Case Study"

The title of this post is the title of this new article authored by Mikaela Wolf-Sorokin, Liz Bradley and Whitney Viets (which caught my eye, in part, because I am in the Keystone state today for this event). Here is its abstract:

In 2010, the Supreme Court held in Padilla v. Kentucky that criminal defense attorneys have a constitutional obligation to advise noncitizen clients of the immigration consequences of a guilty plea in criminal court proceedings.  Though it has been over a decade since the decision, little research has been done regarding Padilla’s implementation by defense counsel on a statewide level.  This Article provides findings from a case study on Padilla advising in Pennsylvania. Pennsylvania is unique because its state courts have interpreted Padilla narrowly and permit immigration advisals that would be deemed constitutionally deficient in other jurisdictions.  Pennsylvania also does not have a state-funded public defense system, which means standards for indigent representation vary by county.

Interviews with public defenders and prosecutors in Pennsylvania reveal significant variation in the scope of advice provided to noncitizens in criminal court proceedings and the willingness of district attorney offices to consider immigration status during plea negotiations.  Each Pennsylvania county has an individual method of identifying noncitizen clients, analyzing immigration consequences, warning clients of these adverse consequences, and negotiating with district attorneys.  The scope of advice provided to noncitizens and counsel’s understanding of their Padilla obligations vary considerably in both content and scope.  Counties suffer from Pennsylvania’s systemic failure to provide adequate funding to public defense offices to ensure that they can effectively comply with Padilla — a problem that is especially salient in a state with limited postconviction remedies for those who receive deficient advice. Based on these findings, this Article offers various policy recommendations that would improve the criminal defense representation of noncitizens in Pennsylvania.  While these findings and recommendations are specific to Pennsylvania, they are relevant to nationwide research on Padilla’s impact and what can be done to promote immigration-conscious criminal defense advocacy.

"Misdemeanor Declination: A Theory of Internal Separation of Powers"

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

Millions of times every year, American prosecutors make the all-important decision whether to decline or file formal criminal charges after police have made an arrest.  This declination decision determines whether an arrest will become a full-fledged criminal case and thus whether an individual arrestee will become a defendant.  It establishes the classic dividing line between investigation and adjudication, triggering numerous constitutional consequences. Through declination, prosecutors also check and regulate police decision-making within the executive branch.  In an era of racialized mass incarceration, prosecutorial declination can function as a mode of equitable gatekeeping, regulating the impact of sloppy or biased policing practices on communities, courts, and the rest of the criminal pipeline.  It is therefore a unique structural moment of institutional and constitutional significance.

Declination is especially influential because police and prosecutors are the two main decision-makers within the carceral executive branch.  This Article conceptualizes the relationship between them as an overlooked example of internal separation of powers, with the declination decision as its most impactful regulatory moment.  Administrative law teaches that intrabranch checks are vital, especially when interbranch separation of powers has proven ineffective as it famously has with respect to the penal executive.  The prosecutorial declination decision, in turn, is an especially promising intrabranch checking tool.  It offers decisional friction, oversight, and accountability within the executive at precisely the moment when good law enforcement decision-making makes a big difference for millions of people.

In our massive misdemeanor system, this regulatory promise usually fails.  Misdemeanor prosecutors routinely rubber-stamp police arrest decisions and convert arrests automatically into formal charges: namely, they abdicate their screening and checking functions by deferring to police.  Misdemeanor declination rates are typically very low — often less than five percent — which means that police effectively get to decide not only who will be arrested but who will be formally charged with a crime.  This is not how the criminal system is supposed to work.  In administrative law terms, such prosecutorial abdication is a violation of basic branch design and a worrisome species of intrabranch collusion. It is, however, neither universal nor foreordained.  Around the country, many newly elected prosecutors have embraced strong misdemeanor declination policies, not only as a way of checking police but increasing equity, efficiency, and accountability.  Such policies exemplify how misdemeanor declination is an underappreciated opportunity to regulate the penal executive from within and to mitigate the excesses and injustices of the low-level carceral state.

Notable new accounting of parole practices in Virginia

The digital magazine Bolts has this new article about parole in Virginia under the headline, "Under Glenn Youngkin, Parole in Virginia Has Nearly Vanished."  The full piece has all sorts of detailed stories and some data about old and new parole practices in the Old Dominion state.  Here are short excerpts from a lengthy piece:

Under past Democratic administrations, Virginia already had one of the harshest parole systems in the nation, with single-digit annual approval rates.  But parole grants have declined even further since Republican Governor Glenn Youngkin began to overhaul the parole board in 2022, dipping to an approval rate of just 1.6 percent in 2023.  So far this year, Youngkin’s parole board has approved only eight of the 628 applications it considered, a grant rate of 1.3 percent, according to Mother Jones’ and Bolts’ analysis.  In March, ... the board approved only 2 out of the 117 cases it considered....

Parole board decisions could soon at least become less opaque in Virginia.  Last year, Youngkin signed a bipartisan transparency bill into law that the ACLU touted as “the biggest reform of Virginia’s parole system since 1994.”  Under the new law, which takes effect in July, the board will have to publish more regular detailed reports with individualized reasons on grants and denials, and parole review hearings will be required to include interviews with candidates themselves.  The bill also gives parole applicants and their attorneys access to all of the information being considered by the board.

"A Critical Assessment of the First Step Act’s Recidivism-Reduction Measures"

The title of this post is the title of this new article authored by Raquel Wilson that was recently published.  Here is its abstract:

The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.

The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually.  The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons (“BOP”) by allowing participants to earn additional time credits that reduce their sentence.  Yet Congress excluded from its incentive program many violent offenders as well as others convicted of non-violent offenses relating to immigration and drug trafficking.  This Article argues that this exclusion was a critical mistake for several reasons: (1) Programming such as cognitive behavioral therapy has been shown to be most effective for offenders who pose the highest risk of recidivism, including violent offenders; (2) Given limited resources in the BOP, incentivizing participation among only non-violent offenders will likely result in less programming for violent offenders; (3) The BOP already exhibits significant shortcomings in its ability to properly calculate release dates, and forcing the BOP to calculate time credits based on a complex list of excluded offenses will only create additional administrative burdens that may result in more inaccuracy in release dates; and (4) In creating a politically-driven list of excluded offenders, Congress missed an opportunity to focus on data-driven reforms to reduce crime and risks to public safety.

A better approach would be a simpler, more straightforward one that would be easier for the BOP to administer and that would incentivize participation of all people in prison who will be released into local communities.  Congress has expert bodies with which it can consult, including the social science arm of the Department of Justice and the United States Sentencing Commission.  Allowing expert bodies to make decisions and recommendations can insulate both Congress and the President from the political backlash that sometimes hampers meaningful criminal justice reform. Finally, federal judges can be trusted with release decisions.  Judges demonstrated strong adherence to Sentencing Commission guidance when ruling on compassionate release motions once Congress allowed people in prison to file for early release under that statutory provision.  Congress should consider creating a second-look provision that would allow federal judges to apply Commission guidance to early release petitions, taking into account successful completion of recidivism-reducing programs.

World's greatest (golf) driver gets (over?) charged for reckless driving on way to PGA Championship

I have been looking forward to spending my weekend mostly ignoring work while watching the PGA Championship to see if World No. 1 golfer Scottie Scheffler could secure the second leg of the Grand Slam after his impressive Masters victory last month.  But an unfortunate incident, as detailed in this Fox News story, now has me thinking about work in conjunction with Scheffler as I trying to figure out Kentucky criminal procedure and sentencing law.  Here are some particulars in a story that I still find stunning:

Scottie Scheffler ended Thursday within striking distance of the lead in hopes of winning the first PGA Championship of his career, but Friday got off to a rough start. Scheffler was arrested and charged after he allegedly failed to follow police orders as he was about to enter Valhalla Golf Course in Louisville, Kentucky, for the second round of the tournament. He released a statement before he teed off in the second round.

"This morning, I was proceeding as directed by police officers. It was a very chaotic situation, understandably so considering the tragic accident that had occurred earlier, and there was a big misunderstanding of what I thought I was being asked to do," he said. "I never intended to disregard any of the instructions. I’m hopeful to put this to the side and focus on golf today...."

ESPN reported that Scheffler drove past a police officer in his SUV with markings on the door indicating it was a PGA Championship vehicle. The officer screamed at him to stop and then attached himself to the car until Scheffler stopped his vehicle about 10 yards later. ESPN reporter Jeff Darlington characterized it as a "misunderstanding with traffic flow" as authorities were investigating a traffic fatality earlier in the morning.

"Scheffler was then walked over to the police car, placed in the back, in handcuffs, very stunned about what was happening, looked toward me as he was in those handcuffs and said, ‘Please help me,’" Darlington said on ESPN’s "SportsCenter." "He very clearly did not know what was happening in the situation. It moved very quickly, very rapidly, very aggressively."

Scheffler was booked into the Louisville Department of Corrections later Friday.  He was charged with second-degree assault of a police officer (a felony), criminal mischief, reckless driving and disregarding signals from an officer directing traffic. 

A police report said a detective was knocked down after Scheffler refused "to comply and accelerated forward." The detective was allegedly dragged to the ground and he suffered injuries to his wrist and knee." 

Scheffler’s attorney, Steve Romines, released a statement on the incident. "In the early hours of the morning in advance of his tee time Scottie was going to the course to begin his pre round preparation," he said, via Sports Illustrated. "Due to the combination of event traffic and a traffic fatality in the area it was a very chaotic situation He was proceeding as directed by another traffic officer and driving a marked player’s vehicle with credentials visible. In the confusion, Scottie is alleged to have disregarded a different officer’s traffic signals resulting in these charges. Multiple eyewitnesses have confirmed that he did not do anything wrong but was simply proceeding as directed. He stopped immediately upon being directed to and never at any point assaulted any officer with his vehicle. We will litigate this matter as needed and he will be completely exonerated."

Scheffler was coming off of four victories in the last five tournaments, including a second Masters title.  He was home in Dallas the last three weeks waiting for the birth of his first child, which occurred on May 8.  

I have already seen various conflicting reports about how Scheffler was driving, but even the worst version of the story leaves me puzzled by a felony second-degree assault charge which in Kentucky carries a prison term of five to ten years and requires intentionally or wantonly causing injury.  The other lesser charges seem potentially a bit more fitting, though this still sounds a lot more like an unfortunate misunderstanding than a criminal episode calling for multiple charges including a very serious felony count.  Given that a police officer was injured in this unfortunate incident, I can understand why it is being treated seriously.  But I would like to think a lot of matters can be treated seriously without the filing of multiple and serious criminal charges.

Even without knowing anything about criminal Kentucky criminal procedure and sentencing law, I am fairly confident that Scheffler and his lawyer(s) will get this matter straightened out relatively quickly.  (And, notably, as I write this post, Schefller is under par through his first five holes, so he seems to be coping well.)  But one always wonders about an array of collateral consequences from criminal justice involvement.  For example, this new article in its headline highlighted that Scheffler may have to worry about a unique kind of collateral consequence: "Paris Olympics: Will Scottie Scheffler be Denied Entry After Arrest Scandal?"

"Trial Ambivalence"

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

Much of the rhetoric about criminal justice reform posits that trials are good and pleas are bad.  Trials provide full, public adversarial process, while plea bargaining is secretive, coercive, and unfair.  As such, a thread of reform has emerged calling for more trials and fewer pleas.  As this Article argues, underlying these reform efforts is an unspoken ambivalence about trials among the very reformers who clamor for more of them.  This ambivalence stems from the often unacknowledged reality that many of the common harms associated with plea bargaining are frequently benefits when viewed through the lens of trial avoidance.

This ambivalence is not new.  Indeed, in its plea bargaining jurisprudence the Supreme Court has long demonstrated its own ambivalence about the American trial system, even while romanticizing the trial.  Modern-day criminal justice reformers often wax poetically about trials, while simultaneously resisting efforts to actually require more trials. The ambivalence unearthed here demonstrates how little legal stakeholders — lawyers, judges and reformers — trust the American jury process to produce just results.  As long as the romantic narrative of trials persists in tandem with this ambivalence, reform efforts may actually more deeply entrench plea bargaining.

Notable (below-guideline) sentence for key anti-abortion activist after trial conviction

As reported in this Washington Post article, a "30-year-old antiabortion activist who kept fetuses in a Capitol Hill home was sentenced Tuesday to nearly five years in prison for illegally blockading and breaking into a reproductive health clinic in D.C." Here is more about a number of sentencings in this case:

Lauren Handy, of Alexandria, Va., received a 57-month term and became the first person to be sentenced for the combination of conspiring to violate reproductive health rights under a federal civil rights law and violating the Freedom of Access to Clinic Entrances Act, a 1994 law that prohibits threats to and obstruction of a person seeking reproductive health services or providers....

Handy, convicted by a jury last year, was charged along with nine others after the group launched an antiabortion blockade at the Washington Surgi-Clinic in 2020.  Handy’s was the first of four clinic-access cases pending trial or sentencing around the country in which the Justice Department under the Biden administration has charged defendants with obstructing clinic access in combination with a conspiracy against rights — a civil rights law passed after the Civil War that makes it punishable by up to 10 years in prison to “conspire to injure, oppress, threaten, or intimidate any person” exercising a constitutional or legal right. Violations of the 1994 clinic access law alone are punishable by up to a one-year prison term.

Handy gained additional notoriety when, on the same day a federal indictment was announced against the defendants, D.C. police discovered five fetuses in a Capitol Hill rowhouse basement where she had been staying. The criminal trial, however, had nothing to do with the fetuses that antiabortion activists say they collected from outside the same D.C. abortion clinic, and authorities have not charged anyone in that matter.

Handy and co-conspirators live-streamed a preplanned “lock-and-block” blockade that used force and physical obstructions to shut down the D.C. clinic on Oct. 22, 2020, Kollar-Kotelly said in summarizing trial evidence. Prosecutors said Handy was the leader of the group that orchestrated the blockade and recruited participants, arranged lodging and used a fake name to book an appointment. A nurse was injured and patients were traumatized in the incursion, including two women who begged to enter for treatment and one who suffered a medical emergency, the judge said.

“It was not peaceful, and it was not contemplated to be peaceful,” Assistant U.S. Attorney Sanjay Patel argued in a 90-minute sentencing hearing. The government sought a sentence at the high end of a 63- to 78-month range recommended by federal guidelines — up to 6½ years — based on Handy’s leadership role, obstructive conduct, the violence and victims in the case.

Prosecutors called her “an active antiabortion extremist” who has organized clinic blockades around the country, resulting in four convictions for which she was sentenced up to 45 days in jail, with all terms suspended or pending appeal. Patel also cited the need for deterrence, saying that without a stiffer punishment “the purpose of sentencing may be lost on this defendant.”

Also sentenced Tuesday with Handy were John Hinshaw, 69, of Levittown, N.Y., who received 21 months of incarceration; and William Goodman, 54, of the Bronx, who was sentenced to 27 months....

Defense attorney Martin A. Cannon cited more than nine letters of support for Handy and likened her actions to those of civil rights leaders such as Martin Luther King Jr. and Rosa Parks, saying she “did not act out of self-interest, but … at her own peril,” in good faith and out of conscience.  Cannon said Handy was a peaceful, kindhearted person with a history of philanthropic work in Haiti and on behalf of homeless people who was “trying to save babies from being killed.”  He continued, “Lauren did nothing on her own that was violent or forceful.  She did not, I submit, anticipate any of the force that resulted.”

Kollar-Kotelly said that to the contrary, the evidence showed that Handy and her co-plotters planned to push their way into the clinic, and fretted beforehand over possible use of violence.  She said the case was “not a referendum on abortion, but violation of civil rights” of patients and medical practitioners.

The judge concluded that while Handy and her co-conspirators were entitled to have “very strong views about abortion,” she found it disheartening that they “showed no compassion or empathy to women patients who were human beings in pain and seeking medical care.”

Handy and seven co-defendants, including Idoni and Geraghty, were found guilty on all counts in two federal jury trials in August and September.  Another was convicted at a bench trial before a judge in November, and one pleaded guilty. The man who pleaded guilty, Jay Smith, 32, of Freeport, N.Y., received 10 months last year after pushing a nurse who fell and suffered an ankle injury in the blockade.  The remaining six will be sentenced later this month.

Kollar-Kotelly noted that other civil rights conspiracy cases involving the Freedom of Access to Clinic Entrances Act are pending in Tennessee, Michigan and Florida. Because no one else has been sentenced under the laws in combination, she said she relied on federal sentencing guidelines for the alleged and convicted conduct.

I have not followed these cases closely, so I may not have the facts right, but this certainly seems to be another situation involving a trial penalty.  Handy, who seemngly did not directly commit any violence, gets almost 5 years in prison after exercising her tiral rights; Smith, who injured a nurse, is sentenced to only 10 months after pleading guilty.  Handy does seem to have some aggravating history and a leadership role, so the differential here may be the result of various other factors.  But still, based on the facts reported here, I am not sure other facts really full account for Handy getting a sentence nearly six times longer.