Sentencing Law and Policy

Thanks to cooperation, former FTX executive avoids prison time even though Guidelines recommended LWOP

As reported in this CNBC article, "[f]ormer FTX executive Nishad Singh was sentenced to time served and three years of supervised release on Wednesday, becoming the fourth ex-employee of the collapsed crypto exchange to be punished. Singh was also ordered to forfeit $11 billion."  Here is more:

Singh faced a maximum sentence of 75 years but New York Judge Lewis Kaplan noted his cooperation with the government as “remarkable” and said he was entirely persuaded that Singh’s involvement with the fraud was far more limited than that of FTX founder Sam Bankman-Fried or Caroline Ellison, the former CEO of sister hedge fund Alameda Research.

Ellison was the star witness in the prosecution of Bankman-Fried and recently received a two-year prison sentence.

Singh, who was FTX’s head of engineering, pleaded guilty early last year to six criminal charges, including conspiracy to commit securities fraud, conspiracy to commit money laundering and conspiracy to violate campaign finance laws.

On Wednesday, Singh delivered a statement to the Court and said in a soft voice that he had strayed from his values and didn’t expect forgiveness. He said that assisting in the government’s investigation gave him purpose....

FTX spiraled into bankruptcy in Nov. 2022, after the crypto exchange couldn’t meet customers’ withdrawal demands and allegedly stole $8 billion in client funds. In March, Bankman-Fried was sentenced to 25 years in prison and ordered to pay $11 billion....

Prosecutors noted that they met with Singh on at least 24 occasions for multiple hours and that he demonstrated “earnest remorse and eagerness to assist,” as well as “brought to the Government’s attention criminal conduct that the Government was not aware of and, in some cases, may have never discovered but for Singh’s cooperation.”

Nicolas Roos, one of the prosecutors in the trial, noted that the campaign finance scheme was “totally unknown” by the government and that Singh “exclusively brought” details of the arrangement to the government....  Roos told Judge Kaplan that leniency “would send an important message.” In Kaplan’s reading of the sentencing, he told the defendant, “You did the right thing.”

Notably, this report on Singh's sentencing makes no mention of his recommended federal sentencing guideline range, no doubt because nobody gave it any mind.  But, as this government sentencing filing noted, for Singh, the "Probation Office calculate[d] the otherwise applicable Guidelines sentence to be life imprisonment, based on an offense level of 43" because of the amount of money involved in the FTX frauds.  Even for someone with no criminal history, that offense level means a recommended guideline sentence of life in prison (and the federal system has no parole).  To move from a recommendation of life in prison without parole to an actual sentence without any prison time is the sentencing magic that cooperating with the government can conjure for some.   

A few prior related posts:

• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds
• For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served
• Feds praise Caroline Ellison's cooperation while refusing to suggest any specific sentence when federal guidelines recommend LWOP
• Caroline Ellison sentenced to two years in prison for her role in FTX collapse 

Previewing latest cases before circuit court on USSC guideline allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i)

Bloomberg Law has this new article, headlined "Sentencing Commission Policy Power Faces Unusual Test on Appeal," previewing a notable oral argument in the Sixth Circuit scheduled this week to consider the US Ssentencing Guideline provision that permits some "changes in the law" to serve as basis for possible sentence reduction under § 3582(c)(1)(A)(i).  Here are excerpts:

A US Sentencing Commission policy statement that allows courts to consider nonretroactive changes to the law when weighing a criminal defendant’s bid for compassionate release will be tested during oral arguments in the US Court of Appeals for the Sixth Circuit Thursday.

Federal prosecutors around the country have challenged the policy statement, which allows courts to consider a change in the law — other than nonretroactive changes to the guidelines manual — as an extraordinary and compelling reason allowing a sentence reduction.

Under the policy, courts must consider the defendant’s individualized circumstances and can reduce a sentence only when the defendant received an “unusually long sentence,” has served at least 10 years in prison, and there’s a “gross disparity” between the sentence the defendant is serving and the sentence likely to be imposed now.

The Justice Department says the commission is effectively making nonretroactive laws retroactive....

Before the commission stepped in, five circuits—the Third, Sixth, Seventh, Eighth, and D.C. — said courts couldn’t consider a nonretroactive change in the law for purposes of compassionate release. Four circuits — the First, Fourth, Ninth, and Tenth—explicitly allowed judges to consider such changes, at least when examining a defendant’s overall circumstances.

The commission amended its policy statement describing “extraordinary and compelling” reasons for a sentence reduction in response to the First Step Act of 2018, an overdue move resulting from the commission lacking a quorum for several years.

The policy aimed to resolve the circuit split by allowing consideration of nonretroactive changes within a larger analysis. But DOJ has since taken the position that—despite an express delegation of authority — the policy exceeds the commission’s statutory power.  In DOJ’s view, a change in law can never be “extraordinary” or “compelling.”

Regular readers may know that I think this issue should be pretty easy to resolve for any and every jurist committed to textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the Justice Department's contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  If a court rules otherwise, it is just inventing an extra-textual categorical limitation on the express statutory authority Congress gave to district courts to reduce prison terms (persumably based on the court's policy view that there should be additional limits beyond what Congress set forth in the statutory text).

That said, Congress did provide expressly in statutory text that there is be one factor that could not alone serve as the basis for sentence reduction under § 3582(c)(1)(a): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  But that clear textual exclusion reveals that Congress plainly knows how, in express statutory text, to exclude a particular reason from being alone the basis for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — in turn suggest that courts should not be inventing additional extra-textual categorical exclusions that Congress did not actually place in the statutory text.  (Moreover, the use of the word "alone" in § 994(t) further suggests that Congress wants even "debatable" factors that cannot alone be the basis for a reduction to be useable in combination with other factors.)

Of course, Congress also provided in 28 USC § 994(t) that the US Sentencing Commission "shall describe what should be considered extraordinary and compelling reasons for sentence reduction," which does suggest that the Commission has statutory authority to limit what can qualify as "extraordinary and compelling reasons" for a sentence reduction.  Indeed, the Commission did just that in its 2023 amended policy statment, §1B1.13(b)(6), which puts all sorts of restrictions on just when "a change in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason."  But, again, the text in applicable statutes makes plain that Congress tasked only the Commission with describing (and potentially limiting) sound grounds for sentence reductions under § 3582(c)(1)(a).  Creating new categorical limits on sentencing reduction grounds is not a job for circuit courts, unless those courts believe it is supposed to be their role to ignore clear statutory text and displace the policy-making roles of both Congress and the US Sentencing Commission.

"Assisted Outpatient Treatment: A State-by-State Comparative Review"

The title of this post is the title of this new paper now available via SSRN authored by E. Lea Johnston and Autumn Klein. Here is its abstract:

Assisted outpatient treatment, otherwise known as preventive outpatient commitment, is rapidly expanding across the United States, aiming to address mental health needs and reduce homelessness, hospital costs, and community violence.  Since 2019, fifteen preventive outpatient commitment statutes have been passed or expanded.  These statutes, which authorize courts to mandate community treatment for nondangerous individuals with mental illnesses, have evaded close scrutiny, rest on misconceptions, and raise significant constitutional concerns.  An analysis of legislative debates, court opinions, and scholarship reveals a fundamental misunderstanding about the prevalence of these laws, which contributes to their speedy passage.  Additionally, no analysis exists of these statutes' varying compositions.  Consequently, commentators underestimate their potential scope and enforceability.  Furthermore, a lack of clarity regarding the elements responsive to states' parens patriae and police power interests hinders accurate legal and policy analyses.

This Article explicates current preventive outpatient commitment statutes to enhance understanding of states' authority to compel community treatment.  It seeks to dispel common misconceptions about these statutes, including their prevalence, minimal invasiveness, applicability to only those lacking insight into their condition, and unenforceability through courts' contempt power.  It also offers a detailed analysis of the aspects of these statutes most crucial to their justifiability, i.e., criteria related to dangerousness and treatment decision-making incapacity.  Such examination is necessary to understand the evolving relationship between states and individuals with mental disorders, discern the goals of compelled treatment statutes, and assess their legality.  It is also essential for evaluating the success of these statutes and determining when a state's objectives have been fulfilled such that courts may not renew commitment orders.

This analysis aims to enrich future debates about the authority underpinning these statutes, their ideal composition, and their impact.  It also lays the foundation for future projects to examine the constitutionality of these statutes, their efficacy, and their broader justifications.

Continuing coverage and comment on Menendez brothers' possible resentencing

Unsurprisingly, the announcement last week by the Los Angeles DA that he will seek resentencing for the Menendez brothers has generated more media coverage and comment about the case and the brothers.  Here is a partial round up of pieces catching my eye:

From the AP, "The Menendez brothers built a green space in prison. It’s modeled on this Norwegian idea."

From The Daily Beast, "Menendez Bros’ Family in Bitter Feud Over DA’s Freedom Plan"

From the Los Angeles Times, "Will the Menendez brothers be set free? How the parole board, the governor and a new D.A. could change things"

From NBC News, "Did Hollywood help the Menendez brothers’ case?"

From USA Today, "Are the Menendez brothers getting released? What to know about the resentencing decision"

The USA Today piece includes some of these details regarding timelines and procedures:

At a Thursday news conference, Nancy Theberge, deputy in charge of Gascón’s resentencing unit, said she would like to see the petition for resentencing go before a judge within the next 30 to 45 days. She added that the brothers' could attend the hearing either in person or via Zoom.... Theberge said Thursday the resentencing unit will coordinate with the defense to set up a court date so the petition requesting resentencing can be heard.

The judge overseeing the hearing will then rule on the petition and decide whether the brothers will be eligible for parole. If the judge agrees the brothers should be resentenced, they will go before a parole board, which will primarily evaluate "whether they are rehabilitated and safe to be released," Gascón said.

The district attorney said while he and some members of his office believed the brothers deserve to be resentenced, there may be other members of his office who will present arguments on why they should remain in prison for life.

"It's very possible that there will be members of this office that will be present in court opposing their resentencing – and they have a right to do so," he said, adding, "We encourage those that disagree with us to speak in the court."

Prior recent related posts:

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

LA District Attorney announces that he will seek resentencing for the Menendez brothers

In this post from a few weeks ago, I noted the notable activity focused on possible resentencing of the Menendez brothers, who were convicted and sentenced to LWOP in California for the brutal 1989 killing of their parents. As reported in this Courthouse News Service piece, "LA District Attorney George Gascon announced Thursday that his office will be recommending that Erik and Lyle Menendez, who killed their parents in 1989, be resentenced." Here is more:

Erik and Lyle Menendez have been locked up for 35 years and are serving life sentences without the possibility of parole. They have claimed, both during their trials and subsequent to them, that they were sexually abused by their father Jose, and that the killings were done out of fear of continued abuse and a response to trauma. Their first trial, in 1993, ended in a mistrial, with the jury remaining deadlocked after a month of deliberations. After a second trial ...., the brothers were convicted. During both trials, prosecutors argued that Jose never abused his children, and that the brothers were motivated by money.

Recently, two new pieces of evidence have emerged that the brothers and their supporters say add weight to the claims of abuse. In 2023, a former member of the boy band Menudo, Roy Rossello, revealed that Jose Menendez, a record executive, drugged and raped him when Rossello was 14 years old. In addition to that, a letter purportedly written by Erik Menendez to his cousin in 1988, less than a year before the killings, was unearthed. In the letter, Menendez refers to the sexual abuse, writing, "Every night I stay up thinking he might come in."

Last year, the brothers filed a writ of habeas corpus, asking for the convictions to be thrown out based on new evidence, writing in a brief, "The new evidence not only shows that Jose Menendez was very much a violent and brutal man who would sexually abuse children, but it strongly suggests that — in fact — he was still abusing Erik Menendez as late as December 1988."

Last week, more than 20 of Erik and Lyle's family members met with Gascon, asking for the brothers to be resentenced under Marsy's Law, which gives crime victims a right to be heard prior to sentencing, as well as to have a say in resentencing hearings. Most of the extended Menendez family say 35 years in prison is more than enough for the brothers, now in their mid 50s, given the abuse they suffered at the hands of their father.

But not all family members agree. Milton Anderson, the 90-year-old surviving brother of Kitty, the brothers' mom, has spoken out against letting his sister's killers go free. "The 'new evidence' Gascón relies on cannot legally justify overturning the murder convictions of Erik and Lyle Menendez, who meticulously planned and executed the cold-blooded murders of both their parents," Anderson's attorney said in a written statement on Thursday. "They shot their mother, Kitty, reloading to ensure her death. The evidence remains overwhelmingly clear: the jury’s verdict was just, and the punishment fits the heinous crime."

I believe what is now California Penal Code § 1172.1 provides the legal basis and sets forth the legal standards for this kind of resentencing.  I am not at all familiar with California resentencing practices, but I would guess that most judges follow the recommendations of prosecutors in these kinds of cases.  But high-profile cases do not always follow the patterns of other cases, and it will be interesting to observe both the process and substance of this notable re-sentencing decision.

Prior recent releated post:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so

"The 'Alito Hypothesis' in an Era of Emboldened One-Party State Rule"

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

The Supreme Court has long relied upon state legislative preferences when establishing federal constitutional norms. With capital punishment, for instance, state laws figure centrally when deciding whether a particular practice satisfies Eighth Amendment “evolving standards of decency.”  In Kennedy v. Louisiana (2008), which barred execution of child rapists, Justice Alito in dissent hypothesized that the majority under counted the number of states supporting the practice, reasoning that Coker v. Georgia (1977), which barred execution for the rape of an adult woman, likely discouraged states from enacting capital child rape laws, resulting in a misleadingly low tally of state preferences.

This essay questions the viability of what I term the “Alito Hypothesis” in a time when multiple states are dominated by conservative one-party political rule, emboldened by a like-minded Supreme Court seemingly less wedded to stare decisis.  Recent experience in Florida provides a case in point.  In Spring 2023, the Republican super majority Florida legislature passed, and Republican Governor Ron DeSantis signed into law, a provision adding child rape to the list of death-eligible offenses.  In doing so, the state made clear that it was not deterred from enacting a facially unconstitutional law, expressly proclaiming that Kennedy “was wrongly decided and an egregious infringement of the states’ power to punish the most heinous of crimes.”

If Florida’s bold approach catches on, there will likely come challenges to other constitutional precedents.  These include those limiting other punishment practices (capital and non-capital), protections afforded criminal defendants, and civil liberty protections, such as the right to access contraceptives and the prohibition of poll taxes.  In short, rather than being dissuaded from enacting contrarian laws, as the Alito Hypothesis would dictate, emboldened states enacting facially unconstitutional laws could well provide the basis for the Court’s reassessment of state-level preferences in multiple areas, in time possibly spearheading a major overhaul of the nation’s federal constitutional rights infrastructure. 

"Richter's Scale: Proving Unreasonableness Under AEDPA"

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

No provision is more central to the administration of the “Great Writ” of habeas corpus than Section 2254(d) of the Antiterrorism and Effective Death Penalty Act, which limits a federal court’s ability to grant relief on a claim already adjudicated by a state court.  Before granting relief, the statute provides, a federal court must decide that its state counterpart acted unreasonably.  But that only raises the same questions that have plagued lawyers for centuries. What does it mean to be unreasonable? How can one prove unreasonableness?  Two of the landmark decisions applying the statute — Harrington v. Richter and Wilson v. Sellers — have addressed these questions in contexts where state courts did not explain their reasoning.

In their wake, however, significant confusion has arisen about how reasonableness can be determined when a state court does explain itself.  To make matters worse, the Supreme Court’s cases confronting such circumstances laid down seemingly irreconcilable rules.  As a result, at least three separate approaches have emerged in the lower courts.  In this Article, I argue that “unreasonableness” consists in committing a “qualifying error,” and that a prisoner can surmount Section 2254(d)’s barrier to relief by proving such an error either directly or through circumstantial evidence.  This approach not only harmonizes the tension between several lines of habeas cases but also gives each a much stronger footing in the text of the statute and the broader structure of federal habeas corpus.

Federal judge refuses to interfere with South Carolina's clemency process

I flagged in this recent post the notable request by a condemned South Carolina inmate for a federal judge to take away the clemency power from the SC Governor.  Richard Moore argued that the Gov could not fairly consider his request to commute his death sentence to a life sentence because the Gov had been Attorney General overseeing efforts to uphold Moore’s death sentence.  Yesterday, as detailed in this local press piece, this request was rebuffed:

A federal judge has ruled that Gov. Henry McMaster will retain his right to be the final judge of clemency for a death row inmate even though he once claimed to have no intention of doing so.  “The Court is confident... Governor McMaster will give full, thoughtful, and careful consideration to any clemency petition filed by Moore, giving both comprehensive and individualized attention to the unique circumstances of his case,” wrote U.S. District Court Judge Mary Geiger Lewis in a ruling issued Monday.....

Moore, 59, is scheduled to be executed by lethal injection on Nov. 1. He was sentenced to death in 2001 for shooting and killing James Mahoney, a Spartanburg County store clerk, during an armed robbery two years prior....

Legal precedent did not support removing a governor’s power to grant clemency, contained in the state constitution, just because he had served as an attorney general, Lewis wrote....  Lewis’ ruling came after she took the extraordinary step of requesting the governor to submit an affidavit to the court swearing that he would carefully consider Moore’s clemency request.

In a carefully worded affidavit, McMaster wrote that “understanding that executive clemency is purely a matter of mercy and grace within the exclusive authority and solemn discretion bestowed up the Governor alone... it is and has been my intention and commitment to take care to understand the issues presented, including those from my review and consideration of applications, petition, and request for clemency presented to me by or on behalf of a condemned inmate.”

Moore’s lawyers told The State that they intend to appeal the decision to the 4th Circuit Court of Appeals.

The full 10-page ruling in Moore v. McMaster, No. 3:24-5580-MGL (DSC Oct. 21, 2024) (available for download below) makes for an interesting read. Here are a few notable passages:

As an initial matter, Moore misconstrues Woodard as holding the minimal procedural safeguards guaranteed by the Due Process Clause include notice and an opportunity to be heard before an impartial decision-maker. This standard is unsupported by Woodard, which merely requires the Court to determine whether a state’s clemency procedures are arbitrary or based upon whim. 523 U.S. at 289 (“[S]ome minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.”)....

Even if the Court were to employ the standard set forth by Moore, however, and hold the minimal procedural safeguards guaranteed by the Due Process Clause include Moore “having his clemency application considered and evaluated by an impartial, open-minded, and unbiased decision-maker[,]” Moore’s Motion at 1, the Court is confident — based on the full context of Governor McMaster’s public statement and his declaration — Governor McMaster will give full, thoughtful, and careful consideration to any clemency petition filed by Moore, giving both comprehensive and individualized attention to the unique circumstances of his case.

Download Moore v. McMaster clemency ruling

Substack musings on originalism and sentencing

Regularly readers are perhaps used to seeing irregular references here to some of my thinking about originalism and criminal justice topics.  This week over at the Sentencing Matters Substack, I mused on these topics a bit.  Here is the the start of this new post, which flags a few coming SCOTUS arguments and might whet some originalist appetites:

The Supreme Court earlier this month kicked off its latest season, October Term 2024, and sentencing fans may be especially interested in two federal cases to be argued in the coming months, Delligatti v. US and Hewitt v. US.  Both matters involve statutory interpretation issues, and advocates for the defendants in these cases invoke the “rule of lenity” in their arguments for their preferred statutory interpretation.

Reviewing the briefs in Delligatti and Hewitt got me to wondering if the rule of lenity should be considered a constitutional doctrine and how it might be linked to originalist views on our Constitution.   Interestingly, some of the Supreme Court’s most prominent originalists have been notable proponents of the rule.  The late Justice Antonin Scalia, in the words of one law professor, “revitalize[d] the rule of lenity,” and Justice Neil Gorsuch has written opinions championing the rule as “a means for upholding the Constitution’s commitments to due process and the separation of powers.”  And yet other avowed originalists now on the Supreme Court, ranging from Justice Samuel Alito to Justice Brett Kavanaugh to Justice Clarence Thomas, tend to give the rule of lenity short shrift.    

It will be interesting to see if the rule of lenity commands any attention in the coming oral arguments and eventual opinions in Delligatti and Hewitt.  And my musings about that doctrine’s relation to the Constitution and originalist philosophies is part of an effort, at the start of a budding scholarly project, to reflect on what constitutional principles in general — and originalist approaches to the Constitution in particular — ought to mean for modern sentencing systems and doctrines.  With many current Justices professing originalist commitments, it is timely and important to consider just what originalism might entail generally for various criminal law issues and doctrines (and this great recent Inquest piece by Cristian Farias engages on this broad front).  In particular, what originalism could and should mean for modern sentencing laws and practices especially intrigues and puzzles me.

Check out the rest of the post here.

Supreme Court grants cert on (im)permissible factors for revocation of supervised release

The US Supreme Court released this order list this morning with a few cert grants.  The grants concerning challenges to actions by the EPA are likely to get a lot more attention than the one criminal case grant.  But sentencing fans should be intrigued by the grant in Esteras v. United States.  Here is how John Elwood described the case in a past "relist watch" post at SCOTUSblog: 

In setting forth factors a court may consider in revoking a term of supervised release and ordering a person to serve a prison sentence for violating a supervised-release condition, the supervised-release statute, 18 U.S.C. § 3583(e), cross-references some, but not all, subprovisions of 18 U.S.C. § 3553(a).  Congress omitted the factors set forth in Section 3553(a)(2)(A) — the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense.  Edgardo Esteras contends that five courts of appeals, including the 6th Circuit in his case, have concluded that district courts may rely on the Section 3553(a)(2)(A) factors, but four other courts of appeals have concluded that they may not.  The government contends that courts can properly consider such factors and that “[a]ny modest disagreement among the courts of appeals on the question presented has no practical effect.”

Put in (fancy?) punishment theory terms, Congress only expressly stated that utilitarian, crime-control considerations (deterrence, incapacitation, rehabilitation) are to be considered in supervised release revocation proceedings, but many circuits seems fine if judges also consider retributivist, just-desert matters in this context.  In many respects, this case feels like the flip side of the Tapia case from nearly 15 years ago where SCOTUS was focused on statutory sentencing factors at initial sentencing.  The Court in Tapia unanimously held that the "Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant’s rehabilitation."

"20 Years On, It's Time To Fix The Crime Victims' Rights Act"

The title of this post is the title of this new Law360 essay authored by Bridgette Stumpf. Here are some excerpts:

The Crime Victims' Rights Act, passed in 2004, was intended to require actors in the criminal legal system to provide information to survivors of crime, as well as support to lessen the revictimization many survivors experience from the legal system itself.

Though the law was a good start, it has fallen short in several key ways. As we approach the 20th anniversary of the CVRA this month, it's time to confront what is broken about the law....

Within the criminal legal system, survivors have very little control or options for empowerment, despite efforts to create meaningful inclusion through laws like the CVRA.  Given this reality, criminal legal reform must prioritize the opportunity to ensure survivors know about their options and are connected to actionable support to minimize the negative consequences of trauma.

A new bill would do just that.  The Reinforcing Crime Victims' Rights Act was introduced in late September and is sponsored by Reps. Debbie Wasserman Schultz, D-Fla., and Burgess Owens, R-Utah, with Reps. Jim Costa, D-Calif., and Lois Frankel, D-Fla., serving as original co-sponsors. Proposed amendments to the CVRA would require that survivors are provided with a crime victims' rights card.

Due to the so-called CSI effect — in which many people learn about the criminal legal system through fictitious television shows that solve crimes in less than an hour — many victims of crime believe that the prosecutor is their personal lawyer, even though the goals of the prosecutor and the victim do not always align.

Under the new bill, every crime victim would receive information, in writing, indicating that they have the right to seek independent victims' rights counsel during this process to ensure rights are afforded to them and enforced if violated.  This is an important step to ensure all survivors are receiving the same information.

Additionally, the bill would require more effective oversight of government actors who violate victims' rights.  Those who fail to afford rights to victims will be subject to complaints that carry actual remedies for crime victims.

Speculating about many SCOTUS relists in Eighth Amendment capital case concerning intellectual disability

Ian Millhiser has this interesting new Vox piece discussing the oft-relisted Supreme Court case of Hamm v. Smith under the headline "The strange case that the Supreme Court keeps refusing to decide: A mysterious Supreme Court case could change everything about criminal punishment." I recommend the lengthy piece in full, and here is how it gets started (with links from the original):

For more than a year, Joseph Clifton Smith, a man who says he is intellectually disabled, has sat on death row, waiting to find out if the Supreme Court will greenlight his execution.  Smith’s case, known as Hamm v. Smith, first arrived on the Court’s doorstep in August 2023.  Since then, the justices have met more than two dozen times to decide what to do about the case, and each time they’ve put the decision off until a future meeting.

No one outside of the Court can know for sure why the justices keep delaying, but if you follow the Court’s Eighth Amendment cases closely, it’s easy to see how the Hamm case could open up all kinds of internal rifts among the justices.

The Eighth Amendment, which has a vague ban on “cruel and unusual punishments,” is at the center of the Hamm case because, for decades, the Court has held this amendment forbids executions of intellectually disabled offenders (and offenders who commit a crime while they are juveniles). The idea is that both groups have diminished mental capacity, at least as compared to non-disabled adults, and thus bear less moral responsibility even for homicide crimes.

That idea, however, has long been contested by the Court’s various ideological factions, and the Hamm case potentially reopens up all of the Court’s issues with the amendment at once. Indeed, in the worst-case scenario for criminal defendants, the justices could potentially overrule more than 60 years of precedents protecting against excessive punishments.

This Vox piece goes on to highlight how the Hamm case potentially highlights how modern Eighth Amendment precendents does not jibe with more originalist views of the Cruel and Unusual Punishments clause.  Here is part of Millhiser's explanation:

[I]t’s possible that the Court is fighting over what to do with the Hamm case because many of the justices want a wholesale revolution in Eighth Amendment law.

Beginning in the mid-20th century, the Supreme Court maintained that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Thus, as a particular method of punishment grew less common, the Court was increasingly likely to declare it cruel and unusual in violation of the Constitution.

At least some members of the Court’s Republican majority, however, have suggested that this “evolving standards of decency” framework should be abandoned.  In Bucklew v. Precythe (2019), the Court considered whether states could use execution methods that risked causing the dying inmate a great deal of pain. Justice Neil Gorsuch’s majority opinion, which held that potentially painful methods of execution are allowed, seems to exist in a completely different universe than the Court’s Eighth Amendment cases that look to evolving standards.

While the Court’s earlier opinions ask whether a particular form of punishment has fallen out of favor today, Gorsuch asked whether a method of punishment was out of favor at the time of the founding....  What makes Bucklew confusing, however, is that it didn’t explicitly overrule any of the previous decisions applying the evolving standards framework.  So it’s unclear whether all five of the justices who joined that opinion share a desire to blow up more than a half-century of law....  Bucklew looms like a vulture over any cruel and unusual punishment case heard by the Court, as it suggests that the Republican justices may hit the reset button on all of its Eighth Amendment precedents at any time.

Thanks to some helpful readers, I have been keeping an eye on Hamm v. Smith, and Millhiser seems right that something notable is afoot behind closed SCOTUS doors.  My uninformed guess is that a few Justices, most likely Justice Alito, Gorsuch and/or Thomas, may be actively seeking to encourage their colleagues to take up the case as an opportunity to review and recast Eighth Amendment, but they are having a hard time getting a fourth vote for cert. And that challenge may reflect not only the concern other Justices may have about overturning modern Eighth Amendment precedents, but also the fact that a rigorous approach to Eighth Amendment originalism could possibly expand some rights against excessive punishments (according to some academics)

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

This local article, headlined "In stunning move, Texas Supreme Court halts Robert Roberson execution in 'shaken baby' case," provides an effective review (with links) of the legal drama yesterday that ultimately halted a closely watched execution date. Here are just some excerpts of just some part of quite a story:

The Texas Supreme Court late Thursday spared Robert Roberson on the night he was set to die by lethal injection, a rare and head-spinning eleventh-hour decision in one of the most controversial death penalty cases in years.

The all-Republican court's decision comes in response to a first-of-its-kind legal maneuver in which a state House committee voted to subpoena Roberson for a hearing scheduled days after his execution date. It could buy Roberson — who was set to become the first American executed for a conviction involving "shaken baby" syndrome at 6 p.m. Thursday — weeks or months to live as court proceedings continue to play out.

The order caps a whirlwind two-day effort from a bipartisan coalition of lawmakers who feverishly fought to keep a man they believe to be innocent from the execution chamber and riveted the nation's attention on Texas' application of the death penalty. 

The House representatives who led the movement expressed relief in a Thursday night joint statement. "For over 20 years, Robert Roberson has spent 23.5 hours of every single day in solitary confinement in a cell no bigger than the closets of most Texans, longing and striving to be heard," said Reps. Jeff Leach, R-Plano, and Joe Moody, D-El Paso. "And while some courthouses may have failed him, the Texas House has not." 

The drama Thursday took off when Leach and Moody successfully asked a Travis County state District Court to temporarily stay the execution to allow Roberson to answer a summons that the House Committee on Criminal Jurisprudence unanimously approved Wednesday.

The Texas Court of Criminal Appeals shortly thereafter overturned that lower court's approval of the lawmakers' request in a 5-4 decision, and minutes later Leach and Moody filed an emergency motion with the Texas Supreme Court to intervene, arguing the Criminal Appeals Court lacked jurisdiction over a ruling made in a civil court. Leach posted on social media before the state Supreme Court's decision that he was "Praying as if everything depends on God, which it does. But working as if everything depends on us."

The state Supreme Court agreed with the lawmakers, with Justice Evan Young writing in a concurrence that "the underlying criminal-law matter is within the Court of Criminal Appeals’ authority, but the relief sought here is civil in nature, as are the claims that have been presented to the district court."

Roberson's case for a reprieve has drawn widespread support from more than 80 Texas House members as well as from U.S. Supreme Court Justice Sonia Sotomayor, Dr. Phil and others.  After the U.S. Supreme Court rejected a petition to delay the execution around 4 p.m. Thursday, Sotomayor wrote in a statement that "mounting evidence suggests ... Roberson committed no crime at all."  Sotomayor and others have urged Gov. Greg Abbott to grant Roberson a 30-day reprieve, but the governor has remained silent on the case.

Split Nebraska Supreme Court orders Secretary of State to implement new state law enfranchising persons with felony convictions

As report in this NBC News article, the "Nebraska Supreme Court ruled that convicted felons who served their sentences are allowed to vote, after the state's top election official sought to keep them from casting ballots ahead of the Nov. 5 election." Here is more about this ruling:

Nebraska has historically restored the voting rights of former felons two years after they completed the terms of their sentences. Earlier this year, state legislators voted on a bipartisan basis to eliminate the two-year waiting period. Nebraska Attorney General Mike Hilgers later argued that only the state’s board of pardons could restore voting rights, and Nebraska Secretary of State Robert Evnen ordered local registrars to stop letting all people with previous felony convictions vote, arguing the laws enfranchising them were unconstitutional.

On Wednesday, Nebraska's top court disagreed, writing that state officials had not convinced them the law, known as L.B. 20, was unconstitutional. “The Secretary is ordered to remove any disqualification on registration he has imposed that is not contained within L.B. 20 and to comply in all respects with the provisions of L.B. 20,” the state’s high court wrote in an order.

The full ruling in State ex Rel. Spung v. Evnen, 317 Neb. 800 (Neb. Oct. 16, 2024) (available here), is quite lengthy, in part due to many concurring and dissenting opinions. Here is how the per curiam majority opinion for the court gets started:

The Nebraska Secretary of State (Secretary) announced in the summer of 2024 that he would not implement recent statutory amendments providing that individuals who have been convicted of felonies are eligible to vote as soon as they complete their sentences.  The Secretary took the position that the statutory amendments were unconstitutional. Individuals who were convicted of felonies and who had completed their sentences responded by filing this action in which they seek a writ of mandamus directing the Secretary and two named county election commissioners to implement the 2024 amendments and allow them to register to vote.  Because the requisite number of judges have not found that the statutory amendments are unconstitutional, we issue a peremptory writ of mandamus directing the Secretary and the election commissioners to implement the statutory amendments immediately.

New Prison Policy Initiative report, "One Size Fits None: How ‘standard conditions’ of probation set people up to fail"

Writing for the Prison Policy Initiative, Emily Widra has this notable new report titled "One Size Fits None: How ‘standard conditions’ of probation set people up to fail." The report's extended subtitle summarizes its coverage: "Courts and probation agencies impose a standard set of rules on everyone under their supervision, before tacking on any extra restrictions.  Our national review finds these mandatory rules are often unnecessarily burdensome and incredibly vague, making it all too easy to 'fail' at probation and land behind bars."  The full report is worth a full read, and here is how ite gets started (with links from the original):

More than 1 in 10 people admitted to state prisons every year have committed no new crime, but have simply broken one or more of the many conditions, or rules, of their probation.  All of this unnecessary incarceration is the predictable result of widely-adopted probation conditions that are so vaguely defined, so burdensome, and so rigidly applied that they actually broaden the scope of what counts as “recidivism.”  Through these conditions, courts and probation authorities create punishable offenses that go far beyond criminal law, setting people up to fail.  And because the vast majority of people under correctional control are on probation — 2.9 million people, far surpassing the 1.9 million people incarcerated — these trap-like conditions make probation a major driver of mass incarceration, not the “alternative” it’s supposed to be.

Shrinking the massive probation system — and the number of people incarcerated from community supervision — is central to ending mass incarceration.  Doing so requires challenging existing “standard conditions” that (a) are often in conflict with one another, (b) exacerbate the challenges people on probation are already facing, and (c) empower probation officers — rather than courts — to make subjective decisions that can lead to revocation and incarceration. Examining these conditions clarifies why probation often functions as an on-ramp to incarceration instead of an alternative, and can help advocates and policymakers reorient probation systems away from incarceration.

Unfortunately, standard probation conditions are often difficult to locate and parse, vary between jurisdictions, and use complicated and unclear language, so to aid in this effort, we collected and analyzed the standard conditions for 76 jurisdictions across all 50 states and Washington, D.C., creating one of the most comprehensive compilations of these rules to date.

"Plea Bargaining in Homicide Cases: An Empirical Exploration in One State"

The title of this post is the title of this new article by Michael O'Hear and Darren Wheelock now available via SSRN. Here is its abstract:

Even the most serious criminal cases are often resolved through plea bargaining, with potentially dramatic consequences for the sentence ultimately imposed.  In Wisconsin, the most serious type of homicide is a Class A felony, which results in a mandatory life sentence.  However, many individuals who are initially charged with the Class A offense are given the opportunity to plead guilty to a lesser Class B offense, which does not trigger any mandatory minimum sentence at all.

In this Article, we compare the characteristics of the cases in which the defendant pleads guilty to a Class A offense (a relatively harsh outcome) with the characteristics of the cases in which the defendant pleads guilty to a Class B offense (a relatively lenient outcome).  We find statistically significant differences between these two sets of cases in such areas as county of prosecution, appointed versus private-pay defense lawyer, and gender of defendant, victim, prosecutor, and defense lawyer.

Noting struggles with case-processing due to prosecutor shortages from coast-to-coast

As the start of this year, Stateline has this article about criminal justice staffing shortages headlined "Shortage of prosecutors, judges leads to widespread court backlogs: The pandemic worsened problems that already had caused state and local court delays."  That article focused particularly on developments in Georgia, New York and Vermont, but some more recent press pieces from a number of states showcase that this is a nationwide problem.  A brand new piece from Alaska, noted below, led me to notice similar tales from multiple states in press pieces from earlier this year:

From Alaska, "Domestic Violence, Child Abuse and DUI Cases Are Being Dismissed en Masse in Anchorage"

From Arizona, "Attorneys raise concerns over slow moving cases, how Pima County Attorney is addressing shortage of prosecutors"

From Indiana, "Prosecutor says Indiana is facing an attorney shortage"

From Maine, "Staffing shortage blamed for lack of prosecutions of crimes in western Maine"

From Michigan, "New state funding not enough to solve shortage of prosecutors, counties say"

From Nebraska, "Rural NE county attorneys, public defenders confront ‘legal desert’ in hiring new lawyers"

From South Carolina, "Thousands await trial in SC on years-old charges. AG proposes way to clear cases"

I have long surmised that government prosecutors and public defenders generally share the privilege of being underpaid and overworked, while both are absolutely essential to the administration of justice in our legal systems.  And I sense these staffing problems are particularly acute in rural areas, especially as new generations of lawyers seem particularly drawn to city life and practice.  What this might mean long term for our criminal justice systems merits watching carefully.

Intriguing (though likely doomed) effort to alter South Carolina clemency process by condemned inmate

This new AP article reports on an interesting claim brough by a condemned inmate in South Carolina.  Here are the details:

A South Carolina inmate scheduled to be executed in just over three weeks is asking a federal judge to take away the power of granting clemency from the governor who is a former state attorney general and place it with a parole board.  The South Carolina constitution gives the governor the sole right to spare an inmate’s life, and Gov. Henry McMaster’s lawyers said he intends to retain it.

Lawyers for Richard Moore are arguing that McMaster cannot fairly consider the inmate’s request to reduce his death sentence to life without parole because for eight years starting in 2003 he was the state’s lead prosecutor and oversaw attorneys who successfully fought to uphold Moore’s death sentence. “For Moore to receive clemency, McMaster would have to renounce years of his own work and that of his former colleagues in the Office of the Attorney General,” the attorneys wrote in asking a federal judge to pause the execution until the matter can be fully resolved.

McMaster has taken tough-on-crime stances and also in the past said he is against parole. The governor said in 2022 that he had no intention to commute Moore’s sentence when an execution date was a possibility, Moore’s attorneys said in court papers filed Monday.

Lawyers for McMaster said he has made no decision on whether to grant Moore clemency, and courts have repeatedly said attorneys general who become governors do not give up their rights to decide whether to set aside death sentences.  Currently, nine states, including South Carolina, are run by former attorneys general.  Among the top prosecutors cited by the state who later become governors and made decisions on clemency is former President Bill Clinton in Arkansas....

Moore, 59, is facing the death penalty for the September 1999 shooting of store clerk James Mahoney. Moore went into the Spartanburg County store unarmed to rob it, and the two ended up in a shootout after Moore was able to take one of Mahoney’s guns. Moore was wounded, while Mahoney died from a bullet to the chest. Moore didn’t call 911. Instead, his blood droplets were found on Mahoney as he stepped over the clerk and stole money from the register.

State law gives Moore until Oct. 18 to decide or by default that he will be electrocuted.  His execution would mark the second in South Carolina after a 13-year pause because of the state not being able to obtain a drug needed for lethal injection.  No South Carolina governor has ever granted clemency in the modern era of the death penalty.  McMaster has said he decides each case on its merits after a through review....

McMaster has said he will follow longtime tradition in South Carolina and wait until minutes before an execution is set to begin to announce whether he will grant clemency in a phone call prison officials make to see if there are any final appeals or other reasons to spare an inmate’s life.

And his lawyers said his decision on whether to spare Moore life will be made under a different set of circumstances than his decision to fight to have Moore’s death sentence upheld on appeal. “Clemency is an act of grace,” the governor’s attorneys wrote. “Grace is given to someone who is undeserving of a reprieve, so granting clemency in no way requires the decisionmaker to ‘renounce’ his previous work.”

Notably, a divided Supreme Cout in Ohio Adult Parole Authority v. Woodard interpretation the Constitution to mean that "some minimal procedural safeguards apply to clemency proceedings." But I would be shocked if that precedent (or any others) will enable the condemned defendant to prevail in this case.

Supreme Court reveals (predictable) split during argument on Glossip capital case

Supreme Court watchers who know the current Justices' patterns, especially in capital cases, would have expected Justices Barrett and Kavanaugh to be likely key swing votes in the Glossip case argued today (previewed here).  This round-up of some press accounts of today's Glossip argument suggest those Justices are likely to deterimine the case's fate:

From NPR, "Okla. AG seeks new trial for death row inmate, but Supreme Court seems split"

From SCOTUSblog, "No clear decision as justices debate Richard Glossip’s death sentence"

From the New York Times, "Splintered Supreme Court Wrestles With Case of Oklahoma Death Row Inmate"

From the Washington Examiner, "Supreme Court appears divided over Oklahoma death row appeal"

From the Washington Post, "Supreme Court closely divided on new trial for Oklahoma death row inmate"

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

The title of this post is the title of this new essay authored by Paul Cassell recently posted to SSRN. Here is its abstract:

What role should mercy play in the criminal justice system?  While several of the other symposium’s articles here in the Texas Law Review argue for expanding mercy’s role, I write to raise a cautionary note.  Expanding mercy could potentially conflict with another important feature of contemporary criminal justice: the expanding role of crime victims.  Because considerations of mercy focus exclusively on the offender, greater attention to mercy necessarily means less attention to victims.  This change in focus would be at odds with a broadly advancing crime victims’ movement in this country and, indeed, in many countries around the world.

This cautionary point does not assume that all crime victims want a more punitive criminal justice system.  To the contrary, many crime victims may argue for mercy.  But allowing victims’ voices to carry weight only when they advance merciful arguments is inconsistent with the underlying rationale for victim involvement: that victims should have agency to advance their own claims in criminal justice processes.

CCJ releases new report on "The Implications of AI for Criminal Justice"

The Council on Criminal Justice today released this notable report put together following a summer convening of researchers and various stakeholdersto discuss the potential and pitfalls of artificial intelligence for criminal justice systems.  Here is part of the report's introduction:

The rapid advancement of artificial intelligence (AI) technologies has implications for every sector of society, including the criminal justice system.  As AI tools for investigation, adjudication, prioritization, analysis, and decision-making proliferate and evolve, understanding their potential benefits and risks becomes increasingly important.

In June 2024, the Council on Criminal Justice (CCJ) convened a group of experts and stakeholders to discuss the implications of AI for the U.S. criminal justice system.  The meeting brought together a diverse group of three dozen leading stakeholders from across ideologies, disciplines, and sectors of the system — policymakers, practitioners, researchers, technologists, and advocates — for two days of discussion and the examination of three use cases. The event was hosted by the Stanford Criminal Justice Center at the Stanford University School of Law....

The key goal of the convening was to jump-start a national conversation about how to integrate AI into criminal justice in ways that promote justice, efficiency, and effectiveness and avoid exacerbating existing problems or creating new ones. This report summarizes key themes from the convening.

Previewing SCOTUS's latest Glossip argument

Richard Glossip already has a significant Supreme Court ruling associated with his name; nearly a decade ago, SCOTUS considered and then rejected his Eighth Amendment challenge to Oklahoma's lethal injection protocol.  In addition, as the start of this AP article notes, Glossip has had eventful decades on death row after his conviction related to a 1997 murder-for-hire scheme: "Oklahoma has set execution dates nine times for death row inmate Richard Glossip.  The state has fed him three 'last meals.'  Glossip has even been married twice while awaiting execution."

Now, Glossip's case is coming before the Supreme Court again, and this thorough SCOTUSblog preview highlights the latest complicated chapter in an eventful capital punishment procedural.  Here is how that post starts and its framing of the key issues before SCOTUS:

Twice in the past decade the Supreme Court has blocked Oklahoma from executing Richard Glossip. Now the state has joined Glossip to argue that newly uncovered evidence shows prosecutors violated his rights at trial. But even with the Oklahoma’s rare confession of error, both the state’s highest court for criminal cases and te state’s pardon and parole board turned down Glossip’s pleas for relief. On Oct. 9, two former U.S. solicitors general -- Seth Waxman, representing Glossip, and Paul Clement, representing Oklahoma’s attorney general -- will appear before the justices, seeking to persuade them to set aside Glossip’s conviction and death sentence and order a new trial.

Oklahoma Attorney General Gentner Drummond told the court that the state is not looking for an exoneration “by fiat (or at all)” but that “justice would not be served by moving forward with a capital sentence that the State can no longer defend.”

In 1997, Barry Van Treese was bludgeoned to death with a baseball bat in the room he was staying in at his Oklahoma City motel, where Glossip worked as a manager. Another one of Van Treese’s employees, Justin Sneed, confessed to killing him while on meth. He is serving a life sentence. Glossip has maintained he had no part in the murder and is innocent over the decades he has been on death row.

The only evidence implicating Glossip in Van Treese’s death was testimony from Sneed, who worked as a handyman at the hotel. Sneed told jurors that Glossip paid him up to $10,000 to kill Van Treese. In exchange for his testimony, prosecutors promised Sneed that he would not face the death penalty....

In granting the case, the justices added a question for the parties to address: Whether the Supreme Court has the power to review the decision by the Oklahoma Court of Criminal Appeals at all, or whether it is instead barred from doing so because the decision rests on an “adequate and independent state ground.”...

The second question before the court goes to the heart of the case: Whether the justices should invalidate Glossip’s conviction and sentence because prosecutors failed to correct false testimony by Sneed and turn over evidence that might have helped to clear Glossip.

Because any grant of cert by the Justices in a case of this nature usually means more than a few are concerned about the rulings below, I suspect that both the claims of innocence and his support from Oklahoma's AG has prompted some of the more conservative members of the Court to want to take this new look at this long-running case. And yet, the more conservative member of the Court have, generally sepaking, been much more comfortable showing much more deference to state court capital procedings. It will be interesting to see which Justices at oral argument seem most troubled by Glossip's case.

A few GVRs and lots of cert denials in first full SCOTUS order list of OT 2024

The Supreme Court formally kicks off its new term, October Term 2024, with oral arguments in two cases this morning.  But its first official product of OT 2024 is this 50-page order list with more cert denials than I can count.  The order list begins with a few G(ranted), V(acated), R(emanded) cases in federal criminal matters based on Rahimi and Erlinger, and I am a bit surprised that the GVR list is not longer. 

I am not at all surprised that the cert denial list is extreme long, and I suspect there may be a few surprises therein.  Readers are encourage to comment on any cases in (or not in) the denials that catch their eye.

The only big criminal case to be argued during the first SCOTUS sitting of OT 2024 is the capital case Glossip v. Oklahoma.  I hope to round up some of the press coverage and commentary on this case in the coming days.

Supreme Court grants cert on 13 new matters, with a few of possible interest for sentencing fans

The US Supreme Court's new season, known as October Term 2024, officially gets started on Monday with oral arguments in two cases raising technical procedural issues.  But, for SCOTUS watchers, today feels like openning day because the Justices this morning released this big new order list detailing all the cases for which it granted cert following its "long conference" earlier this week. 

By my quick count, the Court appears to have granted cert on 15 cases to deal with 13 issues.  (In two instances, the Justices formally granted cert in two cases but consolidated the pair for oral argument.)  And from my too-quick review, it seems that there are four cases involving criminal law issues (or criminal-law adjacent), though is seems technical procedural issues may be at the heart of a couple of them. 

The only pure criminal case appears to be Thompson v. US dealing with what constitutes a "false statement" to sustain a federal bank fraud conviction.  But Fourth Amedment fans will certainly be excited because Barnes v. Felix takes on, in the context of a civil rights suit, the so-called "moment of the threat" doctrine in assessing excessive force claims under the Fourth Amendment. 

Technicalities come to the fore in Perttu v. Richards, another civil rights case, this one involving a state prisoner dealing with when the Prison Litigation Reform Act requires a prisoner to exhaust administrative remedies prior to securing a jury trial.  And in Gutierrez v. Sanz, a capital case, deals with standing issues in conjunction with efforts by a defendant to secure post-conviction DNA testing.

This AP piece previewing cases on the SCOTUS docket before today suggested the Term looks like it could be "relatively sleepy." None of these new grants, either in the criminal cases or any of the others, seems to be much of a wake-up call. But with a major election and a presidential tradition transpiriting in the next few months, I doubt there will be much dozing off among Justice or advocates in the Term to come  

Making a robut case for robust legal representation for the incarcerated

Inquest has this notable new essay on a topic that I think merits a lot more attention, namely on the needs of the incarcerated for legal assistance.  The piece, authored by Jennifer Soble, is headlined "Lawyerless No More: Once a person is imprisoned, indigent defense stops. But the gravity of mass incarceration demands legal representation to the very end." I recommend the full essay, and here are some excerpts:

Some of the most vulnerable incarcerated people are denied counsel even in proceedings explicitly designed to help them because of their vulnerability. For example, although most states have a process for releasing incarcerated people who are terminally ill or disabled, almost no state provides lawyers to people who are eligible for this relief. Under these schemes, people eligible for medical release — many of whom are actively dying, or who live with paralysis, or who are experiencing severe cognitive decline — are expected to not only draft compelling legal filings, but are also expected to find their own housing and outside medical care, all from behind prison walls.... Expecting sick and dying incarcerated people to represent themselves undermines the very existence of these laws.

People who have suffered some of the most extreme harms of the criminal legal system—such as unconstitutional conviction or a sentence that is punctuated by a serious medical diagnosis—need improved access to legal assistance. But so do people who have been harmed in quieter, more common ways. Few people outside the system know that departments of corrections have enormous power to both lengthen and reduce sentences. Prison systems can award sentencing credit for participation in programs, in work assignments, and sometimes for no reason at all. Conversely, and perniciously, prison systems can take that sentencing credit away. Prison officials use this power capriciously, sometimes for significant incidents of misconduct, sometimes for technical rule violations, and sometimes for seemingly no reason at all.... Legal advocates can significantly move up an incarcerated person’s release date simply by advocating to ensure that they get the sentencing credit that they deserve, while ensuring that credit is not taken away illegally or unjustly....

For [some], the only hope of freedom [is] clemency, an act of “grace” that is usually held exclusively by state governors or, for those in the federal system, the president. Unencumbered by the burdensome rules that govern other forms of post-conviction relief, clemency has historically been a nimble vehicle to correct excessive sentences, unjust prosecutions, or criminal legal events that feel unjust years or decades after the fact. Governors and presidents used to grant clemency routinely, but it has become extremely rare since the 1950s.

However, while the use of clemency has plummeted, the number of people for whom clemency is the only possible avenue for freedom has skyrocketed. Before the 1970s, only seven states authorized life-without-parole sentences, and even those states rarely imposed them. Today every state allows life or virtual life sentences, and more than 200,000 people are currently serving these draconian prison terms. For them, clemency is the most probable path out of prison, and it is generally the only way for an incarcerated person to ask for release from prison based on their rehabilitation and personal growth.

There are many reasons that clemency applicants should have representation. Clemency is a slow process, subject to rules that feel both pointless and burdensome. Successfully navigating it often depends on receiving help from someone with experience in clemency. Still, the right to counsel does not extend to clemency, leaving most incarcerated people to pursue their only hope for freedom on their own.

Another federal ruling that aspects of Michigan's sex offender registry is unconstitutional

As detailed in this local article, in the past week a "federal judge in Detroit has ruled parts of Michigan’s Sex Offenders Registration Act are unconstitutional."  (Disclosure: I have worked with a group of law professors on amicus briefing in these matters.)  Here is more about yet another ruling finding various constitutional and other problems with Michigan’s law:

Last Friday, U.S. District Judge Mark Goldsmith ruled on a lawsuit the ACLU filed in February 2022 on behalf of several Michigan sex offenders over the state law, which was first passed in 1994 but changed in 2021. The suit named Gov. Gretchen Whitmer and then-Michigan State Police Commander Col. Joseph Gasper as defendants.

The 2022 lawsuit was the fourth time the organization challenged the state's sex offender registry in the past decade.  "This decision once again shows that Michigan’s sex offender registry is not only bloated, costly, and ineffective, but does not hold up to constitutional scrutiny and must be overhauled by state lawmakers," Miriam Aukerman, ACLU of Michigan senior staff attorney, said in a statement....

The ACLU of Michigan said when it filed its 2022 lawsuit that it was challenging the parts of the state's sex offender registry law that treat all registrants as high risks to public safety without consideration of the circumstances of their offense, the passage of time, their age, their rehabilitation, their health, or their cognitive and physical abilities.  It also said elements of the registry are being unconstitutionally applied retroactively, reporting requirements compel speech in violation of the First Amendment and that the system lacks individual risk assessment, which violates due process and equal protection.

On Monday, ACLU officials said Goldsmith agreed with them on several of its arguments in the suit, including:

∎ Retroactively extending registration terms from 25 years to life violates the Constitution;

∎ People who were not convicted of a sexual offense cannot be subjected to the law without a judicial hearing;

∎ Michigan cannot impose harsher registration requirements on people with out-of-state convictions than on people with state convictions;

∎ The law's requirements for registrants to report internet identifiers like email and social media accounts violate their First Amendment rights;

∎ Forcing registrants to attest that they understand the sex offenders registration act, even if they do not, is unconstitutional compelled speech.

The judge also ruled against the ACLU on three claims involving individualized review, opportunities to petition for removal, and reporting requirements, they said. The court also found that one claim was moot and another might require additional briefing.

More than 45,000 people are on the state's sex offender and the list is the fourth largest in the country, according to the ACLU.  Officials said under the court's decision, about 17,000 people will be removed after they complete 25 years on the registry without another registrable offense. In addition, more than 3,000 people with out-of-state convictions will be entitled to a judicial determination of their registration requirements.

They also said if the state seeks to keep about 300 people on the registry based on convictions for non-sex offenses, then a judicial hearing will be required.  Furthermore, the in-person reporting requirements will change for about 31,000 people and the internet reporting requirements will change for about 14,000 people, the group said.

The full 115-page ruling from the District Court is available at this link.

Pennsylvania Supreme Court finds legal error when sentencing court "relied upon prior arrests as a sentencing factor"

A helpful colleague made sure I did not miss an interesting new opinion from the Pennsylvania Supreme Court in Commonwealth v. Berry, No. 16 EAP 2023, J-9A-2024 (Pa. Sept. 26, 2024) (available here).  Here is how the unanimous 24-page ruling gets started:

James Berry was convicted of several crimes arising from his sexual abuse of two young family members. For purposes of tabulating the applicable recommended sentencing range under the under the Pennsylvania Sentencing Guidelines, Berry had no prior convictions or juvenile adjudications, which resulted in a “prior record score” of zero.  The sentencing court ultimately imposed a sentence that deviated significantly upward from the standard sentencing range recommended by the sentencing guidelines.  Explaining its reasons on the record, the court stated that Berry’s arrest record (which the court characterized as “previous other contacts” with the criminal legal system) essentially negated Berry’s absence of a prior criminal record.

Challenging the discretionary aspects of this sentence, Berry appealed to the Superior Court, which affirmed.  Upon allowance of appeal, we must decide whether a sentencing court lawfully may consider Berry’s record of prior arrests, which did not result either in juvenile adjudications or adult convictions, as a factor at sentencing.  Because arrests without conviction “happen[ ] to the innocent as well as the guilty,” they offer nothing probative about a defendant’s background at sentencing.  Thus, the sentencing court misapplied the law by predicating the sentence in part upon Berry’s arrest record. Accordingly, we reverse the order of the Superior Court and we remand for resentencing.

There is considerable nuance in this opinion, as the court avoided reaching the defendant's constitutional claim based in due process by ruling in his favor as a matter of state stautory law. In addition, the court also avoided addressing prosecutors' arguement that it would be proper for a sentencing judge to consider conduct underlying an arrest because the "sentencing court provided no indication on the record that, as to Berry’s arrest record, it considered anything other than the fact of prior arrests."

Caroline Ellison sentenced to two years in prison for her role in FTX collapse

As reported in this CNBC article, "Caroline Ellison, the star witness in the prosecution of her former boyfriend, FTX founder Sam Bankman-Fried, was sentenced Tuesday in New York federal court to two years in prison and ordered to forfeit $11 billion for her role in the massive fraud and conspiracy that doomed the cryptocurrency exchange once valued at $32 billion."  Here is more about her sentencing:

The prison term was significantly stiffer than the recommendation by the federal Probation Department that Judge Lewis Kaplan sentence Ellison to three years of supervised release, with no time at all behind bars.

Defense lawyers also had requested a no-prison sentence for Ellison, who had run the hedge fund Alameda Research, which had received much of the $8 billion in customer funds looted by Bankman-Fried from FTX.  The stolen money was used for Alameda’s trading operation and other purposes.

While Kaplan praised Ellison for her extensive cooperation with prosecutors — which led to the conviction of Bankman-Fried — the judge said her criminal sentence needed to deter other potential bad actors from committing fraud.

The judge said that the FTX case is probably the greatest financial fraud perpetrated in the history of the United States, and because of that a “literal get-out-of-jail-free card I can’t agree to,” Kaplan said in U.S. District Court in Manhattan, where Ellison’s parents and two sisters looked on from the courtroom’s gallery.

“I’ve seen a lot of cooperators over the years and I’ve never seen one quite like Miss Ellison,” said Kaplan, who also said he believed that Ellison was genuinely remorseful for her crimes and that her cooperation carried a steep price for her emotionally....

Ellison read from a statement in a shaky voice while crying at times as she apologized to the people she had hurt and said she was deeply ashamed. She also said she was sorry for being brave enough to walk away from FTX and Bankman-Fried....

Ellison reached a plea deal with prosecutors in December 2022, a month after FTX spiraled into bankruptcy. She pleaded guilty to conspiracy and financial fraud charges. Bankman-Fried, in contrast, chose to stand trial and was convicted of all seven criminal fraud charges against him in the same courthouse where she was sentenced.

He was sentenced to 25 years in prison in March and also was ordered to pay $11 billion in forfeiture by Kaplan. Bankman-Fried since then has appealed his conviction, and requested a new trial and a different judge, arguing that Kaplan was biased against him.

Two other former FTX executives, Gary Wang and Nishad Singh, are scheduled to be sentenced later this year. Like Ellison, they pleaded guilty instead of standing trial....

On Tuesday, before sentencing Ellison, Kaplan contrasted her conduct after she was charged with that of Bankman-Fried.  While the FTX founder had denied criminal conduct, she cooperated with authorities, Kaplan noted.  “It didn’t work out so well” for Bankman-Fried, in part because of Ellison’s cooperation, the judge said.

Both Bankman-Fried and Ellison had faced the same statutory maximum sentence of about 110 years in prison for their crimes. But defendants in criminal cases who cooperate with prosecutors instead of fighting the charges particularly in white-collar cases such as FTX, often receive leniency when they are sentenced.

A few prior related posts:

• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds
• For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served
• Feds praise Caroline Ellison's cooperation while refusing to suggest any specific sentence when federal guidelines recommend LWOP

"Plea Agreements and Suspending Disbelief"

The title of this post is the title of this new essay authored by Sam Merchant now available via SSRN (and forthcoming in the Federal Sentencing Reporter). Here is its abstract:

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker.  Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range.  Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence.  The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged.  Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

Notable example of clemency as another form of second-look sentencing in Arizona

Most modern discussions of what is often called "second-look" sentencing typically focus on the opportunities and processes for judges to reconsider on various grounds the duration of the prison sentences they previously imposed.  But there is, of course, a kind of second-look sentencing mechanism with a much longer history and a constitutional pedigree, namely executive clemency.  And this new local story from Arizona, headlined "Arizona man sentenced to 292 years for nonviolent crimes released from prison," provides a notable example of state clemency as a kind of second-look sentencing.  Here are some of the particulars:

After serving 10 years of a 292-year sentence for nonviolent offenses, an Arizona man has been released from prison. Atdom Patsalis, who was recently granted clemency and sentenced to home arrest, was greeted by family and supporters as he walked out of a community reentry building in Phoenix Thursday morning.

He said it felt surreal to finally be free. "I had absolutely accepted the fact that I would spend the rest of my life in prison," Patsalis said. "So this feels like a dream."

In 2015, Patsalis was convicted on 25 felony counts stemming from a string of residential burglaries in Bullhead City over three months in late 2013 and early 2014. He was in his early 20s at the time, homeless and struggling with drug addiction. The judge ordered all convictions to run consecutively, turning a series of lesser sentences into a life sentence.

Patsalis spent years appealing the convictions but was ultimately unsuccessful. With the help of the Arizona Justice Project, a Phoenix-based nonprofit that advocates for the innocent and wrongly convicted, Patsalis recently secured a shortening of his sentence through the clemency process.

After a final hearing earlier this month, the Arizona Board of Clemency agreed to release Patsalis to home arrest, subject to electronic monitoring....

Shawnee Ziegler, the Arizona Justice Project's director of operations, worked on Patsalis' case and credited the Arizona Board of Executive Clemency for looking at who Atdom had become, not just the person who committed the crimes. "Atdom's case was one of the worst cases of manifest injustice that we had seen in the 26-year history of our project," she said. "So being here today to watch him walk out is just a miracle."...

In four months, Patsalis will have an opportunity to go before the Clemency Board again to potentially be given general parole without any monitoring. Eventually, he could see an absolute discharge of his sentence.... "I don't think that the justice system is supposed to be about locking people up and taking people's hope away," Pastalis said. "It's about giving people the opportunity to make different choices and decisions. Giving them an opportunity to have a second chance."

Feds praise Caroline Ellison's cooperation while refusing to suggest any specific sentence when federal guidelines recommend LWOP

In this recent post, I flagged the upcoming sentencing of Caroline Ellison as an interesting high-profile case in which the federal sentencing guidelines call for an LWOP sentence, but the presentencing report recommended only "time served with three years of supervised release."   Yesterday the feds weighed in without a specific sentencing recommendation, but signaling her cooperation called for quite a sentencing reward.  This New York Times piece provides these details:

Caroline Ellison, a close colleague of the disgraced cryptocurrency mogul Sam Bankman-Fried, provided “extraordinary cooperation” to the government, federal prosecutors said on Tuesday, signaling that she should receive a lenient sentence for her role in the sweeping fraud that led to the collapse of the FTX crypto exchange.

Ms. Ellison, 29, who was also Mr. Bankman-Fried’s on-and-off girlfriend, pleaded guilty to fraud shortly after FTX collapsed in November 2022, alongside two other members of his inner circle. In a court filing this month, Ms. Ellison’s defense lawyers asked the judge overseeing the case, Lewis A. Kaplan, to sentence her to three years of supervised release, with no prison time.

In the government’s filing on Tuesday, prosecutors did not recommend a specific sentence to the judge but pointed out that her cooperation was “not only substantial, but exemplary.” Ms. Ellison was the star witness at Mr. Bankman-Fried’s trial last fall in federal court, where she spent nearly three days on the stand.  She described an incriminating spreadsheet that Mr. Bankman-Fried had used to mislead business partners and recounted the final days of FTX, holding back tears as she delivered some of the trial’s most emotional testimony.

Mr. Bankman-Fried was convicted of a sophisticated fraud that siphoned $8 billion from customer accounts to finance venture investments, political donations and other spending. He was sentenced to 25 years in prison in March.  Judge Kaplan is set to decide Ms. Ellison’s sentence in federal court in Manhattan on Sept. 24.

“In her many meetings with the government, Ellison approached her cooperation with remarkable candor, remorse and seriousness,” the prosecutors wrote in their 14-page memo to Judge Kaplan.  “And she persevered despite harsh media and public scrutiny and Bankman-Fried’s efforts to publicly weaponize her personal writings to discredit and intimidate her.”...

In their sentencing memo, Ms. Ellison’s lawyers detailed the often-stormy romantic relationship between their client and Mr. Bankman-Fried.  For years, they wrote, Ms. Ellison was effectively in his thrall, living in a social “bubble” centered on Mr. Bankman-Fried. At his suggestion, Ms. Ellison started taking Adderall so that she could work longer hours, the memo said. Mr. Bankman-Fried initially “suggested their liaison would develop into a full relationship,” the lawyers wrote.  “But after a few weeks, he would ‘ghost’ Caroline without explanation.”...

Since pleading guilty, Ms. Ellison has struggled to find paying work, according to her lawyers’ memo. She was turned down for a job with a charity that promoted math education for young women.  At one point, she secured a position helping low-income families prepare tax returns; a couple of weeks later, she was asked to leave after the employer realized who she was, according to a letter from her aunt that was filed with the sentencing memo.

Ms. Ellison has volunteered for more than 700 hours with community organizations, teaching adult literacy classes and fostering rescue dogs, the memo said.  She is working with her parents, who both teach at the Massachusetts Institute of Technology, on a math enrichment textbook for advanced high school students, and has written a novella set in Edwardian England.

A few prior related posts:

• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds
• For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served

Any recommendations for Amendments needing SCOTUS attention on this Constitution Day?

In this post on this day 15 years ago, I used the occasion of Constitution Day to encourage discussion of parts or provisions of the Constitution that seem under-appreciated.  That post and its comments were amusing to review for various reasons, and I figured today might call for a variation on that theme.  Specifically, with the Supreme Court's new Term just a few weeks away, I wonder if anyone might be eager to flag some Amendments that they wish SCOTUS would give some more attention.

As I have noted before, in recent X/Twitter postings, Orin Kerr has bemused and on-going hand-wringing about the fact that the Supreme Court has now completed "three straight Terms of deciding no Fourth Amendment cases."  To make him happy and for other good reasons, I would certainly like to see SCOTUS get back to giving attention to various aspects of the Fourth Amendment's application in our modern digital age.  And, of course, regular readers know that the Fifth and Sixth Amendment issues implicated by acquitted conduct sentencing are matters that I consider long overdue for more Supreme Court attention.  The Eighth Amendment got some attention in the Grants Pass case last Term, but in a quirky setting, and I can never get enough of the Justices' explanation of the limits of the Cruel and Unusual Punishments Clause.

In a post here a few months ago, I noted Kent Scheidegger's insightful lament about the "high court’s apparent lack of interest in the constitutional criminal procedure cases that once made up a large part of its docket."  In that post, I set out my theory that some of the conservative current Justices may be fearful about where their originalist inclinations could take them in the constitutitional criminal procedure cases that used to be a mainstay of the SCOTUS docket.  The quick "evolution" from Bruen to Rahimi, as well as the continued churn in lower courts over the new originalist turn in Second Amendment jurisprudence, is a clear indication that forging new originalist jurisprudence in the criminal law arena creates considerable uncertainty (and fuels all sort of new litigation by convicted persons).  That also proved the (still on-going) story surrounding the originalist Sixth Amendment turns from Crawford and Blakely two decades ago.

With the long conference just weeks away, I hope there are all sorts of juicy constitutional criminal cases in the works for the coming SCOTUS Term.  Especially for a law professor, it is always "good for business" when various constitutional amendments get some more attention.  But perhaps folks might have thoughts in the comments about where they would like to see the Justices' focus more time and attention.

A couple older and newer prior related posts:

• Seeking input on the most under-appreciated part of the US Constitution
• Not quite original(ist) musings on SCOTUS showing little interest in constitutional criminal procedure cases 

Notable and high-profile example of second-look sentencing reduction in Colorado

Regular readers know I am a fan of second-look sentencing mechanisms, and I was thus intrigued to see this press report out of Colorado seeming to involve a notable sentence reduction in a notable high-profile state case.  Here are the details:

A judge in Adams County District Court on Friday wiped away the 5-year prison sentence being served by a former Aurora paramedic convicted in the death of Elijah McClain.  Judge Mark Warner vacated Peter Cichuniec’s prison term and converted the sentence to four years of probation, a move prosecutors previously said would “undermine the jury’s verdict” in the case.  “The court finds, really, there are unusual and extenuating circumstances and they are truly exceptional in this particular case,” Warner said during a brief hearing.

Cichuniec, 51, was convicted of criminally negligent homicide and assault by drugging in the 2019 killing of McClain, a 23-year-old Black man who died after Aurora police put him in a neck hold and a paramedic injected him with an overdose of the sedative ketamine.  Cichuniec was supervising the paramedic who injected the drug. He was the only one of the three people convicted on charges stemming from McClain’s death to be sent to prison.

Warner in March sentenced Cichuniec to five years in prison — the mandatory minimum prison time required under Colorado law for the assault conviction — but Cichuniec in June asked the judge to reduce the length of the sentence on the grounds that his case involves “unusual and exceptional” circumstances.

State law allowed Warner to reduce the mandatory minimum prison sentence after Cichuniec spent at least 119 days in prison and after the Colorado Department of Corrections assessed Cichuniec’s risk level and reported back to the judge, which both happened.

Prosecutors opposed Cichuniec’s request, writing in a court filing that lowering Cichuniec’s sentence would be against the interests of justice.  They noted that it is rare for mandatory prison sentences to be reduced under the exception in state law that Cichuniec claimed, with just 203 sentences modified under the statute between 1977 and June 2024....

As he issued his ruling, Warner commented on Cichuniec’s lack of prior criminal history, rehabilitative potential, good character and his prior “pro-social” history, as well as his overall role in the events that led to McClain’s death — Cichuniec was the highest-ranking paramedic at the scene, but was most directly responsible for “the logistics of the call and safety of others involved,” Warner said....

Warner noted as he ruled Friday that Cichuniec needed to make quick decisions that night.  “The court must also, and does today as well, look at the deterrence effect of the sentence,” Warner said.  “…For the most part, the court believes based on the issues that arose in this case, a deterrence effect has been really accomplished and there are unique circumstances to this case.”...

[Former paramedic Jeremy] Cooper and former Aurora police officer Randy Roedema were each convicted of criminally negligent homicide and sentenced to 14 months of work-release.  Two other Aurora police officers, Jason Rosenblatt and Nathan Woodyard, were acquitted by juries of all criminal charges in McClain’s death.

I do not know any of the particulars of Colorado sentencing law, but it seems the state has had a limited form of second-look sentencing in place for many decades. And yet the data reported in this article suggest that each year, on average, fewer than five sentences get modified pursuant to the applicable statute. These details are interesting in general, as is the application of the law in this case.

"Scrutinizing Sentencing"

The title of this post is the title of this notable new essay authored by Christopher Slobogin which was just posted to SSRN (and seems quite well timed right before we are to celebrate Constitution Day). Here is its abstract:

Physical liberty is the most fundamental of all constitutional rights.  Yet the Supreme Court has continued to employ rational basis review of criminal sentencing rather than ensure that prison sentences are narrowly tailored to meet a compelling state interest.  Properly scrutinized, mandatory sentencing regimes, extremely long sentences, and boilerplate parole and probation conditions would be unconstitutional.

Should Alabama's next scheduled nitrogen gas execution be video recorded?

The question in the title of this post is prompted by this AP piece discussing litigation over the nitrogen gas execution scheduled in less than two weeks in Alabama.  Here are excerpts: 

The state of Alabama asked a judge Friday to deny defense lawyers’ request to film the next execution by nitrogen gas in an attempt to help courts evaluate whether the new method is humane.

The request to record the scheduled Sept. 26 execution of Alan Miller was filed by attorneys for another man facing the death penalty, Carey Dale Grayson. They are challenging the constitutionality of the method after Alabama carried out the nation’s first execution by nitrogen gas in January, when Kenneth Smith was put to death.

“Serious constitutional questions linger over Alabama’s nitrogen hypoxia protocol. To date, the only instance of a judicially sanctioned execution — that of Kenneth Eugene Smith — using nitrogen did not proceed in the manner defendants promised,” lawyers for inmate Carey Dale Grayson wrote. Grayson is scheduled to be executed in November with nitrogen gas.

Witnesses to Smith’s execution described him shaking on the gurney for several minutes as he was put to death by nitrogen gas. Alabama Attorney General Steve Marshall declared the execution was a “textbook” success. Attorneys for Grayson wrote that, “one way to assist in providing an accurate record of the next nitrogen execution is to require it be videotaped.”

The lethal injection of a Georgia man was recorded in 2011.  The Associated Press reported that video camera and a camera operator were in the execution chamber.  Judges had approved another inmate’s request to record the execution to provide evidence about the effects of pentobarbital.  A 1992 execution in California was recorded when attorneys challenged the use of the gas chamber as a method of execution.

The Alabama attorney general’s office on Friday asked U.S. District Judge R. Austin Huffaker, Jr. to deny the request. “There is no purpose to be served by the contemplated intrusion into the state’s operation of its criminal justice system and execution of a criminal sentence wholly unrelated to this case,” state attorneys wrote in the court filing.

"Plea Agreements and Suspending Disbelief"

The title of this post is the title of this new essay authored by Sam Merchant and available via SSRN. Here is its abstract:

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker.  Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range. Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence.  The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged.  Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

"Beyond Problem-Solving Courts"

the title of this post is the title of this new paper on SSRN authored by Erin Collins.  Here is its abstract:

Problem-solving courts were borne out of a well-meaning experimentalist spirit, one that inspired judges to attempt to close the so-called “revolving door” to the courthouse by providing treatment instead of, or in addition to, incarceration. The problem-solving court movement is now more than thirty years old and the results of this experiment in court reform are underwhelming.  Viewed in the most favorable light, studies suggest that problem-solving courts can modestly reduce the likelihood that some court participants will be arrested or convicted again.  Meanwhile, the 40% to 60% of people who begin but do not complete problem-solving court programs often fare worse than they would have otherwise.

In this Article, I argue that it is time to stop trying to perfect problem-solving courts and to instead begin to close this door to the criminal courthouse altogether.  This will require some radical honesty about what these specialized courts do — and do not do — and the ways this punishment model creates unintended harms.  But this reckoning is also an opportunity to revive the experimentalist spirit that animated the earliest problem-solving courts and inspired judges to do things differently in the hopes of building a different future.  This Article ultimately is a call to envision new ways to provide services and opportunities that could help people thrive, and an invitation to open doors to new paths that avoid the system altogether.  In short, I argue that it is time to move beyond problem-solving courts.

"An Empirical Exploration of a Jury Veto"

The title of this post is the title of this new paper available via SSRN authored by Stephen Henderson, Vanessa Edkins and Matthew Jensen. Here is its abstract:

Among the many contemporary dissatisfactions with American criminal justice are longstanding concerns relating to the scarcity of jury trials and the resulting lack of democratic oversight and control in the adjudicative process.  A novel solution has recently been proposed in the form of a ‘jury veto’: perhaps a jury could be empaneled, prototypically if not exclusively by defense request, that would be empowered to select between the judicially-imposed sentence and a prosecutorial and defense alternative.

We conduct the first empirical exploration of such a structure and find reason to believe it could lessen the disconnect between the American framing vision of citizen control and the current reality.  In particular, we find sentencing preferences different from prevailing norms and resilient to the form of conviction (i.e., guilty plea versus trial verdict), but predictably influenced by anchoring, framing, and adjustment. This suggests a veto could improve criminal adjudications but will require careful structure, and we describe how further study of both citizen pools and legal actors could continue to probe this novel device.

For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served

If anyone wants a good example of the federal sentencing guidelines not doing an effective job of guiding a federal sentencing judge, consider the specifics of the upcoming high-profile sentencing of Caroline Ellison.  This CNBC story about a sentencing filing provides some of the background, as well as helpful links to some key court documents:

Lawyers for Caroline Ellison, the star witness in the prosecution of FTX founder Sam Bankman-Fried, are recommending no prison time for their client’s role in the implosion of the crypto empire that was run by her former boss and ex-boyfriend.

In a court filing Tuesday night, the attorneys said that, at most, Ellison should be sentenced to time served and supervised release because of her swift return to the U.S. from FTX’s Bahamas headquarters in 2022 and her choice to voluntarily cooperate with the U.S. attorney’s office and financial regulators in helping them understand what went wrong at FTX and sister hedge fund Alameda Research. 

Judge Lewis Kaplan, who presided over Bankman-Fried’s case, cited Ellison’s testimony when he decided in March to sentence the FTX founder to 25 years behind bars.  Ellison, who ran Alameda Research, agreed to a plea deal in December 2022, a month after FTX spiraled into bankruptcy. Unlike Bankman-Fried, who was convicted of all seven criminal fraud charges against him, Ellison pleaded guilty to conspiracy and financial fraud charges, rather than go to trial.

The Tuesday filing also refers to the recommendation of the court’s Probation Department that Ellison be given a sentence of “time served with three years of supervised release” as a credit to her “extraordinary cooperation with the government” and “her otherwise unblemished record.”  Lawyers added that the department’s presentence report, which referenced numerous character testimonials speaking to Ellison’s ethics and integrity, also recommended that she not be fined.  “Caroline poses no risk of recidivism and presents no threat to public safety,” the filing says. “It would therefore promote respect for the law to grant leniency in recognition of Caroline’s early disclosure of the crimes, her unmitigated acceptance of responsibility for them, and — most importantly — her extensive cooperation with the government.”

In the filing, FTX CEO John Ray, who has been guiding the crypto firm through bankruptcy proceedings, describes Ellison’s cooperation as “valuable” in helping his team protect and preserve “hundreds of millions of dollars” in assets.  He added that she has worked with his advisors to provide information regarding private keys to cryptocurrency wallets that contain “estate assets, DeFi positions, FTX exchange internal account information, the use of third-party exchanges for pre-petition trading, and pre-petition auditing practices.”

The 67-page document describe large swaths of Ellison’s life, starting from her earliest days in Boston and stretching into her protracted and troubled romance with Bankman-Fried. In that time, she “moved around the globe at his direction, first to Hong Kong and later the Bahamas,” and “worked long, stressful, Adderall-fueled hours,” the filing says.  Bankman-Fried forced Ellison into a sort-of isolation, culminating in her moral compass being “warped,” the lawyers say. At his direction, Ellison helped “steal billions,” all while living “in dread, knowing that a disastrous collapse was likely, but fearing that disentangling herself would only hasten that collapse.”

“Bankman-Fried convinced her to stay, telling her she was essential to the survival of the business, and that he loved her,” all “while also perversely demonstrating that he considered her not good enough to be seen in public with him at high-profile events,” the filing says.

Though I have only had a chance to briefly scan Ellison's sentencing memorandum, I noticed it included no objection to the calculated guideline range, which produced "the Guidelines sentence of life imprisonment, reduced to the statutory maximum of 1,320 months" (110 years).  As guideline mavens know, the massive "loss" in this case drove Ellison’s guideline calculation to produce a recommended LWOP sentence; as federal sentencing mavens know, pleading guilty and providing "extraordinary cooperation with the government" is one critical way a defendant can seek to get a judge to ignore the guidelines at sentencing.

It will be interesting to see if the feds ask for any prison time here, but I am quite sure they will not be urging Judge Kaplan to follow the guidelines.  After all, the feds urged a sentence well below LWOP even for Sam Bankman-Fried even though his guideline calculation was literally "off the grid" and had the highest calculated offense level I had ever seen.  White-collar prosecutors and defense attorneys have long known, of course, that guideline calculations in high-dollar, white-collar cases often amount to a kind of Kabuki theater amounting to little of real substance.  That reality is surely on display, yet again, in the FTX sentencings.

Some prior related posts about SBF's sentencing

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds

Spotlighting new book that spotlights First Step Act compassionate release and sentence reconsideration

I was pleased to see that Adam Liptak today committed his Sidebar column in the New York Times to federal compassionate release issues in conjunction with US District Judge Frederic Block's new book  on the topic, "A Second Chance: A Federal Judge Decides Who Deserves It."  I recommend both the full NYTimes article and the full book.  The subtitle of the article serves as a kind of summary of both: "In a new book, Judge Frederic Block, who has served for decades, urged courts to vindicate the promise of the First Step Act, which lets prisoners ask for compassionate release from their sentences."  And here are excerpts from the article:

Judge Frederic Block is 90, and he has had decades to consider what counts as his gravest responsibility. “Look,” he said over the phone the other day, “the most important part of the job of a district court judge is sentencing.”...

Still, sometimes a sentence that made sense when it was imposed can look like a bad fit over time. Prisoners grow old or get sick.  The laws under which they were sentenced change.  Others who committed the same crimes get starkly different prison terms. Doubts arise about guilt.  On occasion, everyone agrees that the prisoner has been thoroughly rehabilitated.

In a timely book to be published next week, Judge Block makes a vigorous case for giving judges wide discretion to revisit sentencing decisions, describing cases he has encountered and urging states to adopt a more lenient approach.

The book, “A Second Chance: A Federal Judge Decides Who Deserves It,” arrives as federal courts are deeply divided on the question, one prompted by an extraordinary 2018 law, the First Step Act.  The law, enacted by enormous bipartisan margins and with President Donald J. Trump’s backing, overhauled federal sentencing.  A major feature of the law lets prisoners file motions for compassionate release in “extraordinary and compelling” circumstances.

“The First Step Act just really changed the sentencing landscape in the United States, because we are getting these motions every week,” said Judge Block, who was appointed by President Bill Clinton.  “As I speak right now, I probably have two new ones today,” he said. “Understandably, the district court bench will be inundated with them.  Because if you’re in jail and you have the opportunity to make an application asking the district court judge to reduce your sentence, you want to do it.”

But what counts as “extraordinary and compelling” is deeply contested.

"Recidivist Organizational Offenders and the Organizational Sentencing Guidelines"

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

Despite recent Congressional hearings and public attention, the question of how to fairly and efficiently punish recidivist organizational offenders remains unresolved.  Any discussion regarding the most optimal legal response to recidivist organizational crime is incomplete without a solution accounting for the use of organizational deferred prosecution agreements ("DPAs") and non-prosecution agreements ("NPAs").  These tools allow criminal defendants to resolve charges without sustaining convictions that attach to the defendants' criminal records, and they are used often in the organizational context.

This Article is the first to recognize that the federal sentencing scheme fails to promote deterrence and fairness in the context of organizational sentencing and is the first to offer a practical solution to this problem.  The federal sentencing scheme currently does not require an increase in an organizational defendant's sentence when the defendant previously executed DPAs or NPAs before its subsequent criminal conduct.  Yet the federal sentencing guidelines do require an increase in an individual defendant's sentence if the individual previously executed a DPA. Meanwhile, the existence of prior DPAs and NPAs is a hallmark of organizational recidivism that demonstrates an organization is more culpable than other organizational defendants.  Accordingly, this Article recommends that the Sentencing Commission amend the federal sentencing guidelines to require sentencing courts to increase organizations’ sentences based on prior DPAs and NPAs.  This Article offers specific amendments for consideration. Finally, until the sentencing guidelines are amended, sentencing courts can use tools already in place to begin imposing more fair organizational sentences.

Former Prez Trump's state sentencing date push to week of Thanksgiving

As reported in this New York Times piece, the "judge overseeing Donald J. Trump’s criminal case in Manhattan postponed his sentencing until after Election Day, a significant victory for the former president as he seeks to overturn his conviction and win back the White House."  Here is more from the start of the article:

In a ruling on Friday, the judge, Juan M. Merchan, rescheduled the sentencing for Nov. 26. He had previously planned to hand down Mr. Trump’s punishment on Sept. 18, just seven weeks before Election Day, when Mr. Trump will face off against Vice President Kamala Harris for the presidency.

While the decision will avert a courtroom spectacle in the campaign’s final stretch, the delay itself could still affect the election, keeping voters in the dark about whether the Republican presidential nominee will eventually spend time behind bars.

It is unclear whether sentencing Mr. Trump in September would have helped or harmed him politically; his punishment could have been an embarrassing reminder of his criminal record, but could have also propelled his claims of political martyrdom.

Justice Merchan’s decision came at the request of Mr. Trump, who had asked to delay the sentencing until after the election, partly so he had more time to challenge his conviction. Prosecutors working for the Manhattan district attorney, Alvin L. Bragg, who brought the case, had deferred to the judge, paving the way for at least a brief postponement.

UPDATE: I have now seen this letter released by Justice Merchan to explain his adjuornment decision. Here are a few key passages:

'This matter is one that stands alone, in a unique place in this Nation's history, and this Court has presided over it since its inception — from arraignmcnt to jury verdict and a plenitude of motions and other matters in-between.  Were this Court to decide, after careful consideration of the Supreme Court's decision in Trump, that this case should proceed, it would be faced with one of the most critical and difficult decisions a trial court judge faces — the sentencing of a defendant found guilty of crimes by a unanimous jury of his peers....

Unfoftunately, we are now at a placeirn time that is fraught with complexities rendering the requirements of a sentencing hearing, should one be necessary, difficult to execute.  Thus, in accordance with certain of the grounds submitted by Defendant and the reasons for adiournment provided by the People coupled with the unique time frame this matter currently finds itself in, the decision on the CPL § 330.30 motion and the imposition of sentence will be adjourned to avoid any appearance — however unwarranted — that the proceeding has been affected by or seeks to affect the approaching Presidential election in which the Defendant is a candidate.

On morning of scheduled federal trial, Hunter Biden attempts to enter an Alford plea

As reported here in the Washington Post, "President Joe Biden’s son Hunter tried to resolve his federal tax case Thursday as jury selection was about to begin, offering an Alford plea in which he maintains he is innocent but acknowledges that the prosecution’s evidence would likely result in a guilty verdict." Here is more:

Prosecutors objected to the proposal, which they had not been told of in advance.  U.S. District Judge Mark Scarsi is expected to decide this afternoon whether to adjourn the proceedings until Friday or give the two sides more time to come to agreement.

“I want to make crystal clear: the U.S. opposes an Alford plea ... Hunter Biden is not innocent, he is guilty," Leo Wise, an attorney working for special counsel David Weiss, told the judge. "We came to court to try this case.”

Biden’s attorney, Abbe Lowell, noted that Alford pleas are an option available to all criminal defendants — even though such plea agreements are relatively rare. “All over the U.S. people do this,” Lowell said.  "It’s not that [Hunter Biden] seeks special treatment, but that he gets the same rights as everyone who is charged.”

Weiss charged Biden last year on nine tax-related counts, accusing him of failing to pay at least $1.4 million in federal taxes from 2016 through 2019.  Three charges were felonies and six were misdemeanors.  They include failing to file and pay taxes, tax evasion and filing false tax returns. Weiss separately charged Biden last year with three felony gun counts in Delaware.  A jury convicted Biden on all three charges in June, and he is scheduled for sentencing in November.

The indictments came after a lengthy investigation into Biden’s business dealings while his father was vice president, which Republican lawmakers and former president Donald Trump have tried to use as evidence of corruption within the Biden family. No evidence has surfaced publicly to suggest any wrongdoing by Joe Biden.

The younger Biden has said he has undergone treatment for addiction and is no longer using drugs. While his addiction to crack cocaine was a central theme of his gun trial, the Los Angeles case is expected to delve into Biden’s lavish spending and sex life during that period — much of which he chronicled in his 2021 memoir. Among the accusations laid out in the nine-count indictment is that Biden wrote off money he paid sex workers as business expenses on his tax forms.

An Alford plea, named after a case North Carolina v. Alford, is a way for a defendant to register a formal admission of guilt toward charges they are facing while simultaneously maintaining their innocence. United States attorneys are only able to consent to Alford pleas “in the most unusual of circumstances” and consult with top officials at the Department of Justice before doing so, according to federal prosecution guidelines....

The president, who has made clear he thinks the criminal charges against his son are politically motivated, has said emphatically that he does not plan to pardon Hunter Biden’s criminal convictions. Some of Hunter Biden’s allies hope he will change his mind, however, and issue a pardon after the November election.

Just as Hunter Biden was beginning the day in court, the president was leaving the White House to travel to La Crosse, Wis., for an event touting his administration’s economic policies. From Air Force One, White House press secretary Karine Jean-Pierre reiterated that the president would not pardon or commute Hunter Biden’s sentence. “No," she told reporters on Air Force One. "It is still very much a no.”

UPDATE: This Politico article reports that Hunter Biden's guilty plea was entered this afternoon, though it appears it was just a standard open plea to the charges rather than an Alford plea:

Hunter Biden pleaded guilty Thursday to tax evasion and other tax crimes in an 11th-hour about-face that surprised prosecutors as a trial was about to begin....

The only remaining question now is how much prison time, if any, Biden will face. Shortly after Biden entered his guilty plea, U.S. District Judge Mark Scarsi scheduled his sentencing on the tax charges for Dec. 16. Biden is scheduled to be sentenced in the gun case in November.

Biden faces up to 17 years in prison for the tax charges, though experts say lighter sentences in similar cases are more common. Scarsi will consider Biden’s admission of guilt when he sentences him....

The plea was not part of a plea deal, meaning prosecutors did not promise to recommend a reduced prison sentence....  After Scarsi questioned the Alford arrangement and signaled he might seek further legal arguments on whether he should accept it, Biden conferred with his lawyers and entered a straightforward guilty plea.

<P>As Scarsi questioned Biden about the plea in open court, the judge stressed that he still had the authority to hand down a hefty sentence.  “With regard to sentencing, there’s no guarantees. You understand that?” Scarsi, an appointee of Donald Trump, asked....

Biden is scheduled to be sentenced on Nov. 13 in the gun case, where federal sentencing guidelines recommend up to 21 months in prison, though Biden could receive much less or even no prison time at all.  In the tax case, prosecutors alleged that Biden earned more than $7 million during the years in question and later plotted to fraudulently lower the taxes he owed on that income by falsely labeling trips and other luxury purchases as business expenses. They said he used the money to fund a lavish lifestyle filled with drugs, strippers and sports cars.

"Terminating Supervision Early"

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

Community supervision is a major form of criminal punishment and a major driver of mass incarceration.  Over 3.5 million people in the United States are serving terms of probation, parole, or supervised release, and revocations account for nearly half of all prison admissions.  Although supervision is intended to prevent crime and promote reentry, it can also interfere with the defendant’s reintegration by imposing onerous restrictions as well as punishment for non-criminal technical violations.  Probation officers also carry heavy caseloads, which forces them to spend more time on enforcing conditions and less on providing support.

Fortunately, the criminal justice system also includes a mechanism to solve these problems: early termination of community supervision.  From the beginning, the law has always provided a way for the government to cut short a defendant’s term of supervision if they could demonstrate that they had reformed themselves.  Recently, judges, correctional officials, and activists have called to increase rates of early termination in order to save resources, ease the reentry process, and encourage rehabilitation.  Yet despite all this attention from the field, there are no law-review articles on terminating supervision early.

In this Article, I provide the first comprehensive analysis of early termination of community supervision.  First, I recount the long history of early termination, from the invention of probation and parole in the 1800s to the Safer Supervision Act of 2023.  Next, I identify and critique recent legal changes that have made it harder for federal criminal defendants to win early termination of supervised release.  Finally, I propose the first empirically based sentencing guideline on terminating supervision early, which I recommend in most cases after 18 to 36 months.  If community supervision drives mass incarceration, then early termination offers a potential tool for criminal justice reform.

Reviewing the state and challenges surrounding former Prez Trump's approaching state sentencing date

The New York Times has this lengthy new piece, headlined "In Deciding When to Sentence Trump, Judge Faces ‘Impossible’ Task," providing a reminder that former Prez Donald Trump is scheduled to be sentenced two weeks from today and all of issues surrounding that reality.  Here are some excerpts:

Justice Merchan has made a steadfast effort to approach the landmark case no differently than hundreds of others he has overseen.  But more than three months after a Manhattan jury convicted Mr. Trump on 34 felony counts of falsifying records to cover up a sex scandal, the veteran judge faces his greatest predicament: He must decide whether to sentence Mr. Trump as planned on Sept. 18 or wait until after Election Day, as Mr. Trump has requested.

Justice Merchan has already agreed to delay the sentencing once, and his upcoming decision — which will be made in the heat of a presidential campaign that has pitted Mr. Trump against Vice President Kamala Harris — will reverberate well beyond his Lower Manhattan courtroom.  The decision could influence not only the election, but American politics for years to come.   And it will almost certainly subject Justice Merchan to partisan second-guessing at a time when the nation’s faith in the judiciary has been shaken by the Supreme Court’s decisions on abortion, guns and other issues, as well as revelations about some of its justices’ own political entanglements....

While Mr. Trump has already been deemed a felon, if Justice Merchan postpones his sentencing until after the Nov. 5 election, the American people will vote without knowing whether Mr. Trump will spend time behind bars.  A delay would also reward the stalling tactics Mr. Trump has deployed throughout the case, and feed the very impression the judge has labored to dispel — that the former president is above the law.  Yet if Justice Merchan, a moderate Democrat who was once a registered Republican, imposes a sentence just seven weeks before Election Day, Mr. Trump will no doubt accuse him of trying to tip the campaign in favor of Ms. Harris....

“Whatever decision Judge Merchan makes will not only be the right decision, it will be driven by nothing other than that which occurred in the context of this case,” said Jill Konviser, a retired judge who has known Justice Merchan for more than 15 years.  “Donald Trump will be treated fairly,” she added.  “Of that, I am 100 percent sure.”...

After finalizing Mr. Trump’s sentencing date, Justice Merchan faces still more delicate decisions.  The judge has promised to rule this month on Mr. Trump’s request to throw out his conviction in light of a new Supreme Court ruling granting presidents some immunity from prosecution.  And, at some point, he will have to actually decide whether to put Mr. Trump behind bars.

Mr. Trump, the first president to become a felon, faces up to four years in prison.  But legal experts believe it is more likely that Justice Merchan will sentence Mr. Trump to a few months in jail or probation.  Whatever his punishment, Mr. Trump is unlikely to be incarcerated before the election.  Even if the judge hands down the sentence on Sept. 18, he could postpone any punishment until after Election Day, or, if Mr. Trump wins back the White House, until after his second term expires.

Nor is Justice Merchan likely to have the final say.  The former president will appeal his conviction to higher courts, and if Justice Merchan sticks with the plan to sentence him on Sept. 18, Mr. Trump will likely appeal that decision as well.

"Prosecution Deferred"

The title of this post is the title of this recent article available on SSRN authored by Shima Baradaran Baughman and Taylor Broadbent. Here is its abstract:

Deferred prosecution agreements (or DPAs) have been used with increasing frequency, particularly in corporate criminal prosecutions, over the past two decades.  By allowing prosecutors to offer a path for rehabilitation without ever having to bring charges against a defendant, deferred adjudication presents a valuable tool for progressive prosecutors to use in a broader movement for criminal justice reform.

However, data on how prosecutors use DPAs –– how often they are offered, and who they are offered to –– has long been lacking.  Drawing on a recent national experiment studying state and local prosecutors, we aim to supplement the existing data to help answer these questions.  We then draw on this more complete picture of how prosecutors at all levels are using DPAs to conclude that, contrary to congressional intent, DPAs have come to be used in practically every corporate criminal prosecution, while they are offered to resolve only a small fraction of individual prosecutions.  We argue that this troubling trend not only runs contrary to the legislation that initiated deferred prosecution agreements but is unjustified on public policy grounds.  This misalignment can likely be remedied by using deferred adjudication more frequently in individual prosecutions, presenting a valuable tool to respond to the endemic challenges of overcriminalization and mass incarceration, while still holding individuals accountable for crime. Increasing the use of deferred adjudication allows individuals facing criminal charges an opportunity at rehabilitation without the collateral consequences and reputational tarnish of prosecution. 

Notable (and failed) argument that “originalist" jury trial right must allow juries to know about sentence and nullification

Last week I came across a short federal district court opinion in US v. Valdivias, No. 20-20054-02-DDC (D. Kan. Aug. 26, 2024) (available here), rejecting some notable originalist jury claims by a drug defendant. I recommend the entire opinion, and here are excerpts:

Before trial, Defendant Hugo Chavez Valdivias filed a Motion to Inform the Jury of the Sentencing Range, to Permit Nullification Arguments, and to Exclude Pattern Criminal Jury Instruction 1.20 (Doc. 204).  First, he asks the court to instruct the jury on sentencing ranges for the charges in the Superseding Indictment.  Second, he asks the court not to instruct the jury that it must ignore possible punishment in evaluating guilt.  Third, he asks the court to permit sentence-based “nullification” arguments.

Defendant supports these three requests by invoking an “originalist understanding of the constitutional jury trial right.” Doc. 204 at 1. He first argues that our Circuit’s cases prohibiting nullification arguments are based on policy, not the Constitution’s original meaning.  This basis, he argues, requires the court to disregard the cases as “obsolete” in light of the Supreme Court applying “methods of originalism” to interpret the Sixth Amendment. Id. at 6. He next argues that Supreme Court cases frequently cited in opposition to jury nullification don’t resolve the issue before the court. Id. at 9–14. 

The government disagrees. It argues that the jury in this case has no role to play in sentencing and so it can’t consider any possible sentence. Doc. 208 at 2. What’s more, our Circuit has held there isn’t a right to sentence-based nullification arguments, id. at 4, and, the government argues, is bound by those precedents, id. at 6.

Our Circuit and the Supreme Court disagree with defendant’s position as well.  And so, following precedent, this court must disagree.

Though I am not completely versed on every aspect of originalist history and arguments regarding the jury trial right, I have read enough historical accounts or jury functioning at the Founding to believe the defendant here could make a robust originalist claim.  But, as the ruling suggests, all contemporary precedents on informing a jury about sentencing issues and nullification power are contrary to these kinds of originalist contentions.  This arena, then, serves as another example (of many) where it would seem a serious commitment to an originalist interpretation of the Constitution would provide crminal defendants more rights than they have under modern jurisprudence. 

Eleventh Circuit panel finds Excessive Fines Clause applies to FBAR penalties

A helpful reader made sure I did not miss a lengthy new ruling from the Eleventh Circuit late last week in US v. Schwarzbaum, No. 22-14058 (11th Cir. Aug. 30, 2024) (available here).  Here are excerpts from the start of the 50+ page opinion:

Isac Schwarzbaum is a wealthy naturalized citizen of the United States.  He was born in Germany and holds significant wealth in numerous bank accounts in Switzerland and Costa Rica.  The U.S. tax regime required Schwarzbaum to report any foreign bank accounts to the Internal Revenue Service (the “IRS”) using a form known as the FBAR.  Although Schwarzbaum had read the FBAR filing instructions and engaged accountants to assist with his filings, he failed to report his foreign bank accounts to the IRS for years 2007–2009....

This case presents essentially two categories of questions.  The first set are procedural questions asking whether the district court can enforce the IRS’s recalculated penalties.  These questions are easily answered: (1) the United States, as plaintiff in a civil case, has the discretion to seek a lower penalty amount than the IRS assessed; (2) the Eleventh Circuit in Schwarzbaum I already disposed of and rejected Schwarzbaum’s statute-of-limitations argument; and (3) the district court did not err by retaining jurisdiction during a remand to the IRS that was, in essence, an interlocutory order.

More difficult is the fundamental question of whether FBAR penalties are fines within the meaning of the Eighth Amendment’s Excessive Fines Clause.  This is a matter of first impression for this Court.  The only other circuit court to have addressed the question, the First Circuit, recently held that the Eighth Amendment’s Excessive Fines Clause does not apply to FBAR penalties.

After careful consideration of the historical development of the Excessive Fines Clause and the FBAR’s text, structure, and history, we decline to follow the First Circuit.  Rather, we hold that FBAR penalties are in substantial measure punitive in nature.  Therefore, under controlling Supreme Court precedent, they are subject to review under the Eighth Amendment’s Excessive Fines Clause.  And in this case, examining the penalties assessed against Schwarzbaum account by account as we must, we identify $100,000 in penalties levied against one account in each of the years 2007–2009, for a total of $300,000, that are grossly disproportionate to the offense of concealing that account, and are therefore in violation of the Excessive Fines Clause.  We also hold, however, that the other penalties levied against the remaining accounts did not violate the Excessive Fines Clause because the penalties assessed against them were not grossly disproportionate to Schwarzbaum’s willful concealment of tens of millions of dollars in overseas accounts.

"Red Juries & Blue Juries"

The title of this post is the title of this new article authored by Richard Lorren Jolly available via SSRN. Here is its abstract:

The United States is a democracy divided.  Perhaps not since the Civil War have Americans been so deeply and bitterly at odds with one another.  This polarization stretches beyond mere policy disagreements and has become a type of identity that studies show is for many of greater importance than race, gender, and religious faith.  The result of this division has been a loss of confidence across the nation’s institutions, with potentially dire implications.  This Article is the first to examine the jury as an institution in light of partisan hyperpolarization.  It reviews the history and underlying purposes of the jury as a democratic body, stressing that political biases are an inherent — and at times desirable — part of the institution.  But, in drawing on extensive empirical socio-psychological scholarship, it demonstrates that today’s polarization is so extreme that fresh approaches are necessary.  In order to ensure procedural and substantive legitimacy, courts must be diligent in seeking partisan representation in venires and policing partisan partiality among jurors in all cases, not just those that are explicitly political.  Critically, it concludes that potential jurors should not be excluded solely on the basis of political affiliation or past votes cast.  The jury as an institution demands the voices of many in order to fulfill its role as the democratic bench of the judiciary.

"Opening the Virtual Window: How On-line Processes Could Increase Access to Justice in the Criminal Legal System"

The title of this post is the title of this recent paper authored by Amy Schmitz and Cynthia Alkon availabke via SSRN. Here is its abstract:

This article explores the potential of technology to improve access to justice (A2J) in criminal courts, specifically for nonviolent misdemeanor cases.  Despite a push for innovation in courts, criminal courts have been slow to embrace change and technological innovation due to factors like constitutional constraints and funding limitations.  This article argues that criminal courts need "virtual windows" alongside traditional "brick and mortar doors" to enhance A2J.  It proposes a problem-solving approach focusing on misdemeanor cases, a high-volume category where technology can have a significant impact.  The paper highlights the importance of ensuring defendants make "knowing and intelligent" pleas despite the often-real consequences of misdemeanor convictions.  The analysis also proposes a "green light, yellow light, red light" framework to categorize technologies based on their potential to improve A2J vs. the dangers they pose for defendants.  Notably, the article acknowledges the digital divide but argues that the increasing prevalence of mobile devices and internet access necessitates exploring technological solutions for lowering barriers to justice.  The paper concludes by calling for the adoption of "green light" technologies to improve A2J in misdemeanor cases, while acknowledging the need for thoughtful implementation to avoid unintended consequences. It also suggests further research with respect to “yellow light” ideas that may be worth further exploration with an aim toward furthering fairness and A2J.