Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

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

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

Notable new accounting of parole practices in South Carolina

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

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

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

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

"Congress Must Abolish Acquitted Conduct Sentencing"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Regressive White-Collar Crime"

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

"Padilla's Broken Promise: Pennsylvania Case Study"

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

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

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

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

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

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

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

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

Notable new accounting of parole practices in Virginia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Trial Ambivalence"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Victims as Fact-Finders"

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

This article critiques the common practice of excluding crime victims from serving as jurors in criminal cases.  Although systematic data on the voir dire process are hard to come by, both case research and empirical evidence suggest that judges routinely permit questioning of potential jurors regarding their victimization status, and that high percentages of both judges and attorneys consider victimization status a proper basis for exclusion.

The practice of victim-exclusion causes serious harms.  Excluding victims undermines the jury’s legitimacy as an institution and sends corrosive social messages regarding the status of victims in our society.  Nor are these harms offset by any increase in accuracy we might obtain by avoiding supposedly biased jurors.  Rather, victims’ unfortunate experiences can sharpen their ability to delineate true from false accusations.  Finally, there is no sound justification for assuming that victims’ degree of empathy for other victims is improper, relative to people who have not been victimized. Instead, victims’ participation should offset the troubling reluctance of people without such experiences to credit victims’ testimony and hold abusers to account.

Sentencing Project releases new report on "The Second Look Movement"

The Sentencing Project today released this new report fully titled "The Second Look Movement: A Review of the Nation’s Sentence Review Laws."  Here is the start of its executive summary:

Today, there are nearly two million people in American prisons and jails -- a 500% increase over the last 50 years. In 2020, over 200,000 people in U.S. prisons were serving life sentences -- more people than were in prison with any sentence in 1970.  Nearly one-third of people serving life sentences are 55 or older, amounting to over 60,000 people. People of color, particularly Black Americans, are represented at a higher rate among those serving lengthy and extreme sentences than among the total prison population.

Harsh sentencing policies, such as lengthy mandatory minimum sentences, have produced an aging prison population in the United States.  But research has established that lengthy sentences do not have a significant deterrent effect on crime and divert resources from effective public safety programs. Most criminal careers are under 10 years, and as people age, they usually desist from crime.  Existing parole systems are ineffective at curtailing excessive sentences in most states, due to their highly discretionary nature, lack of due process and oversight, and lack of objective consideration standards.  Consequently, legislators and the courts are looking to judicial review as a more effective means to reconsider an incarcerated person’s sentence in order to assess their fitness to reenter society.  A judicial review mechanism also provides the opportunity to evaluate whether sentences imposed decades ago remain just under current sentencing policies and public sentiment.

Legislation authorizing judges to review sentences after a person has served a lengthy period of time has been referred to as a second-look law and more colloquially as “sentence review.”

This report presents the evolution of the second look movement, which started with ensuring compliance with the U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) on the constitutionality of juvenile life without parole (“JLWOP”) sentences. This reform has more recently expanded to other types of sentences and populations, such as other excessive sentences imposed on youth, and emerging adults sentenced to life without parole (“LWOP”).  Currently, legislatures in 12 states, the District of Columbia, and the federal government have enacted a second look judicial review beyond opportunities provided to those with JLWOP sentences, and courts in at least 15 states determined that other lengthy sentences such as LWOP or term-of-years sentences were unconstitutional under Graham or Miller.

A (timely?) round up of some commentary on Culley v Marshall

Last Thursday, as noted in this post, the US Supreme Court in Culley v. Marshall rejected certain challenges to Alabama's civil forfeiture proceedings, holding that the "Constitution requires a timely forfeiture hearing; the Constitution does not also require a separate preliminary hearing."  Though a notable concurrence by Justice Gorsuch (joined by Justice Thomas) and a notable dissent by Justice Sotomayor (joined by Justices Kagan and Jackson) raised a bunch of notable policy concerns with civil forfeiture practices, I find the Court's opinon generally sound.  And I figured I would roung up a few commentaries on the Court's work with a range of views:

From Adam's Legal Newsletter, "In praise of robotic judging: The Supreme Court mindlessly and correctly decides Culley v. Marshall"

From Crime and Consequences, "Forfeitures: Govt. Win in SCOTUS with a Warning"

From The Federalist Society, "An Observation About Culley v. Marshall"

From Law Dork, "Civil asset forfeiture is on notice — but came out unscathed at SCOTUS for now"

From the Volokh Conspiracy, "Supreme Court Issues Flawed Ruling in Asset Forfeiture Case"

As some of these commentaries note, the separate opinions in Culley seem to signal there are at least five Justices prepared to take up other cases, in the words of Justice Gorsuch, to explore whether "contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process."  But I was struck that the fact of the cases from Alabama before SCOTUS this time included what seemed to be significant procedural failings from the petitioners; as the Court's opinion stressed, "Culley and Sutton do not challenge the timeliness of their forfeiture hearings."   When persons do not make good use of the state processes provided, it is always going to be hard to thereafter prevail on claims that these processes were not "due."

Notable dissent from denial of cert in Texas capital case concerning jury selection process

The Supreme Court this morning issued yet another order list which did not grant review in any cases.  But the list is conclude with a notable six-page dissent from the denial of cert authored by Justice Jackson and joined by Justice Sotomayor in a capital case, Sandoval v. Texas.  Here is how the dissent gets started:

Criminal defendants have a “fundamental righ[t]” “to personal presence at all critical stages of the trial.”  Rushen v. Spain, 464 U.S. 114, 117 (1983) (per curiam).  We have long held that voir dire — the moment that “represents jurors’ first introduction” to the facts of a case — is one such stage.  Gomez v. United States, 490 U.S. 858, 873–874 (1989).  In this capital case, however, the Texas Court of Criminal Appeals (TCCA) determined that a defendant had no due process right to attend “special venire” proceedings held prior to voir dire, during which a judge preevaluated potential jurors who were summonsed specifically for that case and given information about the defendant and the allegations against him.  The TCCA’s ruling raises a significant and certworthy question about whether criminal defendants have a due process right to be present in such circumstances.  In my view, the answer is yes, and this Court should have granted the petition for certiorari to furnish that important holding.

Should prosecutors be seeking waivers of all Fourth Amendment rights "for as long as 20 years" in plea deals?

The question in the title of this post is prompted by this notable new Bolts article wih this full headline: "'An Impossible Choice': Virginians Asked to Waive Constitutional Rights to Get a Plea Deal; Governor Glenn Youngkin vetoed a bill that would have barred prosecutors from making defendants waive protections against unreasonable police searches as a condition of pleas." Here are excerpts, with a little emphasis added in spots:

For Virginians facing criminal convictions with plea deals on the table, the unalienable constitutional rights they typically enjoy suddenly become negotiable. Under state law, prosecutors can ask people to sign away their Fourth Amendment protections against unreasonable search and seizure in exchange for reduced charges or sentencing. Black Virginians are much more likely than their white counterparts to get plea deals that waive these rights, which can open people up to random and invasive police searches long after they’ve resolved their cases.

In the capital city of Richmond, 96 percent of people who agreed to waive their Fourth Amendment rights in 2020 were people of color, data obtained by Bolts show. The city’s population was 45 percent Black and eight percent Hispanic. That same year in Lynchburg, Virginia, the second largest city, Black people accounted for 78 percent of all plea waivers signed, while they only made up 28 percent of the population.

The practice, known as a Fourth Amendment waiver, permits police to search a person, their home, or vehicle for a specified number of years after a conviction, even if they’ve completed their sentence of incarceration or parole, and regardless of proof they committed a crime.  People living under the waiver cannot challenge the legality of anything police find during a search.  Lengths of the waivers can stretch long beyond probationary periods — prosecutors have ordered some people to waive their Fourth Amendment rights for as long as 20 years, according to data obtained by Virginia advocacy group Justice Forward through public records requests and shared with Bolts.

Prosecutors say the waivers improve public safety. Colette McEachin, the commonwealth attorney for the city of Richmond since 2019, told Bolts the waivers are “very effective” in resolving cases and put people “on notice” once they’re released from incarceration. She also said the waivers prevent people from reacting violently to otherwise unlawful police searches. “They are aware that they’ve given up that right, because they had to sign an agreement that says that. Hopefully there will not be a dangerous situation where they are upset that law enforcement is searching them.”...

Across the country, roughly 95 percent of cases in state courts are resolved through plea bargains.  Prosecutors in some Virginia counties make the waiver a mandatory condition of a plea bargain, and people who choose not to accept them face the threat of a longer sentence after a trial.... Prosecutors can ask people to waive protections such as the right to a jury trial, the right to see evidence against them, or the right to erase their record later as a condition of a plea deal. Fourth Amendment waivers also happen across the U.S., in states including California, Georgia, and Idaho.

Virginia was slated to abolish the practice earlier this year, when legislators passed a bill along party lines that would have prohibited plea deals and court orders that “waive, release, or extinguish” defendants’ Fourth Amendment rights.  State Senator Saddam Azlan Salim, a Democrat who has backed criminal justice reform legislation in the past, was the sponsor. Supporters of the legislation cited concerns about prosecutors disproportionately leveraging the waivers against people of color.  Governor Glenn Youngkin, however, killed the legislation in March, vetoing it along with 21 other criminal justice-related bills, stating they “undermine public safety.”...

Typically, police must have a reasonable suspicion that someone committed a crime to stop and search them.  But once a person signs away their Fourth Amendment rights, police are allowed to stop them at random. There’s no way to track the full scope of how often police stop people with Fourth Amendment waivers because the searches typically aren’t logged unless police find something.  While Virginians on supervised release already agree to allow probation officers to randomly search their homes and vehicles, the Fourth Amendment waivers take these searches to the extreme; the search privileges outlined under the waivers go beyond what probation officers may search....

Ashley Shapiro, a public defender in Richmond who says her clients are often made to choose between accepting a waiver or a tougher sentence, argues that the waivers have provided a shield for police to illegally stop people. “Usually it’s that they stop people on the street for no reason and then get lucky that they happen to have a Fourth Amendment waiver,” she said.

The waivers are often wide-reaching.  A copy of a Richmond plea agreement including a waiver states a person waiving their rights “shall submit to search and seizure of his person, property, place of residence, vehicle and personal effects, at any time of day or night by any law enforcement officer with or without a search warrant, warrant of arrest or reasonable cause for a period of 3 years from the date of his release from active incarceration.”...

McEachin, the Richmond commonwealth attorney, said she looks at the facts of each case before deciding whether to ask for a waiver as part of a plea deal. In drug and gun cases, she said, asking a person to give up their Fourth Amendment protections is particularly important. “Those are the individuals who we want to be able to search in the future, if you’ve developed information that they have resumed criminal behavior,” she said.

When asked about the data showing that roughly 96 out of every 100 people with waivers in Richmond are people of color, McEachin insisted her office’s use of them is not racially discriminatory. “I think that probably most of the people who have been charged are African American, or brown or Latino,” she conceded, but continued, “I think that everybody who’s an adult always has difficult choices, and this probably is a difficult choice. But it is a difficult choice that that person has arrived at through their own actions.”

Use of the waivers often comes down to the discretion of individual prosecutors, and it varies across Virginia. Vikram Kapil, the head public defender for the southern counties of Halifax, Mecklenburg, and Lunenburg, said that only prosecutors in Lunenburg County try to include them in plea deals, especially for drug offenses. “We’re pushing back on it,” he said. “We generally say, ‘No, you shouldn’t do this.’ It’s tough telling someone who’s sitting in jail who isn’t able to go see their family and see their loved ones.”...

There was little opposition to the bill to abolish the waivers. The powerful Virginia Association of Commonwealth’s Attorneys was the only organization to come out against the legislation. “Fourth amendment waivers are a tool prosecutors may use for a few reasons, including for the benefit of the defendant and public safety,” Amanda Howie, administrator of the association, wrote in an email to Bolts.

Regularly readers likely know I am not a big fan of prosecutors using plea deals to secure broad waivers of future rights, though I usually focus my ire on federal efforts to demand waivers of rights to future appeals or other means to seek to block individuals' rights to access court reviews of prison sentences.  But broad waivers concerning all future Fourth Amendment rights, especially when they last beyond the terms of any formal sentence, strike me as the first step toward even more extreme efforts by government agents to insulate government power from any real accountability or scrutiny.  I wonder if prosecutors in Virgninia or elsewhere might soon just ask for blanket waivers of all constitutional and statutory rights.  Maybe we could just call them somethng like serfdom waivers, although I believe even serfs had some protected rights.

"The Blackstone Ratio, Modified"

The title of this post is the title of this new paper auhtored by Murat Mungan now available via SSRN. Here is its abstract:

In his discussion of evidentiary policies, Blackstone famously noted that "it is better that ten guilty persons escape than that one innocent suffer" (Blackstone 1769). The conventional wisdom among lawyers, judges as well as academics holds that accepting this statement as a maxim necessitates the adoption of pro-defendant evidentiary rules. It is also commonly believed that costs associated with false convictions being greater than failures to punish offenders due to the presence of punishment costs provides a utilitarian rationale for Blackstonian principles. After formalizing Blackstonian ratios (either as marginal rates of substitution or, alternatively, as the ratio between quantities of errors), I show these conventional views are incorrect. I then consider a simple modification of the Blackstone ratio which would make it more consistent with commonly held views about its implications and justifications.

Trigger warning for lawyers: there is a lot of math in this short paper.

Split Supreme Court limits the extent of hearings required in civil forfeiture proceedings

The Supreme Court this moring issued a series of opinion in Culley v. Marshall, No. 22-585, concerning the process that is due in civil forfeiture proceedings.   This Culley ruling limits, by a 6-3 vote along the usual ideological lines, what is constitutionally required.  Justice Kavanaugh authored the opinion for the Court, which is relatively short and starts this way:

When police seize and then seek civil forfeiture of a car that was used to commit a drug offense, the Constitutionequires a timely forfeiture hearing. The question here is whether the Constitution also requires a separate preliminary hearing to determine whether the police may retain the car pending the forfeiture hearing. This Court’s precedents establish that the answer is no: The Constitution requires a timely forfeiture hearing; the Constitution does not also require a separate preliminary hearing.

Justice Gorsuch, joined by Justice Thomas, authored an extended concurrence that starts this way:

I agree with the Court that, at a minimum, the Due Process Clause requires a prompt hearing in civil forfeiture cases. Ante, at 5.  I agree that no legal authority presented to us indicates a prompt hearing must necessarily take the form Ms. Culley and Ms. Sutton suppose. Ante, at 6. I agree, too, that Mathews v. Eldridge, 424 U. S. 319 (1976), does not teach otherwise.  Ante, at 9.  Under its terms, judges balance “the private and governmental interests at stake,” Mathews, 424 U. S., at 340, to determine “what procedures the government must observe” when it seeks to withhold “benefits” “such as welfare or Social Security,” Nelson v. Colorado, 581 U. S. 128, 141 (2017) (ALITO, J., concurring in judgment).  That test does not control — and we do not afford any particular solicitude to “governmental interests” — in cases like this one where the government seeks to deprive an individual of her private property.  But if all that leads me to join today’s decision, I also agree with the dissent that this case leaves many larger questions unresolved about whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process.  I write separately to highlight some of them.

And Justice Sotomayor, joined by Justices Kagan and Jackson, authored an extended dissent that starts this way:

A police officer can seize your car if he claims it is connected to a crime committed by someone else. The police department can then keep the car for months or even years until the State ultimately seeks ownership of it through civil forfeiture. In most States, the resulting proceeds from the car’s sale go to the police department’s budget. Petitioners claim that the Due Process Clause requires a prompt, post-seizure opportunity for innocent car owners to argue to a judge why they should retain their cars pending that final forfeiture determination. When an officer has a financial incentive to hold onto a car and an owner pleads innocence, they argue, a retention hearing at least ensures that the officer has probable cause to connect the owner and the car to a crime.

Today, the Court holds that the Due Process Clause never requires that minimal safeguard. In doing so, it sweeps far more broadly than the narrow question presented and hamstrings lower courts from addressing myriad abuses of the civil forfeiture system. Because I would have decided only which due process test governs whether a retention hearing is required and left it to the lower courts to apply that test to different civil forfeiture schemes, I respectfully dissent.

A faculty meeting and other commitments my prevent me from having all the time I need to consume and comment on these opinions.  But this looks quite interesting and I hope to be able to share some thoughts before too long.

Split Oklahoma Court of Criminal Appeals grants state's request to add an extra month between scheduled executions

As reported in this local article, the "Oklahoma Court of Criminal Appeals has decided future executions will be set 90 days apart 'unless circumstances dictate modification'."  Here is more on an interesting ruling in response to an interesting request:

Oklahoma Attorney General Gentner Drummond had asked for more time to reduce the stress on the volunteer execution teams. He was joined in the request by Steven Harpe, the executive director of the Department of Corrections. "The present pace of executions, every 60 days, is too onerous and not sustainable," Harpe said.

The decision on 90-day intervals was announced Tuesday. It was not unanimous. Two of the five judges called for executions to remain at 60 days apart.  "Individuals in many professions face demanding and arduous duties as part of their job requirements," Judge Gary Lumpkin wrote in opposing more time. "Personnel in our military continuously face life and death situations but they step up each day and do their duty."

All five judges agreed, though, that executions will be set one at a time from now on instead of in phases. The state has a backlog because of a hiatus on lethal injections that lasted almost seven years. A dozen have been carried out since they resumed in 2021 at the Oklahoma State Penitentiary in McAlester. The latest was April 4.

Drummond and Harpe in January asked the court to go to 90-day intervals once the second phase of executions is completed in June.... Drummond last year called for a change to 60-day intervals to reduce the stress on staff and give more time for training. The Court of Criminal Appeals agreed, resetting seven executions.

The court acknowledged Tuesday that scheduling executions in phases has not worked.  Judges told the attorney general to timely notify them each time an inmate is executed, gets a stay or has a stay lifted so the next execution can be set.

Lumpkin on Tuesday pointed out the Department of Corrections carried out 18 executions in 2001, seven in 2002 and 14 in 2003. "It is time to realize the victims and their families must be remembered and the law established by the Oklahoma Legislature followed," he wrote. "As shown in 2001-2003 by the actions of DOC employees, they can step up to meet the challenges placed before them when proper leadership is provided."

UPDATE: A helpful reader helped me find my way to this report on the ruling that includes the full order from the Oklahoma Court of Criminal Appeals in In re The Setting of Execution Dates.

Notable pending cert petition asks Justices to resolve split over reach of appeal waivers in a notable setting

I recently noticed that an intriguing and distinctive federal case that I heard about some months ago was flagged here as a "Petition of the Week" over at  SCOTUSblog.  I recommend the full SCOTUSblog post for the case details, but here is the start and close of that post:

The vast majority of criminal cases — 98% of those in federal court, and 95% of those in state court — are resolved through plea bargains.  As a condition for pursuing a lesser conviction or shorter sentence, prosecutors may also require someone who pleads guilty to a crime to sign away their right to appeal.  This week, we highlight petitions that ask the court to consider, among other things, whether a plea deal with an explicit waiver of the right to appeal bars defendants from later asking a court to vacate their conviction if the conduct of which they were accused, it turns out, was not a crime at all....

In Khadr v. United States, Khadr asks the justices to grant review and reverse the D.C. Circuit’s ruling.  He argues that the courts of appeals are divided over whether criminal defendants can  ever waive their right to argue that their conviction was legally invalid by pleading guilty. Just as “[p]lea agreements based upon non-criminal conduct cannot” support a conviction, Khadr writes, nor do general waivers of appeal “bar appellants from seeking review of their convictions for conduct that is not criminal.”

The full cert petition in Khadr is available at this link, and here is how it presents the question that the Justices will consider at a conference later this month:

Plea agreements often include a general waiver of the right to appeal. Circuits are divided over whether the inclusion of such a term bars a defendant from bringing a direct appeal of a conviction, when a subsequent controlling judicial decision has held that the conduct to which the defendant pled guilty was not a crime.  The Second, Third, and Fourth Circuits hold that an appeal may proceed.  In the decision below, a divided panel of the D.C. Circuit joined the Seventh and Ninth Circuits in holding that it may not.

Does a plea agreement that includes a general appellate waiver foreclose a direct appeal when a defendant has pled guilty to conduct that was not criminal?

A little calm before the coming SCOTUS storms?

The Supreme Court has about 8 weeks to issue over 40 opinions in cases argued this Term if it is going to wrap its work before the start of July (as is its yearly custom).  That means we could and should expect about five rulings per week, on average, though I expect we will get fewer than that number through May and perhaps a lot more the last few weeks of June.   The Court has announces that this Thursday (May 9) will be an opinion day, and suspect we may be three or more opinions on that day.  

As the legal world awaits big rulings from SCOTUS in a variety of legal arenas, here I always forcus on the Court's criminal justice work.  In that space, I count nearly a dozen notable criminal cases still pending, some constitutional and some statutory.  Though a number of these could be blockbusters, there are at least three constitutional cases that I am especially eager to see the Court's opinions.  In these three cases, based in part on oral argument, I am already pretty sure which party is likely to prevail, but just how the opinions are written could still prove really interesting:  

US v. Rahimi, No. 22-915 [Arg: 11.7.2023]

Erlinger v. US, No. 23-370 [Arg: 3.27.2024]

City of Grants Pass, Oregon v. Johnson, No. 23-175 [Arg: 4.22.2024]

In all of these cases, dealing with the Second, Sixth and Eighth Amendments, respectively, just how the Court gets to its results could matter a whole lot.  In addition, in all these cases, I am also interested in how particular Justices vote and what certain Justices might have to say along the way.

I strongly doubt we will get any of these rulings before the last few weeks of June (though I could imagine Erlinger coming a bit earlier).  In the meantime, there are more than a few other criminal cases that could prove important and interesting.  Indeed, that Culley v. Marshall, No. 22-585 (argued October 30) and Brown v. US, No. 22-6389 (argued November 27) have not yet been resolved has me wondering if intriguing opinions are in the works.

Any thoughts on these cases or others yu may be watching for, dear readers?  

Reviewing legal complications for Jan 6 rioters convicted of federal charge SCOTUS might overturn

I have discussed briefly in some prior posts some of the legal intricacies that certain Jan 6 defendants could face if the Supreme Court in Fischer v. US were to reverse a key statutory charge brought by federal prosecutors or many cases.  Helpfully, Law360 has this new lengthy discussion of these issues under the headline "If High Court Upends Jan. 6 Conviction, What Happens Next?".  These issues are potentially so complicated, it is hard to map out or summarize all the particulars.  But this article provides an effective overview and gets started this way:

In the coming weeks, the U.S. Supreme Court will decide whether prosecutors overstepped by using a felony obstruction charge against a rioter who stormed the U.S. Capitol building on Jan. 6, 2021.  In oral arguments in April, a majority of justices seemed poised to side with the defendant, a man named Joseph Fischer, who shouted, "Charge!" as he ran into the Capitol building and then assaulted a police officer.

If Fischer prevails, results will likely be mixed for the more than 350 other defendants charged under the same statute for their role in the riot on Jan. 6, in which a mob of former President Donald Trump's supporters seized the Capitol and interrupted the electoral ballot count that would eventually declare Joe Biden the winner of the 2020 presidential election.  For more than 120 defendants who have already been sentenced under the statute, challenging their convictions would depend on whether they've preserved their right to appeal, whether they've already used their shot at vacating a sentence and what other charges would remain.

It's not unusual for the high court to find prosecutors were overbroad in their interpretation of a criminal statute — in recent years, justices have limited the applicability of honest services fraud, aggravated identity theft and computer fraud statutes.  Nor is it unusual for people who have been convicted under an outdated interpretation of the law to face procedural hurdles in getting resentenced, criminal defense attorneys say. 

Time bars on criminal appeals and limits on post-conviction motions point to the federal courts' "very, very strong preference for finality," according to Erica Zunkel, a former federal public defender and a law professor who teaches in the University of Chicago Law School's Criminal and Juvenile Justice Clinic.  "There are different rules and regulations for how you can challenge convictions, how long you have to appeal, what issues you can raise and not raise," she said. "It wouldn't be novel for the Supreme Court to say the interpretation of this statute is overbroad. Truly, this is what happens day in and day out in the criminal system. And then the question is, what to do when the Supreme Court has changed the law."

Notable review of 30 murders still on death row in Alabama after judges overrode jury life recommendations

AL.com has this interesting and detailed review of every death row defendant in Alabama who was sent to the row by a judge after a jury did not recommend a death sentence.   The article is headlined, "These 30 Alabama Death Row inmates are waiting to die because judges overruled juries," and here is how it sets up its discussion of these cases:

Despite a 2017 Alabama law banning judges from sentencing defendants to death when juries recommend life in prison, 30 inmates remain sentenced under those circumstances on death row.

A bill that would require courts to resentence people sentenced to death by judicial override was recently killed by a legislative committee, leaving those inmates to face death sentences juries did not want.

Why did the judges in these cases decide to overrule the juries? A look at the inmates’ appeals offers a glimpse into the judges’ thought processes.

In one case, the judge theorized the jury was “probably emotionally and mentally worn out” after the defendant’s family asked them to spare their relative’s life.

In others, judges said jury “outbursts” showed they were incapable of rendering a death sentence recommendation. Others said the heinousness of the crimes was enough to warrant execution.

"A World Without Federal Sentencing Guidelines"

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

Most participants and observers of the criminal-justice system perceive the Federal Sentencing Guidelines as excessively harsh.  A foundational question has persisted since the creation of the Guidelines: is a guideline-based regime actually preferable, or should we embrace complete judicial discretion in sentencing?  For decades, analysts have resorted to hypothetical cases to explore this issue.  But a little-known world exists in which real federal sentences are imposed without any reference to sentencing guidelines: U.S. Sentencing Guideline §2X5.1.  This Article is the first to compare actual sentences imposed with and without guidelines for the same offenses and same types of offenders.

The analysis reveals that judges tend to impose harsher sentences in the world without sentencing guidelines. Variability is also more pronounced in sentences without guidelines: after a conviction for child endangerment, some parents received two years in prison and others received fifteen (even after adjusting for severity).  Two Black men convicted of a fourth and fifth non-accident DUI received ten years in prison while other offenders received probation (the median sentence is around twelve months’ imprisonment).  Recent Supreme Court cases affecting tribal jurisdiction, and the January 6, 2021, “Capitol Breach” cases, have led to an explosion in the number of these cases in many districts.

This Article argues that sentencing within a guideline framework, or within a data-based framework when guidelines are inapplicable, provides more certainty and minimizes unwarranted disparities.  The conclusions offer critical insights to states or other systems that do not currently have sentencing guidelines or do not meaningfully collect sentencing data.  Finally, this Article offers recommendations to courts, the United States Probation Office, and the Sentencing Commission to help advance a more just and efficient sentencing system.

Notable new compassionate release ruling finding home confinement difficulties justified sentence reduction

I received from a colleague an interesting new federal court order granting a § 3582 sentence reduction motion based in part on the difficulties associated with extended home confinement. The full ruling in US v. Reynods, No. CR-12-84-GF-BMM-6 (D. Mont. April 30, 2024), is available for download below.  Here is one key passage from the ruling:

The Court finds that extraordinary and compelling reasons exist to warrant a reduction of Reynolds’s sentence.  18 U.S.C. § 3582(c)(1)(A)(i). Reynolds’s age, medical conditions, home confinement status, and long sentence would not rise to the level of extraordinary and compelling when viewed individually.  These factors appear, however, to rise to that level when viewed together.  Reynolds’s advanced age increases her need for consistent, adequate medical care.  Reynolds’s status on home confinement makes it more difficult to schedule medical appointments and impossible to obtain Medicare or supplemental insurance.  Reynolds’s advanced age also makes commuting more difficult.  Reynolds’s status on home confinement prevents, however, Reynolds from obtaining housing closer to her work, UAs, and counselor.  The Court finds that these factors interact with each other to create extraordinary and compelling reasons to reduce Reynolds’s sentence.

Download Reynolds Order Redacted Filed (002)

A long accounting of Justice Thomas' long disaffinity for his key vote in Almendarez-Torres

In this post a couple months ago, I asked "Might Justice Thomas advocate for entirely eliminating the Apprendi's prior-conviction exception in Erlinger?".  That post discussed briefly, on the eve of a SCOTUS argument about the reach of jury trial rights, that Justice Thomas has argued since his concurrence in Apprendi that an originalist understanding of the Sixth Amendment means even "the fact of a prior conviction is an element under a recidivism statute."  But that concurrence came only a few years after Justice Thomas had been a key vote in Almendarez-Torres to allow prior conviction facts to be treated not as elements for constitutional purposes.

Law360 has this new lengthy commentary covering this ground much more thoroughly under the headline "Thomas' Long Quest To Undo A 'Grave Constitutional Error'."  This long essay merits a full read, and here is how it starts and finishes:

A quarter-century after Justice Clarence Thomas cast a pivotal vote against jury trial rights and rapidly regretted it, his relentless campaign to undo the controversial precedent is suddenly center stage with a serious shot at succeeding, as judges and lawyers increasingly deem the decision dubious and the U.S. Supreme Court chips away at its edges....

It's hard to say just how close Justice Thomas is to convincing four of his colleagues to overrule Almendarez-Torres. Justices Barrett and Gorsuch have appeared open to the idea, and Justice Gorsuch was joined by Justice Sotomayor in the Wooden concurrence, which spotlighted jury trial rights for "every fact essential to an individual's punishment."

During the Erlinger arguments, Justice Ketanji Brown Jackson asked, "If there is a history and tradition of fact-finding by the jury with respect to recidivism ... what is the basis, then, for the Almendarez-Torres carveout?"

However, Justice Samuel Alito appears unlikely to provide a helping hand, given that he has railed against the high court's 2000 decision in Apprendi, which said juries must evaluate facts that augment maximum penalties, except for the fact of a prior conviction. "Although Apprendi purported to rely on the original understanding of the jury trial right, there are strong reasons to question the court's analysis on that point," Justice Alito wrote in a solitary dissent when the high court decided Alleyne v. U.S. in 2013.

That skepticism apparently hasn't waned; at the Erlinger arguments, Justice Alito noted that "Almendarez-Torres is ... an established precedent of the court," and asked, "If we were to reexamine that, would it then be appropriate to reexamine the entire question that was opened up in Apprendi?"

So while Almendarez-Torres might be teetering, it could ultimately cheat death, as it has done for decades.  There's very little doubt, though, that as long as the precedent endures with Justice Thomas on the high court, he'll continue the campaign he commenced 24 years ago.

It's a campaign that's now familiar to followers of the Supreme Court's criminal law docket, including [Eric] Feigin, who, after finishing his opening statement at the Erlinger arguments, didn't seem very surprised by the first question from the bench.

"Wouldn't it be cleaner, though, to just simply overrule Almendarez-Torres?" Justice Thomas asked. After a brief pause, laughter filled the courtroom as Feigin replied, "I had a suspicion you might ask me that question, Justice Thomas."

"The Relevance of State Misconduct for Mitigating Individual Punishment"

The title of this post is the title of this book chapter authored by Thom Brooks now available via SSRN. Here is its abstract:

This chapter is focused on the possible relevance of state misconduct for mitigating individual sentences.  I argued that state misconduct can justify mitigation where a sufficient connection is made between the state misconduct and the offender in one of two ways.  First, this may take the form of systematic discrimination whether or not intentional where offenders are subjected to overly harsh punishments as a result of bias against their protected characteristics, like race.  Secondly, this may take the form of deliberate bad faith that may not be systematically applied, but no less problematic.

It is argued that state misconduct matters for mitigation as a form of provocation that impacts culpability.  This might be understood differently by different penal theories, whether desert-based or consequentialist.  Either way, this view of mitigation is coherent with a variety of very different penal theories even if each might justify mitigation in different ways.

This view rests on an important assumption that it applies to states that can and do acknowledge when they, as a state, have engaged in state misconduct.  State misconduct happens and too often.  But no view of mitigation is possible where it is impossible for the state to recognise its shortcomings.  And, where it is found, the state should be compelled to ensure such misconduct is addressed so it is no longer a factor.

Puzzling through the reach and application of the Eighth Amendment inspired by SCOTUS argument in Grants Pass case

I have listened to most of yesterday's Supreme Court oral argument in City of Grants Pass v. Johnson.  I share the basic sentiments reflected in the headlines of these press accounts of the SCOTUS argument:

From the New York Times, "Supreme Court Seems Poised to Uphold Local Bans on Homeless Encampments: A majority of the justices appeared skeptical of courts wading into the thorny policy questions around when local governments can punish people for sleeping and camping outdoors."

From NPR, "Supreme Court appears to side with an Oregon city's crackdown on homelessness"

From Vox, "The Supreme Court doesn’t seem eager to get involved with homelessness policy: Grants Pass v. Johnson is probably going to end badly for homeless people, but it’s not yet clear how broad the Court’s decision will be."

The subheadline of the Vox piece captures what I have been thinking about since listening to the Grants Pass argument.  It seems likely that there are at least six votes to reverse the Ninth Circuit's ruling based on the the Cruel and Unusual Punishment Clause of the Eighth Amendment.  But what will be the path for doing so? 

In this post a few weeks ago, I flagged commentary expressing concern that the Supreme Court might use the Grants Pass case as an opportunity to make a new and hard originalist turn in Eighth Amendment jurisprudence.  But I did not hear much during the oral argument to suggest that many Justices were eager to take up Eighth Amendment originalism as a means to resolve the case.  There surely could be some Eighth Amendment originalism in the Court's coming opinion, but I am now puzzling through other Eighth Amendment issues Grants Pass brings up that perhaps could provide other routes for the case's disposition.   Let me explain:

1. Civil versus criminal sanctions:  Justice Thomas, in the first questions of oral argument, asked the lawyer for the City of Grants Pass, "have we ever applied the Eighth Amendment to civil penalties?"  The answer given, which I believe is correct, was " Not the Cruel and Unusual Punishments Clause, no."  That answer was well phrased, because the Supreme Court has applied the Excessive Fines Clause of the Eighth Amendment to "civil" sanctions.   The courts below in this case held that the Fines Clause was implicated by the city's anti-camping ordinance AND that the ordinance was criminal becuase repeat violations could lead to jail time.   But person one technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue cannot be facially unconstitutional under the Cruel and Unusual Punishment Clause of the Eighth Amendment when it only imposes a (modest? waivable?) fine for a first infraction.

2. Facial versus as-applied challenges:  I have never fully understood all the nuances around facial versus as-applied constitutional challenges, in part because it always seemed that Eighth Amendment claims must function as an as-applied challenge upon criminal enforcement.  Put another way, I have always assumed someone needs to first be subject to actual criminal prosecution with punishment threatened to litigate a Cruel and Unusual Punishment claim.  (A thought experiment: Could a doctor worried about new state laws criminalizing abortion bring an Eighth Amendment class-action challenge before being subject to any prosecution and even before he has performed any abortions?)  Then again, the courts below in this case held that the threat of enforcement was sufficient for standing, and arguably the categorical limits on application of the death penalty and LWOP for juveniles operate as a kind of class-wide, facial ruling about Eighth Amendment limits on statutory punishments.  Still, another technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue cannot be facially challenged under the Cruel and Unusual Punishment Clause of the Eighth Amendment but only can be challenged in application on a case-by-case basis as it gets actually applied to different individuals.

3. Common-law defenses as constitutional defenses: The lawyer for the City of Grants Pass argued repeatedly that Oregon law recognizes a necessity defense which could be raised by homeless persons subject to the city's anti-camping ordinance.  Justice Gorsuch seemed particularly intrigued by this notion, but it is hard to sort through how this would doctrinally function as a matter of constitutional law.  Is just the availability of such a defense here, which is sure to be uncertain in application, enough to save the anti-camping ordinance from an otherwise winning Eighth Amendment claim?  Would such a ruling be tantamount to declaring that the Eighth Amendment makes a necessity defense sometimes constitutional required?  (Justice Gorush noted that it may make more sense to say a defense is required as a matter of due process, but he also recognized SCOTUS has rebuffed a due process claim regarding the insanity defense.)  Perhaps yet another technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue is constitutional unless and until it is clear homeless persons are unable to advance an effective necessity defense in any criminal prosecution.   

Though some of these issues arose during oral argument, it is not clear any will be a focal point for the Court's coming disposition.  Many Justices seemed eager to make sure, in the words of Justice Kavanaugh, that "the federal courts aren't micromanaging homeless policy."  But, because the Justices are the only ones who define Eighth Amendment law, I hope they can at least avoid having this challening case create even more puzzling Cruel and Unusual Punishment jurisprudence.

Rounding up (modest) press coverage of US Sentencing Commission's unanimous vote to limit use of acquitted conduct in guideline calculations

As reported here, last week the the US Sentencing Commission voted unanimous to promulgate a number of notable new guideline amendments, including most notably an amendment to preclude the use of acquitted conduct in guideline calculations.  (The promulgated amendments passed by the Commission are posted here).  Perhaps because acquitted conduct sentencing reform is something I consider symbolically meaningful (and overdue), I view this unanimous guideline amendment to be a pretty big deal.  But, perhaps unsurprisingly, the USSC's vote has garnered only modest press coverage to date.  Still, I figured it was worth a quick round-up:

From Bloomberg Law, "US Sentencing Commission Votes for Major Guideline Amendments"

From Law360, "Sentencing Commission Limits Acquitted Conduct Sentencing"

From Reason, "U.S. Sentencing Commission Restricts Federal Judges' Ability To Use Acquitted Conduct at Sentencing: The little-known but outrageous practice allowed judges to enhance defendants' sentences using conduct a jury acquitted them of.

From Reuters, "US panel prohibits judges from sentencing for 'acquitted conduct'"

Also, a Senator's press release:  "Durbin Applauds Sentencing Commission's Unanimous Vote To Prohibit Acquitted Conduct From Being Used In Sentencing Guidelines: The Announcement Comes After Durbin, Grassley Reintroduced Their Prohibiting Punishment Of Acquitted Conduct Act"

Sharp-eyed readers may recognize that the Reuters heading is a bit inaccurate becayse the USSC did not (and perhaps feels it cannot) entirely prohibit sentencing on the basis of acquitted conduct given applicable sentencing statutes.  Rather, the Commission voted unanimously to prohibit courts from considering acquitted conduct when calculating the applicable guidelines.  As noted in the press release from Senator Burbin's office, it may be still necessary for Congress to enact the Prohibiting Punishment Of Acquitted Conduct Act in order to completely preclude judges at sentencing from ever considering acquitted conduct.

Prior recent related post:

• US Sentencing Commission votes to promulgate guideline amendment to limit use of acquitted conduct in guideline calculations 

"Unpunishment Purposes"

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

Sentencing scholarship often begins by exploring the traditional purposes of punishment: deterrence, retribution, incapacitation, and rehabilitation.  However, little scholarship exists addressing how these four punishment purposes apply in the post-sentencing or resentencing context.  Further, abstract theories of sentencing can often seem sterile and disconnected from the realities of how violent, disproportionate, and dehumanizing the actual experience of incarceration is for many people, and they tend to downplay the impact of incarceration on the families and communities of those who are incarcerated.  Drawing on abolitionist principles centered around harm reduction, this Article reimagines the punishment purposes in a new way, with a decarcerative valence.

This Article attempts to reconceptualize the traditional purposes of punishment in order to meet the current historical moment, and it does so through an abolitionist lens.  For example, within the past decade, a number of state and federal retroactive relief mechanisms have allowed incarcerated people to petition courts for sentence reductions based on various legal theories.  But guidance provided to courts and other decisionmakers about how to exercise their discretionary decarceration authority is lacking.  Accordingly, this Article addresses head-on the need to develop a theory of resentencing and asks whether the four purposes of punishment require revision or augmentation to account for the sentence reduction context.

Further, this Article uses the federal second look context as a means to interrogate why blind adherence to the four punishment purposes has persisted despite their clear shortcomings.  In so doing, this Article seeks to shape second look advocacy and decision-making efforts, as well as the way in which sentencing is approached in the first instance, by both shifting away from the default of incarceration as punishment for crimes and utilizing a sentencing framework that looks at societal harm more expansively.

This Article argues that, by incorporating an abolition-based theory of harm prevention or reduction into the punishment purposes, judges may have more incentive to revisit old sentencing determinations and release more people from prison.  More than that, however, incorporating such a theory into a prospective sentencing may lead judges to rethink their reflexive reliance on the punishment purposes in the first instance, resulting in less punishment altogether.

"The Relative Severity of Criminal Sentences in the January 6, 2021, Capitol Breach Cases"

The title of this post is the title of this new article authored by Sam Merchant which now has an abstract available up on SSRN.  I typically will not link to an SSRN posting unless and until the full draft article is available for download.  But this article's findings seem especially timely and notable; so here is its abstract:

Many observers claim that judges are imposing disproportionately lenient sentences on January 6, 2021, “Capitol Breach” offenders.  Some have even suggested a racial or political motivation for lighter sentences.  Comparative data on these sentences and offenders, presented here for the first time, refute this narrative. Individuals convicted of felonies related to the Capitol Breach appear to actually receive longer sentences than individuals convicted of the same crimes outside of the Capitol Breach context.

But sentences in Capitol Breach cases may indeed be “lenient” for a deeper, more structural reason — the current Federal Sentencing Guidelines do not adequately account for the severity of the conduct that occurred on January 6, 2021.  There is a qualitative difference between federal offenses and the same offenses committed in the context of the “treason spectrum.”  English and American legal traditions have historically viewed treason, rebellion, and subversive activities as “the worst crimes of all” because they are crimes against all citizens and threaten the constitutional order.  Yet no sentencing enhancement addresses the increased severity of conduct involving offenses that are on the treason spectrum.

Recognizing the increased seriousness of other conduct, Congress and the Sentencing Commission have enacted an array of enhancements to punish, incapacitate, and deter offenders whose conduct involves a dangerous weapon, body armor, or even use of a fake website during an offense.  This Article proposes a new sentencing enhancement in the Federal Sentencing Guidelines that properly accounts for the relative severity of conduct involving offenses on the treason spectrum.  To reaffirm a commitment to democratic values, to deter future subversive conduct, and ensure that the legal system is equipped to respond to the severity of subversive conduct, policymakers and judges should send clear signal that subversive activities are indeed among “the worst crimes of all.”

UPDATE: It now appears that the full paper is available for download at this SSRN link.

Notable new commentary makes case for federal Safer Supervision Act

Alice Marie Johnson has this notable Fox News commentary discussion reentry reform. The full headline provides a preview: "I spent 20 years in prison for one mistake. I know the system is broken even when you get out. Getting out of prison is only the beginning of a new set of problems with probation." Here are snippets from the lengthy piece:

Federal supervision policies are supposed to help people successfully return to their communities from prison. Unfortunately, in many cases, they erect barriers to successful reintegration. The bipartisan Safer Supervision Act would break down those barriers, reduce recidivism and improve public safety....

Federal supervised release was originally meant to be applied only in cases where it was necessary for public safety. Unfortunately, it is now imposed in nearly every case.  About 110,000 individuals are under federal supervised release — a 200% increase from three decades ago.

As a result, case officers have become overburdened, often managing up to 100 cases at once.  With probation officers overstretched, they cannot devote adequate time or resources to managing those who pose higher public safety risks, and this "mismatch" can lead to recidivism.

Unnecessary supervision also comes with roadblocks that make it harder for low-risk people who have paid their debts to society to reintegrate into their communities.  In 2020, more people saw their supervised release revoked due to technical violations — such as failing to make a meeting with a probation officer or traveling without permission — than for committing new crimes....

The Safer Supervision Act, which has broad support from law enforcement, legal experts and criminal justice groups across the political spectrum, would tackle many of the issues that are causing the current system to fail.

First, instead of implementing one-size-fits-all supervision sentences for everyone exiting the justice system, the Safer Supervision Act would require courts to conduct individualized assessments to determine if supervision is necessary, and if so, what restrictions are needed to protect public safety or better support successful reentry.  This would ensure that the people who need the most support receive it while allowing people who are at lower risk of recidivism to fully stretch their freedom legs.  It would also prevent probation officers from becoming overburdened with irrelevant caseloads.

Another critical piece of the bill is that it creates incentives for maintaining good conduct and reintegrating successfully into society.  The legislation establishes a presumption of early termination once someone has served half of their supervision period, has shown good conduct and complied with supervision terms, and has been assessed as a low public safety risk.  This will encourage more people to take the steps needed to succeed, whether that involves undergoing substance use disorder treatment, pursuing more education or maintaining steady employment.

Other provisions in the bill also focus on rehabilitation.  For example, it would give courts the option to send people on supervised release who are found in possession of illicit substances to treatment and rehabilitation programs instead of requiring a mandatory revocation that often comes with prison time.  This would only apply in cases of simple possession, not possession with the intent to distribute.

Lastly, the bill calls for a thorough report on federal post-release supervision and reentry services to ensure taxpayer dollars are being used efficiently and responsibly.

Too many of our federal supervision rules are counterproductive.  Not only do they keep too many people who have served their time in prison and are not a threat to public safety from living full lives, but they overburden our law enforcement officers and make us less safe.  The Safer Supervision Act will help change that, giving deserving people a real second chance while ensuring public safety.

"Redeemable Fines: Overcoming the Crisis of Overincarceration"

The title of this post is the title of this new paper authored by Gideon Parchomovsky and Alex Stein now available via SSRN.  Here is its abstract:

In this Essay, we introduce a new mechanism uniquely designed to achieve rehabilitation of offenders and improve the criminal justice system: the redeemable fine.  A redeemable fine is a monetary penalty that will be returned to the offender — in installments or, in exceptional cases, in one payment — over a certain period so long as she or he commits no further crimes.  Unlike traditional fines, redeemable fines can be structured in a myriad of ways to provide individually tailored optimal rehabilitative incentives for offenders.  First, the installment period of the repayment can be short (several months) or long (several years), depending on the characteristics of the offense and the offender. Second, there is the frequency of the payments.  The payment intervals can be long, short, intermediate or variable.  The sentencing judge will be able to order that the repayments will be made annually, every six months, every single month or, in exceptional cases, in one installment on the successful completion of the rehabilitation.  As with traditional fines, the redeemable fine’s amount will correlate with the seriousness of the offender’s misdeed.  For these and other reasons, introduction of redeemable fines can dramatically reduce the rates and the costs of incarceration and render the criminal justice system fairer and more humane, while providing meaningful incentives for offenders not to commit further offenses.

US Sentencing Commission votes to promulgate guideline amendment to limit use of acquitted conduct in guideline calculations

At a public meeting this afternoon, the US Sentencing Commission voted to promulgate a number of notable new guideline amendments, including perhaps most notably an amendment to preclude the consideration of acquitted conduct in guideline calculations.  The Commission's vote on this acquitted conduct amendment appeared to be unanimous, but then there seemed to be some dissention about whether to conduct a data analysis and seek public comment on whether to make this acquitted conduct amendment retroactive.  The retroactivity analysis for the acquitted conduct amendment did get majority support, and I will be very interested to see what the USSC's data shows as to how many persons are currently imprisoned as a result of acquitted conduct guideline enhancements.

A lot more got done by the USSC at its public meeting this afternoon, and I hope to update this post with some of the official announcements from the Commission about its work later this afternoon.

UPDATE:  Here is the full text of this press release that the US Sentencing Commission just posted to its website under the heading "Commission Votes Unanimously to Pass Package of Reforms
Including Limit on Use of Acquitted Conduct in Sentencing Guidelines":

The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines. The Commission’s seven members also joined together to pass a range of additional reforms, including those that bring uniformity to sentencing for certain gun and financial crimes and provide a potential downward departure based on age. “The reforms passed today reflect a bipartisan commitment to creating a more effective and just sentencing system,” said Commission Chair Judge Carlton W. Reeves. Watch the public meeting.

“Not guilty means not guilty,” said Chair Reeves. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.” This reform comes amid robust debate on acquitted conduct from across the country.  Last year, several Supreme Court Justices called for the Commission to address acquitted conduct, while a bipartisan group of legislators in Congress introduced a bill limiting the use of acquitted conduct in sentencing.

In addition to limiting the use of acquitted conduct, the Commission revised its policy statement on age, permitting judges to downward depart based on age if appropriate in light of today’s richer understanding of the science and data surrounding youthful individuals, including recognition that cognitive changes lasting into the mid-20s affect individual behavior, culpability and the age-crime curve.  The Commission also moved commentary regarding the definition of “loss” to the body of the fraud, theft, and property destruction guideline to ensure courts uniformly calculate loss amounts.  And the Commission addressed a circuit conflict over how to properly punish crimes involving weapons with altered or obliterated serial numbers.

These and all other amendments passed by the Commission today will be posted here.  The Commission will deliver amendments to Congress by May 1, 2024.  If Congress does not act to disapprove the changes, they will go into effect on November 1, 2024.

SCOTUS rules unanimously that federal forfeiture errors as subject to harmless-error review

The Supreme Court handed down one opinion in a criminal case this morning in US v. McIntosh, No. 22–7386 (S.Ct. Apr. 17, 2024) (available here).  This case was argued just over six weeks ago, and anyone who listened to the oral argument would have predicted this shiny apple result.  Here is how the Court's opinion, authored by Justice Sotomayor, gets started:

In certain criminal cases, Congress has authorized the Government to seek forfeiture of a defendant’s ill-gotten gains as part of the defendant’s sentence.  Federal Rule of Criminal Procedure 32.2 sets forth specific procedures for imposing criminal forfeiture in such cases.  In particular, Rule 32.2(b)(2)(B) provides that, “[u]nless doing so is impractical,” a federal district court “must enter the preliminary order [of forfeiture] sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final as to the defendant.”

The question presented in this case is whether a district court that fails to comply with Rule 32.2(b)(2)(B)’s requirement to enter a preliminary order before sentencing is powerless to order forfeiture against the defendant.  In light of the Rule’s text and relevant precedents, this Court holds that the failure to enter a preliminary order does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review.

"Apprendi, Punishment, and a Retroactive Theory of Revocation"

The title of this post is the title of this student note in the March 2024 Yale Law Journal authored by Jaewon Chris Kim that I just came across. Here is its abstract:

In Apprendi v. New Jersey, the Supreme Court announced what is now a seminal rule of constitutional criminal procedure: any fact that increases the penalty for a crime beyond the prescribed statutory maximum cannot be found by a judge, but must be submitted to a jury and proved beyond a reasonable doubt.  The doctrine arising from Apprendi and its descendant cases had, until recently, been confined to the sentencing context.  But in 2019, the Court in United States v. Haymond considered a potential expansion of Apprendi to judicial revocations of federal supervised release.  The Court ultimately handed down a 4-1-4 decision with minimal precedential value, but since then, there has been a swell of scholarship discussing the applicability of the jury right to this new context.  Much of this discussion has centered around the questions of constitutional interpretation raised by Haymond, and whether a revocation proceeding is part of a “criminal prosecution” as specified by the text of the Sixth Amendment.

This Note argues for a different approach.  Revisiting the Apprendi cases and their contemporary scholarly treatment reveals that the doctrine was rooted not in novel methods of textual interpretation, but in fundamental principles of substantive criminal law: what constitutes “crime” and “punishment.”  Existing scholarship has not provided an answer to how these principles might apply to a function that takes place after sentencing and final judgment, like revocation of supervised release.  I therefore introduce a retroactive theory of revocation that rationalizes Apprendi’s definition of crime and punishment within this context.  Under this theory, revocation proceedings are unconstitutional not because they are directly covered by the Sixth Amendment right to a jury trial, but because they circumvent a person’s original jury trial by allowing them to be “punished” for a different “crime.”  This means that every revocation of supervised release violates Apprendi.  Moreover, the retroactive theory suggests that other forms of post-judgment penalties, like extensions of probation and criminal fees, can similarly run afoul of the Sixth Amendment’s protections. 

A couple of capital case dissents from denials of cert in latest SCOTUS order list

Though SCOTUS has a week full of criminal case oral arguments, it has been many months since the Justices granted cert in a criminal case.  Then again, it has been months since SCOTUS has granted cert in any case, and that trend did not change today with the release of this new order list.  But this latest order list did include a couple o dissents from the denial of cert in two capital cases.

In Michaels v. Davis, No. 23–5038, a capital case from California, Justice Jackson dissented from the denial of cert to complain about the harmfulness of the admission of a confession that was illegally obtained.  Here is a portion from the start of her four-page dissent:

In this capital case, the Ninth Circuit failed to exercise the required degree of caution. The divided panel assessed a 2-1⁄2-hour illegally obtained confession filled with disturbing details of a horrific crime like it was a compilation of factual information — no different from evidence introduced by other means.  That was legal error. Therefore, I would grant the petition and summarily reverse the Ninth Circuit’s decision as to the penalty phase, in order to facilitate a reassessment that involves the necessary rigor.

In Compton v. Texas, No. 23–5682, a capital case from Texas, Justice Sotomayor, joined by Justice Jackson, dissented from the denial of cert to complain about the way a Texas court reviewed the exercise of preemptory challenages in jury selection  Here is a portion from the start of her eight-page dissent:

In this capital case, prosecutors used 13 of their 15 peremptory strikes on women.  They offered only one justification in each case: the woman’s views on the death penalty. In reviewing the challenged jurors, the Texas Court of Criminal Appeals (TCCA) failed to conduct a side-by-side comparison.  Instead, it tested the prosecution’s justification in the aggregate, looking to the women’s views on capital punishment as a group instead of individually.  That legal error hid the best indication of discriminatory purpose.  Under a side-by-side comparison, it is clear that at least one woman struck by the State had more favorable views on the death penalty than at least one man the State did not strike.  I would summarily vacate the decision below and remand for the TCCA to apply the proper comparative analysis.

Lots of criminal justice issues this week at SCOTUS oral arguments

The Supreme Court gets back to hearing oral arguments on Monday, as it begins an April sitting full of notable criminal cases.  Next week brings argument on the notable Eighth Amendment Grants Pass case (recently discussed here), as well as Trump v. US to consider claims of presidential immunity.  But this week's arguments, all of which involve criminal issues, might lead to rulings that are quite consequential.  Here is what's coming, thanks to SCOTUSblog summaries:

 

Snyder v. U.S., No. 23-108 [Arg: 4.15.2024]

Issue(s): Whether section 18 U.S.C. § 666(a)(1)(B) criminalizes gratuities, i.e., payments in recognition of actions a state or local official has already taken or committed to take, without any quid pro quo agreement to take those actions.

 

Chiaverini v. City of Napoleon, Ohio, No. 23-50 [Arg: 4.15.2024]

Issue(s): Whether Fourth Amendment malicious-prosecution claims are governed by the charge-specific rule, under which a malicious prosecution claim can proceed as to a baseless criminal charge even if other charges brought alongside the baseless charge are supported by probable cause, or by the “any-crime” rule, under which probable cause for even one charge defeats a plaintiff’s malicious-prosecution claims as to every other charge, including those lacking probable cause.

 

Fischer v. U.S., No. 23-5572 [Arg: 4.16.2024]

Issue(s): Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence.

 

Thornell v. Jones, No. 22-982 [Arg: 4.17.2024]

Issue(s): Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief.

Might the Supreme Court completely rewrite Eighth Amendment jurisprudence in the Grants Pass case?

The question in the title of this post is discussed at some length in this new Marshall Project piece, which carries this full headline: "This Supreme Court Case on Homelessness May Limit Prisoner Rights and Expand Executions: In Grants Pass v. Johnson, a town in Oregon asks the court to reconsider what constitutes “cruel and unusual punishments."  I recommend the whole article, and here are a few excerpts:

When the Supreme Court hears the case of Grants Pass v. Johnson later this month, the justices will consider how far cities can go in policing homeless people. But just as the court swept away a half-century of precedent by overturning Roe v. Wade, the justices could use this case about homelessness to upend how we interpret four key words in the Bill of Rights — “cruel and unusual punishments.” Their decision could have ramifications across a wide swath of the criminal justice system, including prison conditions and the death penalty.

The case is about whether the city of Grants Pass, Oregon, violates the Constitution’s Eighth Amendment when it arrests, fines and even jails people without homes for sleeping outside.  A lower federal court recently ruled that punishing people for doing something they cannot help is cruel and unusual punishment. “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the Ninth Circuit Court of Appeals wrote.

Grants Pass appealed the ruling up to the Supreme Court, which will hear oral arguments on April 22, positing that the courts have no business telling cities what behavior they can regulate.  The Eighth Amendment, they say, applies to punishments levied after a crime, not laws that establish what is a crime in the first place, and besides, fines and jail time are hardly cruel or unusual. 

At the heart of this debate are two very different ways of reading the Eighth Amendment.  First, there’s originalism.  In recent sweeping decisions on abortion and guns, conservative justices have focused on what the Constitution’s language meant to the men who wrote it in the 1780s.  But other judges and scholars argue for a “living” Constitution, whose meaning should change as the world changes....

Using the evolving standards argument, federal courts have ruled on access to health care in prison, protection from excessive force and limits on the use of solitary confinement. They have prohibited the death penalty and mandatory life-without-parole sentences for people who are younger than 18 when they commit crimes, as well as executions of people with intellectual disabilities. The language has also served as the basis for decades of decisions requiring that juries consider people’s individual, often trauma-filled lives before deciding whether to send them to death row.... 

More than 100 scholars and organizations have filed “friend of the court” briefs ahead of oral arguments in Grants Pass v. Johnson.  Many argue the court should let these rulings stand and continue to look to contemporary standards when deciding what is cruel and unusual. In one brief on the other side, Republican attorneys general from 20 states urged the justices to throw out the evolving standards interpretation entirely.  (Many of them also made similar arguments in a separate case, supporting Alabama’s request to execute a man with an intellectual disability.)  Among their reasons are that it “has no discernible end point” and that it requires “judges to act as sociologists.”

I somewhat doubt that many Justices will be inclined to use the Grants Pass csse to dramatically rewrite Eighth Amendment jurisprudence, but I understand why various folks are hoping or fearing such a possibility.  And, perhaps ironically, the fact that many amici have filled briefs urging the Court not to approach this case more broadly might perhaps incline some Justices to approach the case more broadly.  But in a Term full of high-profile cases with lots of broad echoes, the Justices may want to keep this one relatively simple.  And perhaps we will get a sense of matters during oral arguments in a couple of week.  In other woids, stay tuned.

Federal district judge references selective prosecution concerns in sentencing far-right violent protestor

I just saw this notable and extensive reporting on a notable sentencing from California last week.  The piece is headlined "Judge cites Antifa when rejecting prison for white supremacist’s former associate," and here are excerpts:  

A federal judge who believes the U.S. Department of Justice unconstitutionally prosecuted white supremacists for violence at political rallies said Thursday he knows “the government and others” will disagree with his decision to leniently sentence a man for punching a journalist in 2017.  Prosecutors wanted a year of probation and six months in prison for Tyler Laube, a former associate of Rise Above Movement founder and neo-Nazi Robert Rundo, while his lawyer asked for no prison and no probation. 

During a 24-minute hearing on Thursday in Santa Ana, California, U.S. District Judge Cormac J. Carney credited Laube for 35 days already served in jail, fined him $2,000 and ordered him to be on probation for one year.  Carney’s 22-page memorandum said he has “no doubt” prosecutors’ opposition to a lighter sentence is “focusing entirely on Mr. Laube’s past white-supremacist beliefs and ignoring the violent conduct of Antifa and the similar groups.”

“Viewing Mr. Laube’s actions in context, it does not appear he intended to single out and target a journalist,” Carney wrote.  “Violence erupted at the rally. Mr. Laube did not start the violence. Indeed, he was slapped in the face twice before engaging in any violence,” the judge continued. “Once violence started, Mr. Laube and other RAM members reacted to the Antifa members that were harassing and physically attacking Trump supporters.”

Carney said he “cannot cast aside the Constitution and ignore the mitigating factors and sentencing objectives under Section 3353(a),” referring to the federal law governing sentencings.  “The Constitution and the laws of the United States apply to everyone,” the judge wrote. “We must never forget that if the political winds change in this country, and the new government decides to turn on those not sharing the new government’s views, it will be the rights and liberties guaranteed by the Constitution and the laws of the United States that will protect us.”

The judge quoted Robert Bolt’s 1960 play A Man for All Seasons: “Yes, I’d give the Devil benefit of law, for my own safety’s sake.”... The case has a long history: In June 2019, Carney allowed Laube to withdraw his guilty plea for felony conspiracy after he dismissed Rundo and Boman’s charges on First Amendment grounds, but the U.S. 9th Circuit Court of Appeals reinstated the indictment.

Given his previous decisions, Carney likely would have allowed Laube to withdraw his plea to misdemeanor interference with a federally protected right without bodily injury, too. But the U.S. Attorney’s Office also is appealing the judge’s February dismissal order to the 9th Circuit, which already has curtailed the judge’s ability to release Rundo from jail.

If Laube withdrew his plea and Carney dismissed his charges, he could end up in court again should the 9th Circuit reverse the latest dismissal as it did in 2020 with the first dismissal. Carney also is retiring at the end of May, so the case would go to another judge. Because Laube stuck with his plea on Thursday, Carney had no choice but to impose a sentence.

I recommend the full article about these matters, which provides additional backstory and links to sentencing filings. In addition, Judge Carney's lengthy sentencing memo is a fascaniting read (with pictures).  Interestingly, in a footnote toward the close of the sentencing opinion, Judge Carney explains his selective prosecution conclusions are not essential to his sentencing determination: "even ignoring the Court’s selective prosecution finding and the fact that similarly situated individuals did not face prosecution, much less any term of imprisonment, the Court would still conclude that a sentence less than six months is appropriate because the other Section 3553(a) factors weigh in favor of a lesser sentence."

Federal district judge references selective prosecution concerns in sentencing far-right violent protestor

I just saw this notable and extensive reporting on a notable sentencing from California last week.  The piece is headlined "Judge cites Antifa when rejecting prison for white supremacist’s former associate," and here are excerpts:  

A federal judge who believes the U.S. Department of Justice unconstitutionally prosecuted white supremacists for violence at political rallies said Thursday he knows “the government and others” will disagree with his decision to leniently sentence a man for punching a journalist in 2017.  Prosecutors wanted a year of probation and six months in prison for Tyler Laube, a former associate of Rise Above Movement founder and neo-Nazi Robert Rundo, while his lawyer asked for no prison and no probation. 

During a 24-minute hearing on Thursday in Santa Ana, California, U.S. District Judge Cormac J. Carney credited Laube for 35 days already served in jail, fined him $2,000 and ordered him to be on probation for one year.  Carney’s 22-page memorandum said he has “no doubt” prosecutors’ opposition to a lighter sentence is “focusing entirely on Mr. Laube’s past white-supremacist beliefs and ignoring the violent conduct of Antifa and the similar groups.”

“Viewing Mr. Laube’s actions in context, it does not appear he intended to single out and target a journalist,” Carney wrote.  “Violence erupted at the rally. Mr. Laube did not start the violence. Indeed, he was slapped in the face twice before engaging in any violence,” the judge continued. “Once violence started, Mr. Laube and other RAM members reacted to the Antifa members that were harassing and physically attacking Trump supporters.”

Carney said he “cannot cast aside the Constitution and ignore the mitigating factors and sentencing objectives under Section 3353(a),” referring to the federal law governing sentencings.  “The Constitution and the laws of the United States apply to everyone,” the judge wrote. “We must never forget that if the political winds change in this country, and the new government decides to turn on those not sharing the new government’s views, it will be the rights and liberties guaranteed by the Constitution and the laws of the United States that will protect us.”

The judge quoted Robert Bolt’s 1960 play A Man for All Seasons: “Yes, I’d give the Devil benefit of law, for my own safety’s sake.”... The case has a long history: In June 2019, Carney allowed Laube to withdraw his guilty plea for felony conspiracy after he dismissed Rundo and Boman’s charges on First Amendment grounds, but the U.S. 9th Circuit Court of Appeals reinstated the indictment.

Given his previous decisions, Carney likely would have allowed Laube to withdraw his plea to misdemeanor interference with a federally protected right without bodily injury, too. But the U.S. Attorney’s Office also is appealing the judge’s February dismissal order to the 9th Circuit, which already has curtailed the judge’s ability to release Rundo from jail.

If Laube withdrew his plea and Carney dismissed his charges, he could end up in court again should the 9th Circuit reverse the latest dismissal as it did in 2020 with the first dismissal. Carney also is retiring at the end of May, so the case would go to another judge. Because Laube stuck with his plea on Thursday, Carney had no choice but to impose a sentence.

I recommend the full article about these matters, which provides additional backstory and links to sentencing filings. In addition, Judge Carney's lengthy sentencing memo is a fascaniting read (with pictures).  Interestingly, in a footnote toward the close of the sentencing opinion, Judge Carney explains his selective prosecution conclusions are not essential to his sentencing determination: "even ignoring the Court’s selective prosecution finding and the fact that similarly situated individuals did not face prosecution, much less any term of imprisonment, the Court would still conclude that a sentence less than six months is appropriate because the other Section 3553(a) factors weigh in favor of a lesser sentence."

"The Great Writ of Popular Sovereignty"

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

American habeas corpus, long conventionally known as the Great Writ of Liberty (“GWL”), is more properly understood as the Great Writ of Popular Sovereignty (“GWPS”).  That is: a tool for We the People to insist that when our agents in government exercise our delegated penal powers, they remain faithful to our sovereign will.  Once we grasp this conceptual shift, the implications for the law of habeas are profound.

In the past fifteen years, novel archival research has shown the GWL’s founding myth to be ahistorical -- that ideas about sovereignty, rather than individual liberty, drove the common-law writ’s development in the centuries of English history running up to its reception into American law.  Given widespread consensus that (1) English history should and does drive American habeas jurisprudence and (2) the sovereigntist account of that history should now be treated as authoritative, it is puzzling that American courts and scholars have continued to cling to the GWL mythos.  Meanwhile, American habeas law is in crisis, with an ideologically cross-cutting array of scholars and jurists criticizing it as intellectually incoherent, practically ineffectual, and extravagantly wasteful.  Over the Supreme Court’s past three Terms, Justice Neil Gorsuch has led a charge to hollow out federal postconviction habeas almost entirely, arguing that habeas courts should ask only whether the sentencing court was one of general criminal jurisdiction -- and not whether it violated federal constitutional law en route to entering the petitioner’s judgment of conviction.

An accurate understanding of the English history, soundly translated into the logic of American popular sovereignty, demands reconceptualizing the American writ as GWPS.  By following that imperative, we just might save American habeas jurisprudence from its present crisis.  Most critically, a theory of GWPS would illuminate the flaws in Justice Gorsuch’s historical argument for gutting postconviction habeas.  Paradoxically, shifting from the conceptual lens of GWL to that of GWPS would yield habeas doctrine more effective in protecting individual liberty.  Finally, such a shift would bring coherence to otherwise-inscrutable questions in the theory and doctrine of American habeas.

"Assessing the Early Influence of the Model Penal Code’s Revised Sentencing Provisions"

The title of this post is the title of this book chapter just posted to SSRN and authored by Cecelia Klingele. Here is its abstract:

In 2017, the American Law Institute completed a 15-year revision of the sentencing provisions of the Model Penal Code. This chapter examines early indicators of the revision’s influence in the five years following its adoption.  It examines ways in which the provisions of the Model Penal Code: Sentencing (MPCS) appear to be influencing changes in law, both directly and indirectly, and concludes that the areas in which the MPCS has had the most immediate influence are those in which the Code leads, rather than follows, existing law.  This suggests that, much like the original Code, the MPCS’s most helpful contribution may be the ways in which it is able to offer new ways of approaching sentencing and correctional challenges that do not require states to dramatically alter already-existing state legislation.