Sentencing Law and Policy

Backpage founders and executives sentenced to 5 and 10 years, well below what federal prosecutors' urged

I flagged here last week some issues surrounding the federal sentencing of the persons who founded and helped run the website Backpage.  This AP article reports on how these issues played out, and here are excerpts:

Michael Lacey, a founder of the lucrative classified site Backpage.com, was sentenced Wednesday to five years in prison and fined $3 million for a single money laundering count in a sprawling case involving allegations of a yearslong scheme to promote and profit from prostitution through classified ads.

A jury convicted Lacey, 76, of a single count of international concealment money laundering last year, but deadlocked on 84 other prostitution facilitation and money laundering charges. U.S. District Judge Diane Humetewa later acquitted Lacey of dozens of charges for insufficient evidence, but he still faces about 30 prostitution facilitation and money laundering charges.

Authorities say the site generated $500 million in prostitution-related revenue from its inception in 2004 until it was shut down by the government in 2018.  Lacey’s lawyers say their client was focused on running an alternative newspaper chain and wasn’t involved in day-to-day operations of Backpage.  But Humetewa told Lacey during Wednesday’s sentencing he was aware of the allegations against Backpage and did nothing....

Two other Backpage executives, Chief Financial Officer John Brunst and Executive Vice President Scott Spear, also were convicted last year and were each sentenced on Wednesday to 10 years in prison....

Prosecutors said the three defendants were motivated by greed, promoted prostitution while masquerading as a legitimate classified business and misled anti-trafficking organizations and law enforcement officials about the true nature of Backpage’s business model.  Yvonne Ambrose, whose 16-year-old daughter Desiree Robinson was trafficked in Chicago on Backpage and killed in 2016 by a man who answered an online sex ad, told the judge on Tuesday about the pain she feels from her daughter’s death....

Authorities say Backpage employees would identify prostitutes through Google searches, then call and offer them a free ad.  The site also is accused of having a business arrangement in which it would place ads on another site that lets customers post reviews of their experiences with prostitutes.

The site’s marketing director has already pleaded guilty to conspiring to facilitate prostitution and acknowledged that he participated in a scheme to give free ads to prostitutes to win over their business.  Additionally, the CEO of the company when the government shut the site down, Carl Ferrer, pleaded guilty to a separate federal conspiracy case in Arizona and to state money laundering charges in California.  Two other Backpage employees were acquitted of charges by a jury at the same 2023 trial where Lacey, Brunst and Spear were convicted of some counts....

A Government Accountability Office report released in June noted that the FBI’s ability to identify victims and sex traffickers had decreased significantly after Backpage was seized by the government because law enforcement was familiar with the site and Backpage was generally responsive to requests for information.

Prosecutors said the moderation efforts by the site were aimed at concealing the true nature of the ads.  Though Lacey and Larkin sold their interest in Backpage in 2015, prosecutors said the two founders retained control over the site.

"Prosecutorial Reform and the Myth of Individualized Enforcement"

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

The American prosecutor’s legitimacy faces unprecedented challenges.  A new wave of reformist prosecutors has risen to power promising to transform the criminal justice system from within, sparking fierce backlash from defenders of the prosecutorial status quo.  Central to this conflict is a debate over the nature of prosecutorial discretion, influenced by a set of claims and assumptions that this Article terms the myth of individualized enforcement.  This myth posits that prosecutors base discretionary decisions on case-specific facts and equitable circumstances rather than generalizable criteria or categorical nonenforcement practices, such as the policies some reformist prosecutors have adopted that disfavor prosecuting marijuana possession or abortion offenses or seeking the death penalty.

This Article is the first to identify and critically examine the myth of individualized enforcement.  It draws on a review of historical evidence and research on contemporary prosecutorial practices to show that prosecutors have long engaged in categorical nonenforcement in relation to vice laws, property offenses, and even certain areas of violent crime enforcement.  By situating reformist prosecutors’ policies within this broader context, the Article exposes how the myth of individualized enforcement has been weaponized to delegitimize reform efforts while shielding conventional prosecutors from scrutiny.

The Article also excavates the deeper distinctions between reformist and conventional approaches to categorical nonenforcement that the myth of individualized enforcement serves to hide from view.  Reformist prosecutors tend to adopt centralized, formal, and transparent nonenforcement policies that aim to redistribute the benefits of prosecutorial leniency to historically marginalized groups.  Conventional prosecutors, in contrast, have often dispensed categorical leniency in an informal, covert manner and in contexts that tend to reproduce existing hierarchies of race, class, and gender.  By surfacing these divergences, the Article aims to reorient academic and political discourse about prosecutorial reform toward the more constructive end of evaluating different visions of discretionary justice and the institutional structures that will best align prosecutorial power with democratic values.

South Carolina Supreme Court takes up pacing of state execution plans

As reported in this new AP piece, the "South Carolina Supreme Court won't allow another execution in the state until it determines a minimum amount of time between sending inmates to the death chamber." Here is more:

The state's next execution, scheduled for Sept. 20, is still on for inmate Freddie Eugene Owens.  It would be the first execution in South Carolina in over 13 years after the court cleared the way to reopen the death chamber last month.

But as it set Owens' execution date Friday, the court also agreed to take up a request from four other death row inmates who are out of appeals to require the state to wait at least three months between executions.  In its response, state prosecutors suggested setting the minimum at no longer than four weeks between executions.

Currently, the Supreme Court can set executions as close together as a week apart.  That accelerated schedule would rush lawyers who are trying to represent multiple inmates on death row, a lawyer for the inmates wrote in court papers.  Prison staff who have to take extensive steps to prepare to put an inmate to death and could cause botched executions, attorney Lindsey Vann said.

Neither argument is a good reason to wait for three months, state prosecutors responded in offering up to a four-week delay.  “The Department of Corrections staff stands ready to accomplish their duty as required by our law with professionalism and dignity,” Senior Deputy Attorney General Melody Brown wrote in a response drafted after speaking to prison officials....

South Carolina has held executions in rapid succession before.  Two half brothers were put to death in one night in December 1998.  Another execution followed on each of the next two Fridays that month, with two more in January 1999.

UPDATE: As reported in this press piece, the "South Carolina’s Supreme Court promised [on August 30] it would wait at least five weeks between putting inmates to death as the state restarts its death chamber with up to six executions looming."

"An Act of Regression: Louisiana takes a giant step backward in parole and sentencing reform"

The title of this post is the title of this new briefing from Prison Policy Initiative authored by Emmett Sanders. The subtitle of the discussion highlights its main themes: "Louisiana lawmakers are eliminating discretionary parole and implementing regressive truth-in-sentencing laws. These billion-dollar 'zombie policies' are set to double the prison population in a state that is already a world leader in incarceration and will harm public safety." Here is how the briefing gets started (with links from the original):

With the passage of HB 9, Louisiana recently became the 17th state since 1976 — and the first in nearly a quarter of a century — to eliminate discretionary parole as a pathway for releasing people from its prisons.  Simultaneously, the state began implementing HB 10, one of the harshest truth-in-sentencing laws in the country.  These were among a host of other so-called “tough on crime” bills that were signed by Louisiana’s new governor, and will affect nearly everyone sentenced in the state after August 1, 2024.  Together, this package of regressive bills will set prison and sentencing reform back decades in the state: although lawmakers have framed them as “public safety” measures, these laws will have the opposite effect, doubling the prison population, compelling billions of dollars in new prison construction, and drastically escalating violence and trauma for incarcerated people and prison staff in the state.

Effective update on impact and import of Fischer ruling on Jan 6 prosecutions

Politico has this informative new piece, headlined "Justice Department signals plan to salvage obstruction charges in some Jan. 6 cases," which  details some of the echoes of the Supreme Court's Fischer ruling a couple of months ago.  I recommend the piece in full, and here are excerpts:

The Justice Department said Wednesday it plans to press ahead with obstruction charges against two Jan. 6 defendants despite the Supreme Court’s recent ruling that limited the scope of a federal statute that makes it a felony to obstruct many government proceedings.

Prosecutors contended they can still prove that the two defendants, a married couple from Ohio, are guilty of obstructing Congress even under the high court’s narrow interpretation of the law. The defendants, Don and Shawndale Chilcoat, are accused of surging with the mob onto the Senate floor during the riot at the Capitol.

The Justice Department’s announcement in the Chilcoats’ case appears to be the first time since the Supreme Court’s June 28 ruling that prosecutors have signaled their intention to proceed with obstruction charges in any cases stemming from the Capitol riot.

Over the past seven weeks, the Justice Department has abandoned the obstruction charge in a slew of cases, citing the uncertainty caused by the Supreme Court. Prosecutors also have refrained from pursuing the charge in new cases. That has blunted an important cudgel for prosecutors: The obstruction charge carries a 20-year maximum sentence and has often been used to coax defendants into plea deals. The charge has also been used by the department to distinguish between those who simply paraded around the Capitol and those who broke in with a provable intent to interfere with Congress.

Before the Supreme Court weighed in, the Justice Department had charged more than 300 Jan. 6 defendants with “obstruction of an official proceeding” for their alleged roles in seeking to prevent Congress from certifying the results of the 2020 election. The charge was often the most serious that Jan. 6 defendants faced.

But in a 6-3 opinion that scrambled the justices’ usual ideological alignment, the Supreme Court ruled that the 20-year-old obstruction statute, passed in the aftermath of the Enron financial scandal, can apply only to defendants who took steps to impair physical evidence, like shredding documents or concealing them from investigators. The high court’s interpretation reversed lower-court rulings and roiled dozens of ongoing prosecutions stemming from the riot, particularly in cases where defendants faced no other felony charges.

In addition, federal judges released from prison a slew of defendants convicted of obstruction while they await further legal arguments about the future of their cases. In other Jan. 6 cases, particularly those involving defendants who scuffled with or impeded police, prosecutors have turned to a civil disorder charge in lieu of the obstruction count. That charge is also a felony but carries only a five-year maximum sentence....

Wednesday’s filing in the case against the Chilcoats confirms that prosecutors believe they have found ways to revive or sustain the obstruction charges in some cases. They say the evidence suggests the Chilcoats both knew that their incursion onto the Senate floor in the Capitol would prevent Congress from meeting on Jan. 6 to tally electoral vote certificates — the very physical evidence they say the obstruction law was meant to cover.

"Legislatures and Localized Resentencing"

The title of this post is the title of this new paper available via SSRN authored by Ronald Wright and Kay Levine.  Here is its abstract:

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases.  These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels.  In the discretionary channels, the chief local prosecutor has the authority both to decide whether to participate in the program and to select individual cases for review.  Through original interviews and review of publicly available data, we highlight how this practice is working in California and Washington State.  We observe that when local prosecutors exercise their discretion under the new statute, they necessarily produce uneven results around the state, as some counties embrace resentencing practices, some use their power sparingly, and others leave it untouched.

This local variation is fully consistent with the legislative design.  In effect, these statutes grant to local officials certain powers previously associated with parole boards, but the practices are not synonymous with parole.  The statutory design also opens up a gridlocked political process; this grant of authority empowers the state’s most change-oriented prosecutors to act while more cautious prosecutors wait and see.

Notable Third Circuit panel ruling rejects extending Bivens to address inmate abuse in federal prison

A lengthy new opinion by a Third Circuit panel in Kalu v. Spaulding, No. 23-1103 (3d Cir. Aug. 21, 2024) (available here), covers a lot of notable federal prison law and federal prison realities.  Here is how the opinion for the Court begins: 

Five decades ago, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court first authorized an implied damages remedy for constitutional claims brought against federal officials. Since then, in recognition of the Constitution’s separation of legislative and judicial power, the Court has greatly narrowed the availability of new Bivens actions. “At bottom, creating a cause of action is a legislative endeavor.” Egbert v. Boule, 596 U.S. 482, 491 (2022).

Here, appellant John O. Kalu, a federal inmate, seeks to bring Eighth Amendment claims against federal prison officials. He alleges a prison guard sexually assaulted him on three separate occasions, prison officers subjected him to inhumane conditions of confinement, and the prison’s Warden failed to protect him from the abuse through deliberate indifference. He seeks damages under Bivens to redress those harms. Heeding the Supreme Court’s recent and repeated warning that we must exercise “caution” before implying a damages remedy under the Constitution, see id.; Hernandez v. Mesa, 589 U.S. 93, 100–01 (2020), we decline to extend the Bivens remedy to Kalu’s claims. For the following reasons, we will affirm.

This panel opinion especially caught my eye because of a relatively short concurrence by Judge Restrepo, who is a Vice Chair on the US Sentencing Commission. Here is how his opinion gets started:

Although I agree with the Majority that this case presents a new Bivens context, I write separately to highlight the alarming reports of pervasive staff-on-inmate sexual abuse within the Bureau of Prisons and corresponding flaws in the administrative remedy process, and to note recent actions the Department of Justice, the United States Sentencing Commission, and Congress have taken since those findings were disclosed.

Lots of notable front page sentencing issues in next week's sentencing of Backpage

I have not closely followed the legal sagas that have surrounded the website Backpage, which was the huge classified advertising website shut down and seized by federal law enforcement in April 2018.  But next week the Backpage saga has a federal sentencing stage, and this Law360 piece provides a flavor for just some of the issues raised:

Prosecutors asked an Arizona federal judge Monday to sentence two former executives of the defunct classifieds service Backpage.com and the site's co-founder to 20 years in prison after they were found guilty of several counts over an alleged $500 million prostitution scheme.

In a sentencing memorandum, prosecutors said the crimes former executives Scott Spear and John Brunst and Backpage co-founder Michael Lacey were convicted of caused extraordinary harm and amounted to "one of the internet's largest and longest-running criminal empires."

Prosecutors say the website facilitated prostitution through ads. Spear and Brunst were convicted of multiple counts after a 28-day trial in November while two other executives were acquitted. Lacey was found guilty of one count of money laundering; the jury was deadlocked on dozens of other charges against him. The mixed verdict ended a sprawling case that saw its first trial end in a mistrial in 2021....

In April, U.S. District Judge Diane J. Humetewa rejected some of the jury's findings, tossing nearly three dozen transactional money laundering charges, as well as Travel Act charges against Lacey, but kept the rest of the verdict intact. Sentencing is scheduled for Aug. 27 and 28. Prosecutors said Monday they were "unaware of any mitigating circumstances" for the purposes of sentencing. Spear, Brunst and Lacey showed no remorse following their convictions, prosecutors said.... The prosecutors argued that victim impact statements submitted to the court don't fully encapsulate the harm Backpage inflicted, saying some trafficking victims were killed by perpetrators who found them on the site.

Lacey, Spear and Brunst all requested probation in their own sentencing memorandums filed Monday, arguing that they never intentionally broke the law. Lacey claimed that his only felony conviction was for a "financial crime that he purportedly committed upon the idea and advice of two credentialed lawyers, wherein all reporting rules were followed."....

Spear similarly said in his memorandum that his actions were in line with a law-abiding life.... Brunst said he was never employed by Backpage, but rather worked for Village Voice Media Holdings starting in 1992 and later at Medalist Holdings, a successor entity after VVMH sold its newspapers.

Over at Reason, the arguments surrounding one defendant get extra attention in a piece here headlined "Feds Seek 20-Year Sentence for Backpage Co-Founder Michael Lacey; It's an insane ask for someone convicted of just one nonviolent offense." Here is an excerpt:

Lacey was charged — along with other former Backpage executives — of using Backpage to knowingly facilitate prostitution, in violation of the U.S. Travel Act.  Two of the defendants were acquitted of all such offenses and two of the defendants were found guilty of some of them. But the jury could not reach a conclusion when it came to Lacey. U.S. District Judge Diane Humetewa found there was insufficient evidence to sustain most of the remaining 84 counts against him.

Now, prosecutors want the judge to simply act, for sentencing purposes, as if those charges are all true. Federal prosecutors are also putting Lacey on trial for these charges again — which means that if he is eventually convicted, he could wind up being sentenced twice for the same conduct.

This case and these defendants have many more notable elements, and I found reviewing some of the sentencing memoranda fascinating — eg, the government's memo reports that the PSR recommended 1080 months (90 years) for Spear, who is 73 years old.  Here, thanks to Law360, are the sentencing submissions:

•  US Memo
•  Spear Memo
•  Lacey Memo
•  Brunst Memo

Notable battle over death row defendant's innocence claim in Missouri

The New York Times has this new piece, headlined "Prosecutors to Face Off Over Innocence Claim by Prisoner on Death Row," reporting on the people behind a notable legal fight surrounding a defendant scheduled to be executed by the state of Missouri next month.  Here is how it starts:

A man facing execution in Missouri next month will be in court on Wednesday for what could be his last chance to prove his innocence.

The guilt of the man, Marcellus Williams, has been challenged for years, and he has come close to execution twice. But the hearing on Wednesday in St. Louis County will be the first time that a court will consider DNA evidence that could exonerate him.

The case is notable because it has put two law enforcement officials, the local prosecutor and the state attorney general, on opposite sides. The prosecutor, Wesley Bell, supports Mr. Williams’s bid for exoneration and has filed a 63-page motion to overturn his conviction. The attorney general, Andrew Bailey, has argued that Wednesday’s hearing should not even take place.

Mr. Bell, a Democrat, recently defeated U.S. Representative Cori Bush in the Democratic primary for her House seat in a heavily Democratic district, so he will very likely be heading to Congress in January. Mr. Bailey, a Republican who was appointed to his office midterm to fill a vacancy, fended off a primary challenge this month and is also likely to win the general election in the deeply red state.

In his short time in office, Mr. Bailey has opposed three wrongful-conviction claims, going so far as to try to keep people in prison after they have been exonerated. In the Williams case, he has asked both the trial court and the State Supreme Court to block the hearing.

UPDATE: Thanks to a helpful commentor, I see there is new breaking news in this case: "Missouri death row inmate agrees to new plea in deal that calls for life without parole." The latest:

A Missouri death row inmate on Wednesday dropped his innocence claim and entered a new no-contest plea in an agreement that calls for a revised sentence of life in prison without parole.

But the Missouri Attorney General’s Office opposes the new consent judgment and will appeal in an effort to move ahead with the scheduled Sept. 24 execution of Marcellus Williams.

ANOTHER UPDATE: Via CBS/AP, "Missouri Supreme Court blocks agreement that would have halted execution of death row inmate Marcellus Williams"

"Disparities in Sentencing: Creating a "Benchcard" on Brain Development to Incorporate Neuroscience Research"

The title of this post is the title of this new article posted to SSRN authored by Stevie Leahy. Here is its abstract:

This article explores the disparities in juvenile sentencing across the United States, with a focus on the implications of the Supreme Court's decision in Jones v. Mississippi (2021) and the importance of incorporating neuroscience research into legal decisions.  It highlights how different jurisdictions handle juvenile life without parole (JLWOP) sentences, leading to significant inconsistencies based on geography.  The article advocates for the development of a “benchcard” that would guide judges in making informed decisions by integrating the latest scientific understanding of brain development, particularly concerning individuals up to age 25.  By examining the evolution of legal protections for juveniles and the role of the prison industrial complex, the article argues for a more equitable legal approach that considers the developmental differences of young offenders.

"Racially Disparate and Disproportionate Punishment of Felony Murder: Evidence from New York"

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

America’s peculiar institution of felony murder liability has long been criticized as cruel and pointless, particularly as applied to defendants who did not kill.  Yet data collection practices in the criminal legal system make felony murder difficult to study empirically.  This article presents recently uncovered evidence of the racially disparate application of felony murder law, as well as increased disparities for those who have been convicted as accomplices.  This study of felony murder arrest and disposition in New York is one of the first to reach beyond dispositions to examine the behavior punished, and to thereby compare patterns in arrest, prosecution, and conviction of accused principals with accomplices not alleged to have killed. 

This study is also one of the first to report the surprising scale of liability under felony murder law for individuals who did not kill — half of all people convicted of felony murder in the years measured — as well as for people who appear to have caused death inadvertently.  It finds substantial racial disparities in arrests and convictions for felony murder compared to other forms of second-degree murder.  These disparities are starker for teens, who make up at least a quarter of the dataset.  Finally, it uncovers a shocking phenomenon: hundreds of arrests — mostly concentrated in New York City — of almost exclusively Black and Hispanic people for the fictitious crime of attempted felony murder.  In New York, it seems, the worst of felony murder is reserved for defendants of color.

Former Prez Trump's lawyers move to "adjourn any sentencing" following his NY convictions "until after the 2024 Presidential election"

As reported here in The Hill, "Former President Trump asked the New York judge who oversaw his recent criminal trial to delay his sentencing until after November’s presidential election." Here is more:

Judge Juan Merchan previously agreed to push the date back until September so he can first decide whether the Supreme Court’s presidential immunity decision requires tossing Trump’s guilty verdict.

“[S]etting aside naked election-interference objectives, there is no valid countervailing reason for the Court to keep the current sentencing date on the calendar,” Trump attorneys Todd Blanche and Emil Bove wrote in a letter to the judge, which was made public Thursday. “There is no basis for continuing to rush,” the letter continued. “Accordingly, we respectfully request that any sentencing, if one is needed, be adjourned until after the Presidential election.”

In May, a New York jury convicted Trump on all 34 counts of falsifying business records to conceal criminal conduct that hid damaging information from voters.... Trump’s sentencing in New York was originally slated for July, but the judge pushed it back to Sept. 18 after the Supreme Court carved out at least presumptive criminal immunity for former presidents’ official acts.

Trump does not claim immunity from the hush money charges themselves, but he asserts that prosecutors at trial improperly introduced immunized evidence, so his verdict must be wiped as a result. Prosecutors have pushed back on the argument, and Merchan is set to rule on the matter two days before sentencing. Trump’s attorneys said the small gap is an “unreasonably short period of time,” signaling the former president will immediately attempt to appeal if the judge rejects his immunity arguments. “The requested adjournment is also necessary to allow President Trump adequate time to assess and pursue state and federal appellate options in response to adverse ruling,” the letter reads.

The letter also noted Merchan’s third refusal to recuse from the case Wednesday. Trump’s lawyers have latched onto the judge’s daughter’s employment at a digital agency that does work for prominent Democrats, but the judge has insisted he has no conflict, citing guidance from a state ethics advisory group. “Notwithstanding the Court’s ruling on the disputed recusal issue, the requested adjournment would prospectively mitigate the asserted conflicts and appearances of impropriety, which are also the subject of an ongoing congressional inquiry,” Blanche and Bove wrote in the letter.

The full letter from Trump's lawyers to Judge Merchan is available at this link.

"Justice for None: How Marsy's Law Undermines the Criminal Legal System"

The title of this post is the title of this lengthy new report released today by the National Association of Criminal Defense Lawyers.  Here is part of the report's executive summary:

Marsy’s Law is the colloquial name for a model Victims’ Bill of Rights that enshrines victims’ rights within state constitutions. Marsy’s Law was first passed in California in 2008 and has since been adopted in 12 states....

This report aims to shed light on the impact of Marsy’s Law.  While Marsy’s Law proponents argue that the impact on due process for accused individuals has been minimal while the benefits for victims have been immense, legal challenges and news reports from impacted states suggest otherwise.  Many of the provisions of Marsy’s Law are impractical and conflict with the constitutional due process protections for defendants.  There is a need for systematic scrutiny of Marsy’s Law across impacted states to study its impact including identifying challenges, unintended consequences, and the gaps in the collective knowledge and awareness of its effects.  While there has been vocal opposition to Marsy’s Law from many stakeholders including defense attorneys, civil rights groups, a bipartisan group of state legislators, legal experts, victim advocates, and police chiefs and sheriffs, these critiques have largely been siloed within their respective states.

This report synthesizes existing information on Marsy’s Law and presents the findings of new research on the effects of Marsy’s Law in impacted states.  Case law, legal and expert analysis, stakeholder experiences, and empirical research are utilized to provide insights on the impact and consequences of Marsy’s Law on the criminal legal system, including effects on accused individuals, victims, and public safety. In addition to the secondary data (e.g., court rulings, newspaper articles, press releases), a mixed-methods approach was used to gather data from stakeholders in impacted states.  The aim of this research was to obtain an understanding of how Marsy’s Law has impacted the criminal legal system in their states, and their experiences before and after implementation.  A quantitative survey instrument was designed and administered to a variety of stakeholders.  This report presents the results of the experiences of defense attorneys (n=299) in impacted states.  Second, focus groups with defense attorneys and other relevant stakeholders were conducted to bring to light in-depth expertise and experiences with Marsy’s Law.

Notable new DPIC analysis of exonerations for those sentenced to death

The Death Penalty Information Center (DPIC) has this notable new analysis of death row exonerations. Here is how the report, which is titled "New Analysis: Innocent Death-Sentenced Prisoners Wait Longer than Ever for Exoneration," gets started:

On July 1, after waiting 41 years for his name to be cleared, Larry Roberts became the 200th person exonerated from death row.  A new Death Penalty Information Center analysis finds that Mr. Roberts’ experience illustrates a troubling trend: for innocent death-sentenced prisoners, the length of time between wrongful conviction and exoneration is increasing.  In the past twenty years, the average length of time before exoneration has roughly tripled, and 2024 has the highest-ever average wait before exoneration, at 38.7 years.  Our research suggests that two of the factors contributing to this phenomenon are procedural rules restricting prisoner appeals and resistance by state officials to credible claims of innocence.

"The Victims' Rights Mismatch"

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

A puzzling mismatch lurks inside victims’ rights law.  Victims’ rights are most easily justified when held by living victims, but the cultural movement has triumphed largely as a response to crime-caused death.  This Article identifies the mismatch between victims’ rights and their justifications in dead-victim cases, analyzes the normative questions involved, and recommends an institutional response.

The mismatch persists because American jurisdictions assign a single bundle of rights to anyone denominated as a “victim.”  In dead-victim cases, however, the primary bearers of interpersonal harm are gone.  Instead, their rights are assumed by aggrieved family members and legal estates.  In those third-party scenarios, justifications for victim participation and influence collapse.

Mismatch presents normative problems along two dimensions.  Along the deontological one: rights to expression and confrontation expire with dead victims, third-party input doesn’t provide information about retributively significant harm, and dead-victim cases immorally sensitize punishment to the social worth of decedents.  Along the consequentialist dimension, third-party involvement affects punishment at margins that have no plausible effect on deterrence or incapacitation, and victim involvement can’t promote legitimacy when it estranges vulnerable communities.

A better institutional response is straightforward: victims’ rights should be tiered.  In dead-victim cases, they must always be conceptualized as the first-party rights of survivors, rather than third-party rights asserted on behalf of decedents.  Surviving harm bearers can retain rights to notice, protection, and even restitution, but rights to other forms of participation and influence should be severely restricted.

"Truth in Sentencing, Incentives and Recidivism"

The title of this post is the title of this notable recent empirical paper authored by David Macdonald available via SSRN. (Hat tip to this recent episode of the podcast Probable Causation for highlighting the paper and bringing it to my attention.)   Here is its abstract:

Truth in Sentencing laws eliminate discretion in prison release.  This decreases the incentive for rehabilitative effort among prisoners.  I use a regression discontinuity design to exploit a change in these incentives created by the introduction of TIS in Arizona.  Before prison, I find that sentences were reduced by 20% for TIS offenders.  Further, I find that rule infractions increased by 22% to 55% and education enrolment fell by 24%.  After release, I find offenders were 4.8 p.p. more likely to reoffend.  I further find that recidivism and infractions effects are largest among drug and violent offenders.  Finally, I show that the reduction in sentences resulted in a broad equalization of time served at the cutoff, which indicates that the removal of early-release incentives by TIS was the main mechanism driving results.

Intriguing action, but no formal vote, from US Sentencing Commission on retroactivity of 2024 guideline amendments

As noted in this post yesterday, this afternoon the US Sentencing Commission had a scheduled public meeting, and the big official agenda items were "Possible Vote on Final 2024–2025 Policy Priorities" and "Possible Vote on Retroactivity of Certain 2024 Amendments." And, as noted in this post from earlier today, the Commission did vote, and voted unanimously, for this official set of new policy priorities.  But, interestingly, the Commission did not vote on the issue of retroactivity of certain 2024 amendments.

When reaching the retroactivity issue in the agenda (starting at around the 13:45 minute mark of the meeting recording here), the matter failed "for lack of a motion."  The Commission Chair subsequently explained that "many have called for the Commission to identify clear principles that will guide its approach to retroactivity" and that, "after deep deliberation," the Commission decided to heed those calls and apparently defer any vote on retroactivity. 

Notably, my colleague at the Sentencing Matters Substack, Jonathan Wroblewski, wrote this thoughtful post on this topic titled "Is it Time for the U.S. Sentencing Commission to Issue a Detailed, Written, and Reasoned Opinion on When it Applies Guideline Amendments Retroactively?".   I surmise that the Commission has decided that it is time for a new approach to its retroactivity decision-making, but it is not yet clear just what that now means either for retroactivity decisions generally or for the retroactivity of certain 2024 amendments.  Stay tuned.

Prior recent related posts:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle
• US Sentencing Commission releases over 1200 pages of public comment on proposed priorities
• US Sentencing Commission ... conducting "Public Hearing on Retroactivity" for its proposed 2024 guideline amendments
• US Sentencing Commission votes to adopt priorities that "reflect calls to simplify sentencing, reduce the costs of unnecessary incarceration, and promote public safety"

"Rights, Reasons, and Culpability in Tort Law and Criminal Law"

The title of this post is the title of this new book chapter available via SSRN authored by Gregory Antill. Here is its abstract:

This article considers how a mens rea regime growing out of principles of corrective or restorative justice, taken by many theorists to underly tort law, differs from the kind of mens rea regimes which arise in a system of criminal law grounded in more traditional retributivist, expressivist, or deterrence-based principles.  Recent scholarly proposals to import restorative and corrective justice approaches to criminal law are often motivated by the view that, by eschewing punitive punishments, such approaches are less harmful toward defendants.  This article argues, in contrast, that a more traditional “offender-centric” criminal law focused on the degree of blameworthiness of the defendant actually affords less culpable defendants more protection than would a victim-centric criminal law, modeled after tort law and grounded in principles of corrective or restorative justice.

Two notable new sentencing-related papers in the new issue of the Journal of Empirical Legal Studies

I received an email today from the Society for Empirical Legal Studies providing the contents of the newest isse of the Journal of Empirical Legal Studies.  This link to the September 2024 issue was also provided, and I was pleased to see therein two sentencing-related papers (which are open access as of this writing):

"The impact of legal representation in Israeli traffic courts: Addressing selection bias and generalizability problems" by Rabeea Assy & Tomer Carmel

Abstract: This study investigates the impact of legal representation on the process and outcomes of legal proceedings, focusing on Israeli traffic courts dealing with simple traffic offenses.  It finds that legal representation significantly increased defendants' prospects of obtaining plea bargains and of avoiding demerits points.  However, legally represented defendants were also exposed to higher fines compared to self-represented defendants.  Since points are typically the primary concern for defendants, we contend that legal representation improved case outcomes, overall.  Considering the simplicity of the process, the minimal legal expertise required, and the low stakes involved, the representation effect was unexpectedly robust.  This effect may potentially be even stronger in more complex cases and where the stakes are higher.  Unlike previous observational studies, this study reduces the risks associated with selection bias and produces findings that are more credible and potentially generalizable to other contexts.

"The influence of the race of defendant and the race of victim on capital charging and sentencing in California" by Catherine M. Grosso, Jeffrey Fagan & Michael Laurence

Abstract: The California Racial Justice Act of 2020 recognized racial and ethnic discrimination as a basis for relief in capital cases, expressly permitting several types of statistical evidence to be introduced.  This statewide study of the influence of race and ethnicity on the application of capital punishment contributes to this evidence.  We draw on data from over 27,000 murder and manslaughter convictions in California state courts between 1978 and 2002.  Using multiple methods, we found significant racial and ethnic disparities in charging and sentencing decisions. Controlling for defendant culpability and specific statutory aggravators, we show that Black and Latinx defendants and all defendants convicted of killing at least one white victim are substantially more likely to be sentenced to death.  We further examined the role that race and ethnicity have in decision-making at various points in the criminal justice system.  We found that prosecutors were significantly more likely to seek death against defendants who kill white victims, and that juries were significantly more likely to sentence those defendants to death.  The magnitude of the race of the defendant and race of the victim effects is substantially higher than in prior studies in other states and in single-jurisdiction research.  The results show an entrenched pattern of racial disparities in charging and sentencing that privileges white victim cases, as well as patterns of racial disparities in who is charged and sentenced to death in California courts that are the natural result of California's capacious statutory definition of death eligibility, which permits virtually unlimited discretion for charging and sentencing decisions.  This pattern of racial preferences illustrates the social costs of California's failure to follow the Supreme Court's directive in Furman v Georgia to narrow the application of capital punishment over 50 years ago.

Second Circuit panel finds unreasonable 10-year prison sentence for federal prison guard who repeatedly raped inmate

I missed while on the road the notable Second Circuit panel ruling last week in US v. Martinez, No. 22-902-cr (2d Cir. July 30, 3034) (available here).  Though I do not keep up with all reasonableness rulings in circuit courts, I still believe it remains rare for federal circuits to find sentences unreasonable on appeal.  But Martinez is a case that lead to finding of both prosecural and substantive unreasonableness, and here is how the lengthy panel opinion starts:

Defendant-Appellant-Cross-Appellee Carlos Martinez, a former federal prison guard, was convicted after two jury trials in the United States District Court for the Eastern District of New York (Edward R. Korman, District Judge) of a number of charges stemming from his repeated rape of an inmate, whom the parties refer to as “Maria,” at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York.  At both trials, Maria testified that Martinez raped her on five occasions while she was assigned to clean his office on weekends when that area was largely deserted. She testified that Martinez repeatedly sexually assaulted her by force (by physically holding her down) and threats and fear (by, for example, threatening to send her to a special housing unit (“SHU”) and warning her that fighting back would result in charges for assaulting an officer).

The jury at Martinez’s first trial found him guilty of five counts of sexual abuse of a ward, in violation of 18 U.S.C. § 2243(b) — one count for each rape. It also found him guilty of a number of other counts which were later vacated for reasons that are not at issue in the present appeal. At a second trial, Martinez was retried on fifteen counts arising out of the five rapes.  As to each rape, Martinez was charged with sexual abuse by threats or fear in violation of 18 U.S.C. § 2242(1); depriving Maria of her civil rights in violation of 18 U.S.C. § 242; and aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1).  The jury convicted Martinez of five counts of sexual abuse by threats or fear, 18 U.S.C. § 2242(1).  The jury also convicted Martinez of depriving Maria of her civil rights, 18 U.S.C. § 242, and of aggravated sexual abuse, 18 U.S.C. § 2241(a)(1), but only as to the second of the five charged rapes; it acquitted him on those counts as to the other four incidents.

At sentencing, the district court expressed doubts about Maria’s testimony and later explained in its written statement of reasons that it disagreed with the second jury’s guilty verdicts on the five counts of sexual abuse through threats or fear — despite having previously denied Martinez’s motions for acquittal. The court also made several remarks suggesting that the second jury had not credited Maria’s testimony, even though the jury had returned guilty verdicts on at least one count relating to each of the five charged rapes.  It additionally described Martinez as “not a violent criminal,” Gov’t App’x 226, even though the jury had found beyond a reasonable doubt that, on one occasion, he had forcibly raped Maria.  At bottom, the court appeared to believe Martinez’s defense that he and Maria had engaged in consensual sex, a version of events necessarily foreclosed by the guilty verdicts.  The district court ultimately imposed a prison sentence of ten years, a dramatic variance below the advisory Guidelines range of life imprisonment.

Martinez now challenges the sufficiency of the evidence underlying his two convictions premised on using force to commit the second charged rape. We reject the insufficiency claim, because the jury was entitled to credit Maria’s testimony that Martinez physically restrained her to carry out that particular instance of sexual abuse. Martinez argues that his acquittals on some counts reveal that the jury must have completely rejected the victim’s testimony, but it is well established that a defendant cannot rely on inconsistent verdicts to impugn a conviction, and, in any event, the jury’s guilty verdicts decisively refute any contention that the jury entirely rejected that testimony.

The government cross-appeals Martinez’s ten-year sentence as procedurally and substantively unreasonable. We agree. The district court committed a number of procedural errors: It relied on certain 6 clearly erroneous factual findings that were foreclosed by the jury’s guilty verdicts, or that it mistakenly believed were dictated by the jury’s acquittals on other counts. It mistakenly treated Martinez’s convictions for committing sexual abuse through threats or fear as legally equivalent to committing sexual abuse of a ward, despite the fact that the former offense, unlike the latter, requires the sexual contact to have been without the victim’s consent. And it failed to effectively sentence him based on all of his convictions. The sentence was also substantively unreasonable because the district court gave dramatically insufficient weight to the seriousness of the full range of Martinez’s offenses, and impermissibly gave weight to its residual doubts about the jury’s guilty verdicts as a mitigating factor. We therefore AFFIRM the judgment of conviction and REMAND for resentencing consistent with this opinion.

Former Solicitor General Ted Olson, husband of 9/11 victim, says plea deal with 9/11 defendant was "best possible outcome"

The New York Times has this notable new piece with quotes from a notable lawyer about the (now revoked) plea agreement that would have taken away the possibility of a death sentence for the accused mastermind of the 9/11 attacks and two accomplices.  Here are excerpts:

A former solicitor general of the United States whose wife was killed on Sept. 11, 2001, said he was relieved to hear that a plea agreement had been reached in the case, and puzzled when the secretary of defense upended the deal.

Last week, a senior Pentagon official who oversees the military commissions signed a plea agreement with the man accused of planning the attacks and two other defendants. Then, two days later, Defense Secretary Lloyd J. Austin III rescinded it, stirring uncertainty in the case at Guantánamo Bay....

“I don’t think I can opine on whether the secretary of defense had the authority to do what he did,” Theodore B. Olson, the former solicitor general, said in an interview on Tuesday with The New York Times, breaking his silence on the plea deal. “But it does strike me as very unusual that someone with authority to enter into these negotiations would make a deal with these defendants and the government would turn around and renege on the deal, to abrogate the deal.”

His wife, Barbara K. Olson, 45, a conservative legal analyst, was a passenger on American Airlines Flight 77 and on her way to Los Angeles for a television appearance when the plane was flown into the Pentagon in the Sept. 11 attacks.

At the time of the attack, Mr. Olson was serving as President George W. Bush’s solicitor general, the top lawyer responsible for Supreme Court cases for the administration. He said he was informed last Wednesday that prosecutors had reached a plea agreement the same way as other Sept. 11 family members on a Defense Department roster: in an email.

Mr. Olson called the resolution reached “the best possible outcome.” “There was never going to be an enforceable death penalty anyway,” he said. “It was not going to happen and this was going to go on forever and ever.”...

Mr. Olson emerged as an influential voice in favor of plea agreements in February, as negotiations were continuing behind the scenes in the case. He declared the military commissions at Guantánamo Bay a failure — “We tried to pursue justice expeditiously in a new, untested legal system” — and said any capital conviction that emerged from the court was doomed to years of appeals.

Deep divisions exist among relatives of the 2,976 people who were killed that day over how they think the case should be resolved. Some family members and their supporters say nothing short of the execution of Mr. Mohammed should resolve the case. Others argue the United States lost its moral authority to execute the men because they were tortured by the C.I.A....

Increasingly, a third group has emerged arguing that it would endorse the death penalty but, after 12 years in pretrial hearings, a resolution of the case should be a top priority through plea negotiations, which necessarily take death off the table.

Mr. Olson was very sympathetic to family members who “wanted to pursue this to the end of the earth as far as the death penalty is concerned,” he said. “But I thought that was not going to be possible. This had been going on for 20 years.”

“The best resolution, and I know people would disagree with me, and I respect other people’s opinions on this, especially the families, the best possible resolution for this was to bring it to a close: They admit what they did, they agree to cooperate and their sentence is life imprisonment. Period.”

Prior recent related posts:

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

Supreme Court rejects notable effort by MIssouri to stay Donald Trump's gag order and sentencing in New York

As reported in this CBS News piece, the "Supreme Court on Monday rejected a longshot bid by the state of Missouri to halt former President Donald Trump's impending sentence and lift the gag order imposed in the New York 'hush money' case until after the November presidential election." Here is more:

The high court denied Missouri's request to bring its case against New York, and dismissed a separate motion to pause Trump's sentencing in an unsigned order. There were no noted dissents. Justices Clarence and Samuel Alito said they would have granted the state's request to file a bill of complaint, but would not have granted the other relief Missouri sought....

In the request to halt Trump's sentence and temporarily lift the gag order, Missouri Attorney General Andrew Bailey, a Republican, claimed that New York prosecutors are attempting to interfere with Trump's campaign by using their "coercive power" in the form of the gag order and forthcoming sentence.

"Allowing New York's actions to stand during this election season undermines the rights of voters and electors and serves as a dangerous precedent that any one of thousands of elected prosecutors in other states may follow in the future," he wrote. "The public interest stands firmly with Missouri and the protection of the electoral process from this type of partisan meddling."

Bailey told the court that New York has interfered with Missouri's election process by impairing presidential electors' and voters' ability to see Trump on the campaign trail and hear him speak.  Even if Trump could schedule events in September and October, after his scheduled sentencing, the gag order would restrict what he could say at those rallies, Bailey claimed....

New York officials urged the Supreme Court to deny Missouri's attempt to halt Trump's sentence, arguing that the state is attempting to further Trump's individual interests, and that there is no role for the nation's highest court to play.  "Allowing Missouri to file this suit for such relief against New York would permit an extraordinary and dangerous end-run around former President Trump's ongoing state court proceedings and the statutory limitations on this Court's jurisdiction to review state court decisions," Attorney General Letitia James wrote in a filing.

James, a Democrat, argued that the actions Missouri challenges are not attributable to the state of New York, but rather the Manhattan district attorney, who is elected by voters in the county.  "Allowing Missouri to invoke this court's jurisdiction to interfere with the enforcement of criminal law in New York is contrary to these foundational principles and undermines New York's proud tradition of preserving the independence of local DAs," she wrote.

James also warned that Missouri's requested relief risks undermining the integrity of the courts and inviting a flood of similar litigation, which she called "unmeritorious."

The Supreme Court's short order rejecting Missouri's notable effort to secure a stay of New York’s gag order and impending sentence against Donald Trump is available at this link.

Rounding up a few major press pieces about revoked 9/11 plea deals

As noted in this prior post, US Defense Secretary Lloyd Austin late Friday revoked a plea agreement that took away the possibility of a death sentence for the accused mastermind of the 9/11 attacks and two accomplices.  I have seen a number of recent notable major press pieces about these developments, and here is a brief round up:

From the AP, "Sept. 11 families group leader cheers restoration of death penalty option in 9-11 prosecutions"

From The Hill, "Austin was ‘surprised’ by 9/11 plea deals, Pentagon says"

From the New York Times, "How the 9/11 Plea Deal Came Undone"

From Politico, "Republicans praise Austin’s reversal of the 9/11 plea deal, but some victims’ families just want closure"

From the Wall Street Journal, "Plea Deals for 9/11 Defendants Revoked, Leaving Cases in Limbo"

Prior recent related posts:

• Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty 
• Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences
• US Defense Secretary overrules GITMO overseer to revoke plea agreement with 9/11 defendants

Justice Gorsuch's new book seemingly a potent pitch for criminal justice reform

I believe that the new book co-authored by Justice Neil Gorsuch and Janie Nitze, which is titled "Over Ruled: The Human Toll of Too Much Law," is not officially available until later this week. But this New York Times piece featuring an interview with the Justice by David French suggests that criminal justice reform advocates will want to check out the book when it becomes available. Here is an excerpt from the interview:

French: It struck me that some of the stories here in the book, of the way in which the complexity of criminal law has impacted people, are among the most potent in making the point.  Is there a particular story about the abuse of criminal law that stands out to you as you’re reflecting back on the work?

Gorsuch: I would say Aaron Swartz’s story in the book might be one example. Here’s a young man, a young internet entrepreneur, who has a passion for public access to materials that he thinks should be in the public domain.  And he downloads a bunch of old articles from JSTOR.  His lawyer says it included articles from the 1942 edition of the Journal of Botany. Now, he probably shouldn’t have done that, OK?

But JSTOR and he negotiated a solution, and they were happy.  And state officials first brought criminal charges but then dropped them.  Federal prosecutors nonetheless charged him with several felonies.  And when he refused to plea bargain — they offered him four to six months in prison, and he didn’t think that was right — he wanted to go to trial.

What did they do?  They added a whole bunch of additional charges, which exposed him to decades in federal prison. And faced with that, he lost his money, all of his money, paying for lawyers’ fees, as everybody does when they encounter our legal system.  And ultimately, he killed himself shortly before trial.  And that’s part of what our system has become, that when we now have, I believe, if I remember correctly from the book, more people now serving life sentences in our prison system than we had serving any prison sentence in 1970.  And today — one more little item I point out — one out of 47 Americans is subject to some form of correctional supervision (as of 2020).

French: You speak in the book about coercive plea bargaining, this process where a prosecutor will charge somebody and then agree to a much reduced sentence on the condition that they don’t take it to trial, that they go ahead and plead guilty, or sometimes when they refuse to plead guilty, they’ll add additional charges.  This is something that a lot of critics of the criminal justice system have highlighted for some time.  Do you see a remedy?

Gorsuch: Well, I’m a judge, and I’m going to apply the laws we the people pass.  That’s my job.  In the book, I just wanted to highlight to “we the people” some of the changes that I’ve seen in our law during my lifetime, and plea bargaining during my lifetime has skyrocketed.  It basically didn’t exist 50 or 100 years ago, and now 97 percent or so of federal criminal charges are resolved through plea bargaining.

And I just have some questions.  What do we lose in that process?  We lose juries.  Juries are wise, right?  And they’re a check both on the executive branch and prosecutors and they’re a check on judges, too, right?  And the framers really believed in juries.  I mean, there it is in Article 3.  There it is in the Sixth Amendment. There it is in the Seventh Amendment.  They really believed in juries, and we’ve lost that.

And another thing about juries, when you lose juries: Studies show that people who sit on juries — nobody likes being called for jury service. But studies show that after jury service, people have a greater respect for the legal system, for the government, and they participate more in their local governments.

"Race, Racial Bias, and Imputed Liability Murder"

Though posted on SSRN a few months ago, I just came across this new paper that shares a title with this post and was authored by Perry Moriearty, Kat Albrecht and Caitlin Glass. Here is its abstract:

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out.  Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy.  What surprisingly few scholars have addressed, however, is who bears the brunt.  This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” 

An analysis of ten years of murder prosecutions in the state of Minnesota reveals that imputed liability murder is anything but a fringe subtype of homicide: an astounding 70% of those charged with murder during this period were charged with felony murder, accomplice liability murder, or both.  The study also shows that nearly 60% of these defendants were Black, a level of racial disproportionality that is not just intrinsically extreme; it is comparatively greater than levels of disproportionality for other types of murder.  The question is, why? 

The answer lies in part in the structural and social psychological dynamics of imputed liability murder prosecutions themselves, we claim.  By reducing prosecutors’ burden to prove the most salient legal indicia of a defendant’s culpability — mens rea, actus reus, or both — and allowing prosecutors to cast a wide and undifferentiated net around almost any homicide, the felony murder and accomplice liability murder doctrines invite prosecutors to base normative charging decisions on subjective, extra-legal proxies, like “dangerousness” and “group criminality.”  Multiple studies have shown that decision-makers are more likely to attribute these proxies to Black defendants and, in turn, treat them more punitively.  Compounding these dynamics is the racial stereotypicality of the crimes themselves.  A separate body of research indicates that felony murder and accomplice liability murder have become so cognitively synonymous with Black defendants that simply shoring up the doctrines’ structural laxity may not be enough to mitigate their disproportionate enforcement.

As states across the country grapple with reforming their felony murder and accomplice liability murder laws, this Article contributes to the ongoing debate about the legitimacy of both doctrines.  It also raises critical questions about the racialized enforcement of not just these doctrines but of any doctrine that invites the State to impute criminal liability. 

US Defense Secretary overrules GITMO overseer to revoke plea agreement with 9/11 defendants

As reported in this New York Times article, "Defense Secretary Lloyd J. Austin III on Friday overruled the overseer of the war court at Guantánamo Bay and revoked a plea agreement reached earlier this week with the accused mastermind of the Sept. 11, 2001, attacks and two alleged accomplices."  Here is more:

The Pentagon announced the decision with the release of a memorandum relieving the senior official at the Defense Department responsible for military commissions of her oversight of the capital case against Khalid Shaikh Mohammed and his alleged accomplices for the attacks that killed nearly 3,000 people in New York City, at the Pentagon and in a Pennsylvania field.

The overseer, retired Brig. Gen. Susan K. Escallier, signed a pretrial agreement on Wednesday with Mr. Mohammed, Walid bin Attash and Mustafa al-Hawsawi that exchanged guilty pleas for sentences of at most life in prison.  In taking away the authority, Mr. Austin assumed direct oversight of the case and canceled the agreement, effectively reinstating it as a death-penalty case.  He left Ms. Escallier in the role of oversight of Guantánamo’s other cases.

Because of the stakes involved, the “responsibility for such a decision should rest with me,” Mr. Austin said in an order released Friday night by the Pentagon....

A senior Pentagon official said that the decision was the secretary’s alone, and that the White House had no involvement.  The official said Mr. Austin had never supported a plea deal and wanted the military commission trials to proceed.

Mr. Austin’s action was met with disbelief by lawyers at Guantánamo Bay who were preparing for a hearing, possibly as soon as Wednesday, for the judge in the case, Col. Matthew N. McCall, to question Mr. Mohammed about whether he understood and voluntarily agreed with the plea.

Prior related posts:

• Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty 
• Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences

Crash victims' families formally object to proposed Boeing plea deal

In this post last month, I asked "Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?".  I now see via this post by Paul Cassell over at The Volokh Conspiracy that he has helped file "a motion for the Boeing 737 MAX crashes victims' families, asking the district judge to reject the plea deal that the Justice Department and Boeing have negotiated."  Here is the lengthy motion's introductory statement:

Boeing’s lies to the FAA directly and proximately killed 346 people, as this Court has previously found.  ECF No. 116 at 16.  And yet, when the Government’s and Boeing’s skilled legal teams sat down behind closed doors to negotiate a plea deal, that tragic fact somehow escaped mention.  Instead, what emerged from the negotiations was a plea agreement treating Boeing’s deadly crime as another run-of-the-mill corporate compliance problem.  The plea agreement rests on the premise that the appropriate outcome here is a modest fine and a corporate monitor focused on the “effectiveness of the Company’s compliance program and internal controls, record-keeping, policies, and procedures ….” Proposed Plea Agreement, Attachment D, at ¶ 3.  And as a justification for such lenient treatment, the plea agreement relies on an incomplete and deceptive statement of facts that obscures Boeing’s true culpability.

The families object, as the Crime Victims’ Rights Act gives them the right to do.  See 18 U.S.C. § 3771(a)(3) (giving victims’ representatives the right “to be reasonably heard” regarding a “plea”).  The families respectfully ask the Court not to lend its imprimatur to such an inappropriate outcome. Indeed, the families’ first objection is that the Court would not be allowed to make its own determination about the appropriate sentence for Boeing but merely to rubber stamp what the parties propose through a “binding” plea deal under Fed. R. Crim. P. 11(c)(1)(C).

In the pages that follow, the families provide eight substantial objections to the proposed plea, including its deceptive factual premises, its inaccurate Sentencing Guidelines foundation, and its inadequate accounting for the deaths Boeing caused.  This Court has previously stated that when it has authority “to ensure that justice is done,” then “it would not hesitate.” ECF No. 186 at 29.  This proposed agreement is not justice.  The Court should not hesitate to reject it.

Prior related post:

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

Michigan Supreme Court finds violation of state constitution in applying sex offender registry to non-sexual offenders

A divided Michigan Supreme Court, splitting 5-2, ruled earlier this week in Michigan v. Lymon, No. 164685 (Mich. Julu 29, 2024) (available here), that its state constitution precluded putting people convicted of non-sexual crimes on the state's sex-offender registry.  Here is how the majority opinion begins and a few key passages from a lengthy (nearly 50-page) opinion:

Defendant challenges his inclusion on the sex-offender registry under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., as cruel or unusual punishment under the Michigan Constitution.  We hold that the application of SORA to non-sexual offenders like defendant is cruel or unusual punishment in violation of the Michigan Constitution....

Although the 2021 SORA bears a rational relation to its nonpunitive purpose and the Legislature has continued to express its intention that SORA constitute a civil regulation, SORA resembles traditional methods of punishment, promotes the traditional aims of punishment, and imposes affirmative restraints that are excessive as applied to non-sexual offender registrants.  Accordingly, we conclude that the 2021 SORA constitutes punishment as applied to non-sexual offenders....

We conclude that the punishment of SORA registration for non-sexual offenders like defendant is grossly disproportionate and accordingly constitutes cruel or unusual punishment under the Michigan Constitution. See Bullock, 440 Mich at 35. Although other jurisdictions similarly include certain non-sexual offenders within their sex-offenderregistry laws, we find that this penalty is unduly harsh as compared to the non-sexual nature of the offense. Further, similar offenses do not result in this same penalty, and the offenses that do result in the same penalty are more severe and have a sexual component.  Accordingly, we conclude that the 2021 SORA constitutes cruel or unusual punishment as applied to non-sexual offenders.

The dissent, authored by Judge Zahra, clocks in at nearly 60 pages and has a multi-page conclusion that starts this way:

It is important to note what the majority opinion is and what it is not.  The majority opinion extends the Michigan Constitution to bar dissemination of accurate information to the public of those who have kidnapped and imprisoned children so that individuals in the community can have the knowledge to lead their lives as they so choose.  In so doing, the majority opinion effectively concludes that the public cannot be trusted with accurate information of convictions, because it may in the view of the majority opinion, unduly shame or burden individuals who were indeed convicted of child kidnapping and imprisonment. Despite being enacted for decades by the federal government and 42 out of 49 other state jurisdictions, this Court concludes that public registration for such offenses does not even reasonably advance the interests of public safety and awareness.  The majority opinion finishes with a conclusion never before reached by Michigan or federal courts: that public dissemination of conviction history, combined with registration requirements to ensure that the information is accurate, is so extraordinary and disproportionate to defendant’s offense of violently imprisoning children while they plead dearly for their lives and the life of their mother amounts to cruel or unusual treatment.  This is an extreme conclusion that will severely hinder this state from publicly recording and registering those who kidnap, abuse, or imprison children.

Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences

In this post last year, I noted that families of 9/11 victims had been notified that military prosecutors and defense lawyers were exploring plea deals for certain defendants that would take the death penalty off the table.  Last night, as reported in this New York Times article, it seemingly became official that the "man accused of plotting the attacks of Sept. 11, 2001, and two of his accomplices have agreed to plead guilty to conspiracy and murder charges in exchange for a life sentence rather than a death-penalty trial at Guantánamo Bay, Cuba."  Here is more:

Prosecutors said the deal was meant to bring some “finality and justice” to the case, particularly for the families of nearly 3,000 people who were killed in the attacks in New York City, at the Pentagon and in a Pennsylvania field.

The defendants Khalid Shaikh Mohammed, Walid bin Attash and Mustafa al-Hawsawi reached the deal in talks with prosecutors across 27 months at Guantánamo and approved on Wednesday by a senior Pentagon official overseeing the war court.

The men have been in U.S. custody since 2003. But the case had become mired in more than a decade of pretrial proceedings that focused on the question of whether their torture in secret C.I.A. prisons had contaminated the evidence against them.

Word of the deal emerged in a letter from war court prosecutors to Sept. 11 family members. “In exchange for the removal of the death penalty as a possible punishment, these three accused have agreed to plead guilty to all of the charged offenses, including the murder of the 2,976 people listed in the charge sheet,” said the letter, which was signed by Rear Adm. Aaron C. Rugh, the chief prosecutor for military commissions, and three lawyers on his team. The letter said the men could submit their pleas in open court as early as next week.

The plea averted what was envisioned as an eventual 12- to 18-month trial, or, alternatively, the possibility of the military judge throwing out confessions that were key to the government’s case. Col. Matthew N. McCall, the judge, had been hearing testimony this week and had more hearings scheduled for later this year to decide that and other key pretrial issues....

The three men will still face a mini trial of sorts, but probably not before next year. At the military commissions, where they were charged, a judge accepts the plea, but a military jury must be empaneled to hear evidence, including testimony from victims of the attacks, and deliver a sentence. By that point, the judge has typically resolved litigation over what evidence can be used at the sentencing proceeding.

The deal stirred both anger and relief among the thousands of relatives of those killed on Sept. 11. Some family members had been fearful that the case would never reach a resolution, and that the defendants would die in U.S. custody without a conviction. Others, wanting a death penalty, had pushed the government to get the case to trial, even at the risk of the sentence being later overturned....

Two of the original five defendants were not a party to the deal. Ramzi bin al-Shibh, who was accused of helping to organize a cell of the hijackers in Hamburg, Germany, was found incompetent to stand trial because of mental illness, and his case was severed. The fifth defendant, known as Ammar al-Baluchi, 46, also was not included in the plea agreement and could face trial alone. He is the nephew of Mr. Mohammed and is charged, like Mr. Hawsawi, with helping the hijackers with finances and travel arrangements while working in the Persian Gulf.

"Algorithms in Judges’ Hands: Incarceration and Inequity in Broward County, Florida"

The title of this post is the title of this article recently posted to SSRN authored by Utsav Bahl, Chad M. Topaz and others. Here is its abstract:

Judicial and carceral systems increasingly use criminal risk assessment algorithms to make decisions that affect individual freedoms.  While the accuracy, fairness, and legality of these algorithms have come under scrutiny, their tangible impact on the American justice system remains almost completely unexplored.  To fill this gap, we investigate the effect of the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) algorithm on judges’ decisions to mandate confinement as part of criminal sentences in Broward County, Florida.

Our study compiles a novel dataset of over ten thousand court records from periods before and after the implementation of COMPAS in Broward County and uses it to build a Directed Acyclic Graph (DAG) model of the confinement decision-making process.  Our approach aims to reveal potential associations between the use of COMPAS and incarceration.  We find that the many individuals deemed low risk by COMPAS are much less likely to be confined than were comparable individuals before COMPAS was in use, and similarly, individuals deemed high risk are much more likely to be confined than before.  Overall, the impact of COMPAS scores on sentencing decisions is a reduced rate of confinement for both Black and white individuals.  However, a racial bias exists within the COMPAS scores, as they are based on historical data that mirrors pre-existing racial inequities.  While the overall rate of incarceration decreases, the difference in scores exacerbates the difference in confinement between racial groups, thereby deepening racial disparity.  Insofar as criminal risk algorithms can aid decarceration, policymakers and judges alike should be mindful of the potential for increased racial inequity.

Notable Third Circuit panel ruling finds ineffectiveness in erroneous sentencing plea advice

A helpful reader alerted me to a new panel ruling from the Third Circuit in Baker v. US, No. 23-2059 (3d Cir. July 25, 2024) (available here). The start of the extended opinion highlights why it seems to me notable:

Following a robbery of the First Atlantic Federal Credit Union in Neptune, New Jersey on January 13, 2010, federal prosecutors charged Steven Baker with bank robbery and using a firearm during the robbery, the latter in violation of 18 U.S.C. § 924(c).  They offered Baker a plea agreement, under which he would plead guilty to those two charges and also admit to, but not be charged with, the commission of two other bank robberies while using a firearm.

It was here the problems at the heart of this appeal began.  Baker’s counsel advised him that he faced a total of 1517 years’ imprisonment if he accepted the plea and that, if he did not accept it, the Government would also charge him in connection with the two other armed bank robberies.  As to the three potential Section 924(c) counts, his counsel told him that he faced a consecutive term of 21 years’ imprisonment.  In fact, he faced a consecutive 57-year mandatory minimum sentence under the statute’s “stacking” provision then in effect.  After receiving this highly inaccurate advice, Baker turned down the plea, was charged in connection with the other robberies, and proceeded to trial, where he was convicted on all counts.  His sentence was 57 years on the Section 924(c) counts plus 87 months on the bank robbery charges.

Baker filed a direct appeal, and we affirmed the judgment and sentence.  United States v. Baker, 496 F. App’x 201, 206 (3d Cir. 2012), cert. denied, 568 U.S. 1148 (2013).  He then filed a Section 2255 federal habeas motion, arguing that his counsel was constitutionally ineffective for severely miscalculating his sentence exposure as he weighed the plea offer. 28 U.S.C. § 2255.  The District Court denied relief, determining Baker could not show prejudice.

Considering the significant disparity in Baker’s comparative sentence exposure between accepting the plea offer and going to trial and crediting his testimony that he would have accepted the plea agreement but for his counsel’s error, we conclude that Baker has demonstrated prejudice.  Thus, we reverse and remand.

Reviewing recent developments as more states consider second-look sentencing reviews

Stateline has this new piece on the growing interest at the state level of second-look sentencing reviews.  The piece is worth a full read, though its themes are summarized in the full headline: "Efforts to release prisoners from long sentences draw new interest: But many of the proposed policies have failed this year."  Here are a few excerpts (with links from the original):

As America’s prison population both ages and increases, the “second look” movement has gained interest as a way to reduce overcrowding and potentially save money. Both Republicans and Democrats have sponsored the bills, but some advocates and prosecutors say the laws could retraumatize crime victims and further burden a strained court system.

Still, at least one second look bill, in Oklahoma, was signed into law this year. The new law, which is set to go into effect soon, requires judges to consider whether domestic violence was a mitigating factor in a crime. If so, a defendant would be eligible for a lighter sentence compared with the usual mandatory ranges....

Some sentencing experts and criminal justice advocates think second look legislation could draw bipartisan support because the measures aim to address prison overcrowding and overspending by releasing people who are least likely to reoffend.

“It can be a way to address excess spending,” said Liz Komar, sentencing reform counsel with The Sentencing Project, a nonprofit criminal justice research and advocacy group. “We can reinvest scarce public safety dollars from being uselessly employed to keep people who are zero risk in prison to instead prevent crime in the community.”

At least 12 states already have second look measures in place, according to the group’s legislative tracker. The existing second look laws vary, with some allowing courts to reconsider sentences based on conditions such as an offender’s age at the time of the offense and amount of time served, and others allowing prosecutors to request the court reconsider a sentence....

Debate over second look policies has been intense. Some prosecutors, victim rights groups and family members of crime victims have voiced concerns that victims and their families could be retraumatized by the resentencing process.

Some fear that these policies could be abused. Others worry about overburdened prosecutors having to handle an influx of resentencing cases.

"Loper Bright and the Great Writ: Will the New Constitutionalists End 'Treason to the Constitution,' Restore the Judicial Power, and Make the Law of the Land Supreme Again?"

The title of this post is the title of this notable new paper authored by James Liebman and Anthony Amsterdam. Here is its abstract:

Chevron deference is dead.  The Court's forty-year, seventy-decision experiment with Article-III-court deference to "reasonable" agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed "the judicial Power" to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decisionmaking. "AEDPA deference" lives.  The Court's twenty-five-year, seventy-two decision experiment with Article-III-court deference to "reasonable" state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges' independent judgment that the state courts have misread or misapplied the federal Constitution in adjudicating these defendants' claims.

How can this be?  Only if state judges have more authority to make constitutional law by which federal judges may be bound than federal agencies have to make sub-constitutional law by which federal judges may be bound.  This is obviously wrong.  Federal agencies are creatures of Congress to which it may appropriately delegate some of its power to make the law that federal courts then are duty-bound to apply.  Neither Congress nor any other authority save the American people by amendment may delegate the making of constitutional law.  Constitutional text and history make the wrongness even clearer.  The Framers wrote the Constitution precisely to quell the "violence of faction" that the States exhibited under the Articles of Confederation.  They understood faction to produce "improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury." So the Framers resolved to bind "the judges in every State" to treat the Constitution as the supreme Law of the Land; and the Framers gave federal judges-protected by life tenure and irreducible salaries-"the judicial Power" to neutralize factious state-court decisions by exercising independent judgment whenever Congress gave them jurisdiction to review those decisions.

Congress, for its part, has always mandated federal-court as-of-right review of state custody on either writ of error (1789-1914) and/or habeas corpus (1867-today). And throughout more than two-and-a-third centuries, the Supreme Court has issued one federal-courts classic opinion after another, characterizing deference to Congress' or state courts' reasonable-but-wrong constitutional judgments as "treason to the Constitution."  The New Constitutionalists successfully challenged Chevron under the banner of reasserting the rule of law to protect "small" businesses and "the citizenry" against politics and special interests.  The test of their bona fides is whether they will take the same course in cases of individuals criminally sentenced to imprisonment or execution through "improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury."

Detailing the impact of the Supreme Court's Fischer ruling on other Jan 6 defendants

This new piece from Courthouse New Service provides a detail account of how the Supreme Court's recent Fischer ruling is impacting some January 6 riot prosecutions.  The full headline provides the essentials: "DOJ begins dropping Capitol riot obstruction charges following SCOTUS decision:  While only 2% of all Jan. 6 defendants are likely to be affected by the high court's decision, that group includes certain members of the extremist Proud Boys and Oath Keepers."  Here are some more particulars from the article:

According to the Justice Department in its most recent monthly update, 1,178 individuals of the total 1,472 defendants charged in connection with the Capitol riot were not charged with obstruction of an official proceeding. 

Of the remaining 259, 133 have already been sentenced — 76 of those were convicted on other felonies and 40 have already been released from prison.  There are only 17 defendants of that 133 who were sentenced on just felony obstruction with certain misdemeanors and remain incarcerated. 

The other 126 defendants are on pretrial release while awaiting sentencing or trials. 

The Justice Department emphasized that there are zero cases where a defendant was only charged with obstruction of an official proceeding and every defendant faces some other felony or misdemeanor charges.  In total, just 2% of Capitol riot defendants could potentially benefit from the Supreme Court’s decision. 

I am not sure I follow the 2% math, since it seems that there are more than thirty Jan 6 defendants that ought to potentially benefit from Fischer in some way.  That said, I do fear there with be defendants who should benefit from FIscher who, because of appeal waivers or other procedural barriers, will not be able to secure Fischer-based justice.  And, more broadly, the data reported above  suggests that the vast majority of Jan 6 defendants are not going to be impacted by the Fischer ruling.

Prior related posts:

• Supreme Court, by 6-3 vote, limits reach of federal statute criminalizing obstructing official proceeeding in Jan 6 prosecution 
• Reviewing some reviews of the impact of SCOTUS Fischer ruling on Jan 6 prosecutions

"Post-Chevron, Good Riddance To The Sentencing Guidelines"

The ttile of this post is the title of this notable new Law360 commentary authored by Mark Allenbaugh, Doug Passon and Alan Ellis. The extended piece covers a lot of ground at the intersection of administrative law and the guidelines, and here is a snippet from its first section:

The Supreme Court's decision in Loper Bright Enterprises v. Raimondo, overturning the Chevron doctrine, raises a critical and long overlooked question: What, if any, deference is now owed to the guidelines themselves?

Over the past few years, significant splits have developed among many federal district courts and appeals courts with respect to the deference courts should afford both to the guidelines proper, and to their commentary.

Loper Bright is certain to add to the disarray. Accordingly, it is imperative that the court step in quickly to resolve this building crisis.

We argue that, in their current form, the guidelines should not be afforded any deference for two primary reasons.  First, although the guidelines were originally designed to be binding, their binding nature has since been ruled unconstitutional. Yet the commission has not revised the guidelines to account for their now-advisory nature.

Second, in their current form, they actually promote the exact opposite of the various policy goals they were intended to achieve — namely, to provide certainty, proportionality and uniformity in sentencing, while taking into account the population capacity of the Federal Bureau of Prisons.

Prior related post:

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

US Supreme Court stays Texas execution minutes before scheduled lethal injection

As reported in this AP article, the "U.S. Supreme Court granted a stay of execution for a Texas man 20 minutes before he was to receive a lethal injection Tuesday evening.  The inmate has long maintained DNA testing would help prove he wasn’t responsible for the fatal stabbing of an 85-year-old woman during a home robbery decades ago."  Here is more:

The nation’s high court issued the indefinite stay shortly before inmate Ruben Gutierrez was to have been taken to the death chamber of a Huntsville prison.

Gutierrez was condemned for the 1998 killing of Escolastica Harrison at her home in Brownsville in Texas’ southern tip. Prosecutors said the killing of the mobile home park manager and retired teacher was part of an attempt to steal more than $600,000 she had hidden in her home because of her mistrust of banks.

Gutierrez has sought DNA testing that he claims would help prove he had no role in her death. His attorneys have said there’s no physical or forensic evidence connecting him to the killing. Two others also were charged in the case.

The high court’s brief order [available here], released about 5:40 p.m. CDT, said its stay of execution would remain in effect until the justices decide whether they should review his appeal request. If the court denies the request, the execution reprieve would automatically be lifted....

Gutierrez has had several previous execution dates in recent years that have been delayed, including over issues related to having a spiritual adviser in the death chamber. In June 2020, Gutierrez was about an hour away from execution when he got a stay from the Supreme Court.

In the most recent appeal, Gutierrez’s attorneys had asked the Supreme Court to intervene, arguing Texas has denied his right under state law to post-conviction DNA testing that would show he would not have been eligible for the death penalty. His attorneys argued that various items recovered from the crime scene — including nail scrapings from Harrison, a loose hair wrapped around one of her fingers and various blood samples from within her home — have never been tested....

Prosecutors have said the request for DNA testing is a delay tactic and that Gutierrez was convicted on various pieces of evidence, including a confession in which he admitted to planning the robbery and that he was inside her home when she was killed. Gutierrez was convicted under Texas’ law of parties, which says a person can be held liable for the actions of others if they assist or encourage the commission of a crime.

"Confronting Failures of Justice: Getting Away with Murder and Rape"

The title of this post is the title of this notable forthcoming book authored by Paul Robinson, Jeffrey Seaman and Muhammad Sarahne.  The authors have posted the front matter and Chapter 1 of the text here at SSRN, where one can also find this abstract:

Most murderers, rapists, and other serious criminals escape justice in America. Legal academia has traditionally focused on the problem of injustice, where the legal system punishes wrongly through punishing the innocent or over-punishing the guilty.  But the problem of failures of justice, where the legal system fails to punish criminal offenders, has been largely ignored.  This is unfortunate because, as the book discusses, the damage caused by unpunished crime is immense, and even worse, falls disproportionately on vulnerable poor and minority communities, thus damaging equity as well as justice.  Regular failures of justice increase crime by undermining deterrence and the criminal justice system’s credibility with the community as a moral authority.  A government that allows rampant failures of justice is ignoring one of its most basic duties.  No society should allow its members to be murdered, raped, and robbed without consequence.  Yet that is what the American legal system does in most cases.  Confronting Failures of Justice dares to ask why getting away with murder and rape is the norm, not the exception, in America.

The book’s seventeen chapters tour nearly the entire criminal justice system, examining the rules and practices that regularly produce failures of justice in serious criminal cases.  Topics covered include flawed police investigations, inadequate financing, statutes of limitation, judicial restrictions on investigation, failures to utilize new technology, the exclusionary rule, speedy trial rules, pretrial release, plea bargaining, sentencing procedures, early release on parole, executive clemency, witness intimidation, police-community relations, non-enforcement policies, distributive principles, and more.  Each chapter outlines the nature and extent of justice failures caused by the rule or practice, provides real-world examples, and describes the competing societal interests upheld or neglected by the status quo. Finally, each chapter reviews proposed or implemented reforms that could balance the competing interests in a less justice-frustrating manner and recommends one — sometimes completely original — reform to improve the system.

A systematic study of failures of justice is long overdue.  Now for the first time, scholars, students, policymakers, and citizens have a comprehensive guide to the problem — and possible solutions.

Split Fifth Circuit panel holds that "changes in the law" can be a basis for sentence reduction under § 3582(c)(1)(A)(i)

A helpful colleague made sure I did not miss a notable new panel decision from the Fifth Circuit in US v. Jean, No. 23-40463 (5th Cir. July 15, 2024) (available here).  The case concerns the long-simmering question of whether "changes in the law" can provide a basis for a sentence reduction under § 3582(c)(1)(A)(i), and this appeal concerns review of a reduction granted before the new US Sentencing Commission amended guideline was applicable.  Both the facts and reasoning in Jean are worth reading in full, but here are a few key passages from the majority opinion:

The question before the court is a simple one: does a sentencing court have the discretion to hold that non-retroactive changes in the law, when combined with extraordinary rehabilitation, amount to extraordinary and compelling reasons warranting compassionate release?  Considering this question carefully, we answer it in the affirmative.

We explain first the discretion afforded to a sentencing court.  With this discretion in mind, we conclude that there is no textual basis for creating a categorical bar against district courts considering non-retroactive changes in the law as one factor.  Next, we explain that our precedent does not prevent us from reaching this outcome.  Nor is this outcome inconsistent with other unpublished decisions from this court. And finally, we explain that, although the Sentencing Commission’s November 1, 2023 Amendments are not binding on appeal, the Amendments support the outcome we reach today....

In deciding the same question before us, the United States Court of Appeals for the Ninth Circuit in United States v. Chen concluded that “[t]o hold that district courts cannot consider non-retroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done.” 48 F.4th 1092, 1098 (9th Cir. 2022).  We agree.  Congress has never wholly excluded the consideration of any factors. Instead, it appropriately “affords district courts the discretion to consider a combination of ‘any’ factors particular to the case at hand.” Id....

It is within a district court’s sound discretion to hold that nonretroactive changes in the law, in conjunction with other factors such as extraordinary rehabilitation, sufficiently support a motion for compassionate release. To be clear, it is also within a district court’s sound discretion to hold, after fulsome review, that the same do not warrant compassionate release. For this court to hold otherwise would be to limit the discretion of the district courts, contrary to Supreme Court precedent and Congressional intent. We decline the United States’ invitation to impose such a limitation. And, of course, district courts are now guided by the November 1, 2023 Amendments in future cases.

The dissent authored by Judge Jerry Smith starts this way:

The kindest thing I can say about the majority’s zealous1 opinion is that it is a horrifying violation of this court’s well-respected rule of orderliness. I respectfully dissent.

Are all past and present "special counsel" prosecutions now subject to new scrutiny?

I am not an expert or even knowledgeable concerning all the legal arguments that surround the appointment of special federal counsel to prosecute various notable persons under not-so-special federal criminal law.  But I do know that former President Donald Trump is not the only person currently being prosecuted by a "special counsel," and so his lawyers are not the only one sure to be reading closely this new 93-page opinion by US District Judge Cannon.  Here is the start and a portion of the introduction from her opinion:

Former President Trump’s Motion to Dismiss Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order.  The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution. U.S. Const., Art. II, § 2, cl. 2. Special Counsel Smith’s use of a permanent indefinite appropriation also violates the Appropriations Clause, U.S. Const., Art. I, § 9, cl. 7, but the Court need not address the proper remedy for that funding violation given the dismissal on Appointments Clause grounds. The effect of this Order is confined to this proceeding....

Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution?  After careful study of this seminal issue, the answer is no.  None of the statutes cited as legal authority for the appointment — 28 U.S.C. §§ 509, 510, 515, 533 — gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise. 

The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers.  The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers.  If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so.  He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.

My assumption is that the US Justice Department will appeal this ruling to the Eleventh Circuit, and that this case could (soon?) get to the Supreme Court.  But this Wikipedia entry reminds me that at least a half-dozen special counsel have been appointed over the last quarter century and have secured some (now-suspect?) convictions and sentences.   Most notably and most recently, I believe Hunter Biden's recent convictions on three counts following a jury trial were secured by special counsel David Weiss.  Hunter Biden's lawyers likely will need to consider raising Judge Cannon's opinon in some way in their work (perhaps even before the upcoming sentencing).  Moreover, if a past special counsel prosecution is now deemed unconstitutional, I would if there could be a basis for seeking to vacate past conviction in order to avoid legal collateral consequences and maybe even a basis for constitutional tort litigation. 

Of course, there are all sorts of barriers for anyone previously convicted to get the benefit of any new constitutional rulings, especially rules of procedure (which this seems to be).  Still, because every special counsel situation involves a high-profile matters, perhaps we should expect at least some high-profile echoes from this ruling even if it is swiftly appealed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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