Saturday, June 22, 2024

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

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

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

And the piece substantively begins and ends this way:

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

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

June 22, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, June 11, 2024

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

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

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

Here’s what else to know:

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

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

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

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

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

June 11, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (37)

Thursday, May 30, 2024

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 30, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (48)

Friday, May 24, 2024

"Regressive White-Collar Crime"

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

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

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

May 24, 2024 in Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, May 21, 2024

The Sentencing Project releases updated report on "Mass Incarceration Trends"

The Sentencing Project has today released this new 19-page document titled "Mass Incarceration Trends."  The report is full of data and visuals covering topic ranging from "Mass Incarceration’s Reach" to "Probation and Parole" to "Life and Long-Term Imprisonment" to "Voting Rights" to lots of topics in between.  Here is a small portion of the report's first section:

The United States is unparalleled historically and ranks among the highest worldwide in its dependence on incarceration.  Over five million people in total are under supervision by the criminal legal system.  Of these, nearly two million people, disproportionately Black, are living in prisons and jails instead of their communities.  Compare this to the figures of the early 1970s when this count was 360,000....

In 1972, the imprisonment rate was 93 per 100,000 people.  The prison population expansion that commenced in 1973 reached its peak in 2009, achieving a seven-fold increase over the intervening years.  Between 1985 and 1995 alone, the total prison population grew an average of eight percent annually.  And between 1990 and 1995, all states, with the exception of Maine, substantially increased their prison populations, from 13% in South Carolina to as high as 130% in Texas.  The federal system grew 53% larger during this five-year period alone.

The number of people in prison began a marginal decline beginning in 201013 and continued along this course for more than a decade, including a remarkable 14% decline in 2020 alone, which was principally caused by accelerated releases and reduced admissions during the first year of the COVID-19 pandemic.  The year 2022, however, marked the first year in more than a decade where the prison population rose again, by two percent, led by increases in 36 states and the federal government.  Mississippi alone raised its population of imprisoned persons 15% between 2021 and 2022.

May 21, 2024 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

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

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

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

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

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

May 21, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Sunday, May 19, 2024

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

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

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

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

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

May 19, 2024 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, May 18, 2024

"The Sense of an Ending"

The title of this post is the title of this new essay authored by Susan Bandes available via SSRN. Here is its abstract:

One of the delights of shows like HBO's Succession is the virtual communal watch party they create, replete with competing interpretations and passionate predictions about plot development.  These conversations reveal some enduring truths about the power of narrative expectations, one of which is the tremendous importance we place on the delivery of a satisfying ending.  As the influential literary scholar Frank Kermode argued, “we cannot be denied an end, but it must be the right kind of ending.”  One of the fascinating aspects of Succession was the uncertainty about what kind of ending would be satisfying.  This uncertainty seems closely tied to the difficulty in pinning down the genre to which Succession belonged.

This Essay will first examine the notion of a satisfying ending as it applies to Succession.  It will argue that although Succession’s ending was, in some ways, letter-perfect, it was not — and could not be — emotionally satisfying. The emotionally impoverished ending was fitting, but dispiriting, and probably unavoidable given the particular generic traditions upon which Succession drew.  The Essay will then pose the question: What lessons can the notion of narrative closure — the need for a satisfying ending — convey about legal proceedings? We have grown accustomed to thinking about law as storytelling, but what insights can narrative theory impart about how law stories ought to end? In legal terms, to determine what constitutes a legally satisfying end point, we first must determine what the proceeding is meant to accomplish.  Legal finality may not track literary closure or psychological “closure;” and it is important to distinguish the dictates of the legal system from the impulses that drive finality and closure in other contexts.  I will illustrate this point with examples from death penalty jurisprudence, in which the question of an ending is unavoidable and takes several forms: finality of judgment, the notion of “closure” for bereaved family members, and the loss of life.

May 18, 2024 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Thursday, May 16, 2024

"Trial Ambivalence"

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

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

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

May 16, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Thursday, May 09, 2024

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 9, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (31)

"The Blackstone Ratio, Modified"

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

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

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

May 9, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, May 06, 2024

"What is Penal Minimalism?"

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

This article provides an account of penal minimalism.  It argues that penal minimalism presents four core features. First, criminal law and the criminal legal system have a role to play in addressing culpable wrongful harm and other culpable wrongs.  Second, minimalism embraces human rights and liberal criminal law and criminal procedure rights and principles.  Third, minimalism requires that every person that is involved in or affected by the commission of culpable wrongful harm or culpable wrongs is treated as a fellow human being whose interests and well-being must be considered in deciding whether and how the criminal legal system should be used.  Fourth, minimalism embraces the last resort principle (or variations of it), which requires that criminal law and the criminal legal system should only be used as a last resort when no other social responses or public measures would suffice to adequately advance a legitimate goal, such as addressing harmful behavior.

The article also makes clear that these four features do not exhaust minimalist accounts and discussions.  Minimalist accounts can embrace a range of theories of punishment, policing, investigation, prosecution, adjudication, sentencing, and post-sentencing — though many theories about these issues are incompatible with minimalism. Minimalist accounts can also include other principles besides the four core features this article identifies, such as what this article calls the bidirectional accountability principle.  Minimalism can be combined with bureaucratic, communitarian, democratic, liberal, non-extreme versions of penal abolitionist, racial justice, reconstructivist, republican, and other accounts of criminal punishment, criminal law, and the criminal legal system.  Minimalism can also be combined with various theories of the state and of justice.  In this regard, there is not a single penal minimalism.  Rather, there are penal minimalisms.  And each and all of them have insights to contribute to discussions about how to make and strive for a fair penal system and a just society in the United States and beyond.

May 6, 2024 in Purposes of Punishment and Sentencing | Permalink | Comments (2)

Wednesday, May 01, 2024

"The Puzzling Persistence of Capital Punishment"

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

For over 250 years, Western intellectuals have been pronouncing capital punishment a barbarity doomed to be swept into the dustbin of history.  The death penalty, we have repeatedly been told, is an “anachronism” inconsistent with the spirit of the modern age — a relic that would, in a generation or two, fade away.  What is distinctive about recent decades is the confidence and monolithic quality of elite opinion, at least in the West.  There is a swelling confidence that the death penalty is, at last, at the cusp of extinction.

This Article questions the descriptive claim that the death penalty is dying, either in the United States or in the world at large.  Simply counting the number of nations that have technically abolished the death penalty fails to capture the apparent permanence of capital punishment.  Many non-Western civilizations retain the death penalty with a vigor that surprises and disappoints Western intellectuals.  And even within the United States, given the prohibitive cost of imposing a death sentence, it is remarkable how determined so many Americans are to continue to execute the worst of criminals.

As argued in this Article, the simplest answer to the puzzle of capital punishment’s persistence is that the retributive impulse is, as Justice Potter Stewart observed, “part of the nature of man.”  The answer is so obvious that what is puzzling is not the persistence of the death penalty but that some people regard this persistence as puzzling.  The dismay of modern Western intellectuals at the recurring failure of abolitionist efforts points to defining features of that intelligentsia.  Since the Enlightenment, many intellectuals have regarded nature as a weak and even nonexistent constraint on human progress.  It is from this perspective that the persistence of capital punishment, so seemingly rooted in human nature, comes to sight as such a puzzling disappointment. 

May 1, 2024 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (19)

Tuesday, April 30, 2024

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

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

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

Download Reynolds Order Redacted Filed (002)

April 30, 2024 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, April 28, 2024

"Proportionalities"

The title of this post is the title of this new essay authored by Youngjae Lee and published online in the Notre Dame Law Review Reflection. Here is its abstract:

“Proportionality” is ubiquitous.  The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history.  But that is not the only place where one encounters the concept of proportionality in law and ethics.  The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality.  Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of civilians.  Finally, constitutional theorists around the world outside the United States have been at work for decades on the principle of proportionality as a constitutional principle.  When so many different ideas come under the same label, confusion or at least ambiguity that could encourage confusion can easily creep in, which can lead to repeated mistakes and perpetuation and validation of erroneous thinking.  Accordingly, this Essay first discusses various ways in which the idea of proportionality is used in law and legal theory and documents and corrects certain misunderstandings and misleading arguments in the academic literature, particularly in the context of the Cruel and Unusual Punishments Clause of the Eighth Amendment of the United States Constitution.  This Essay then suggests that a better understanding of the term can yield new analytic and normative perspectives with which we might more effectively evaluate our current system of criminal law, policing, and punishment.

April 28, 2024 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 25, 2024

"The Relevance of State Misconduct for Mitigating Individual Punishment"

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

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

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

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

April 25, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, April 23, 2024

"What Is a Prison?"

The title of this post is the title of this new book review authored by one of my Ohio State colleagues, Grace Li, now available via SSRN. Here is its abstract:

Tommie Shelby’s 2022 book The Idea of Prison Abolition sets out to compile and rearticulate the arguments for and against prison abolition -- using Angela Davis's works as the sole source texts.  In considering the arguments, he concludes that it is not necessary to abolish prisons and instead endorses reform.

In this book review, I argue that Shelby’s most helpful contribution in the book is not his analysis of whether prisons should be abolished but rather his elemental definition of incarceration.  To know what to abolish and when we have abolished it, we need to define what we mean by "prison."  I evaluate and extend his definition by culling some elements, such that the remaining elements are: "involuntary confinement," "in an enclosed space," "away from the general public;" and adding an element, "for a continuous amount of time."  I also add to these elements a list of harms that imprisonment inevitably causes.

April 23, 2024 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (12)

Monday, April 22, 2024

"Unpunishment Purposes"

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

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

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

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

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

April 22, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Friday, April 19, 2024

Notable new commentary makes case for federal Safer Supervision Act

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

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

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

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

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

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

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

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

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

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

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

April 19, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, April 18, 2024

"The Secret History of the Carceral State"

The title of this post is the title of this new article authored by Laura Appleman recently posted to SSRN. Here is its abstract:

Profits have long played a critical role in the administration of punishment in America.  This Article provides one of the first full-length historical accounts of how the pursuit of private profits has shaped the American carceral system over time. It argues that deriving profits from punishment has been a crucial and formative aspect of American carcerality since our earliest days.  Although most scholars have focused on convict leasing in the postbellum era as the first major example of private prison profiteering, this Article shows how a predatory for-profit system of punishment well predates this, originating in the colonial era. The story of American corrections, fully told, reveals four distinct transformative periods over the nearly five-century evolution of American incarceration, ultimately explaining the condition of today’s carceral state.

In addition to providing a broader and more complete historical perspective, this Article also explains how the most recent inroads of privatized, for-profit correctional entities have overtaken the contemporary workings of the carceral system, causing chaos, abuse, and death.  The Article details the mechanisms through which seeking profits from incarceration has led to objectively worse conditions and outcomes for the punished.  Given the now widespread privatization and corporate takeover of so many aspects of the carceral state, from healthcare to food services and beyond, it is well past time to question the role of “Big Capital.”  This Article shines a light on the forgotten history of the American carceral crisis, tracing the role of profits from colonial days to the 21st century.

April 18, 2024 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Monday, April 15, 2024

"Rust" movie armorer convicted of manslaughter in New Mexico gets maximum prison term of 18 months in state prison

I asked in this post last month what folks thought would be the proper state sentence for the "Rust" movie armorer who was convicted of manslaughter in New Mexico.  This CBS News piece reports at length on the outcome of the actual sentencing (and the broader context of this high-profile case).  Here are excerpts:

The "Rust" armorer who last month was found guilty of involuntary manslaughter in the deadly shooting of Halyna Hutchins, the film's cinematographer, was sentenced in a New Mexico state court today to 18 months' imprisonment. Hannah Gutierrez-Reed received the maximum penalty for her part in the 2021 tragedy that several experts have since characterized as a preventable incident, where actor Alec Baldwin discharged live rounds from a prop gun on the movie set during a rehearsal.

Judge Mary Marlowe Sommer handed down the sentence to conclude an emotionally charged hearing Monday. "I find what you did constitutes a serious violent offense," Sommer told Gutierrez-Reed. Although the prosecution pushed for this outcome — the maximum sentence — Gutierrez-Reed and her defense team had asked the judge to consider probation as an alternative. The defendant, who is now 27, raised that request herself in a statement read in court before the sentence came down. In the statement, she called Hutchins an inspiration and said she was saddened by the media coverage of her case and the negative light in which it painted her to the public....

The prosecution had cited Gutierrez-Reed's lack of contrition during the trial as one reason to impose the maximum sentence. But her attorney, Jason Bowles, said in his final remarks at the sentencing that his client had in fact cried, broken down, experienced "mental breakdowns" and "said 'if only' many, many, many times," with that side of her remaining largely unfamiliar to people following the case....

Last month, a jury convicted Gutierrez-Reed on the involuntary manslaughter charge, brought against her by the state of New Mexico in the wake of the "Rust" shooting. The former weapons supervisor on the Western film could also receive a fine for as much as $5,000, along with prison time, at the sentencing. She had originally been charged with a second felony count by the state for evidence tampering but was acquitted at the trial.

I am not at all familiar with New Mexico's back-end release rules, so I am not sure Gutierrez-Reed will serve a full 18 months (and I believe she has already been in custody for a month). But I am sure this case serves as an intereting reminder that maximum sentencing terms can sometimes prove as consequential as minimum sentencing terms.

April 15, 2024 in Celebrity sentencings, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (7)

Tuesday, April 09, 2024

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

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

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

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

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

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

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

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

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

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

April 9, 2024 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (19)

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

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

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

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

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

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

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

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

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

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

April 9, 2024 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, April 04, 2024

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

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

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

April 4, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Prosecutors seek (above-guideline) sentences of at least 10 years for Crumbley parents after state manslaughter convictions

As discussed in this CNN piece, "Michigan prosecutors are asking a judge to sentence the parents of school shooter Ethan Crumbley to at least 10 years in prison, alleging they have both showed a 'chilling lack of remorse' after they were convicted for involuntary manslaughter." Here is more:

In two separate sentencing memorandums dated April 3, Oakland County prosecutors asked the judge to sentence each parent to 10 to 15 years in state prison. The prosecutors allege Crumbley’s father has repeatedly threatened Prosecuting Attorney Karen McDonald and has said “there will be retribution,” while the mother has asked to serve her sentence under house arrest in her defense attorney’s home.

James and Jennifer Crumbley were both found guilty on four counts of involuntary manslaughter in two separate trials this year for their roles in their son’s mass shooting at Oxford High School on November 30, 2021. Jurors found they were both grossly negligent in allowing their teenage son to have a gun and ignoring signs of his spiraling mental health. Ethan, who was 15 at the time, killed four classmates – Madisyn Baldwin, 17; Tate Myre, 16; Hana St. Juliana, 14; and Justin Shilling, 17 – and injured seven other people.

His parents have been behind bars since they were arrested in December 2021 at a Detroit warehouse after leading authorities on a manhunt following the school shooting. They are scheduled to be sentenced on Tuesday. Shannon Smith, Jennifer Crumbley’s defense attorney, did not comment when reached by CNN. CNN also reached out to an attorney for James Crumbley but has not heard back. Defense pre-sentencing submissions have not yet been filed on the public dockets.

In a rare move, prosecutors released excerpts of the pre-sentencing investigation reports publicly, and included statements from both defendants written after jurors found them culpable for the killings. In the prosecution’s sentencing memorandum for James Crumbley, prosecutors noted “his jail calls show a total lack of remorse, he blames everyone but himself, and he threatened the elected Prosecutor.” They also note the father has repeatedly said he is being persecuted and has referred to himself as a “martyr.”...

In the sentencing memorandum for Jennifer Crumbley, prosecutors pointed to statements she made on the stand during her trial, where she testified, “I’ve asked myself if I would have done anything differently, and I wouldn’t have.”...

In her pre-sentence report, Jennifer Crumbley acknowledged she testified she wouldn’t have done anything different but said “that is true without the benefit of hindsight that I have now.”...

Jennifer Crumbley asked that she be placed under house arrest in her defense attorney’s home, according to prosecutors.  Smith, her attorney, notified the court that Crumbley could stay in her guest house for the duration of her sentence, according to the memorandum. “Such a proposed sentence is a slap in the face to the severity of tragedy caused by defendant’s gross negligence, the victims and their families, and the applicable law that is premised on the concept of proportionate sentencing.”

Prior related post:

April 4, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (19)

Sunday, March 31, 2024

"Shocking Sentences"

The title of this post is the title of this new article authored by John B. Meixner Jr. now available via SSRN. Here is its abstract:

Harsh recidivist sentencing penalties, like three-strikes laws, have been criticized heavily among both academics and practitioners on a number of different grounds.  Most arguments focus on how sentences arising from these penalties are disproportionate — that there is no sensible relationship between the wrong committed and the sentence imposed. Those critiques are valid, but there’s another important problem with recidivist sentencing penalties that has been overlooked: they lead to sentences that are totally unexpected — indeed, shocking — to the defendants who face them. Many recidivist sentencing penalties cause large leaps in sentencing exposure that amount to exponential growth when compared with a defendant’s prior sentences.

We can better understand the problem of shocking sentences (and how to solve it) by understanding the psychological phenomenon that likely causes it: the exponential growth bias.  Across a number of domains, people making quantitative decisions tend to presume linear growth will occur, even in light of evidence that the growth is exponential.  I argue that this phenomenon happens in sentencing as well, and explains — at least in part — why defendants don’t anticipate these types of sentences.

Understanding the psychological underpinning of shocking sentences helps us understand why they are harmful: they undermine due process and predictability in the law, they limit potential deterrence, and they’re out of line with everyday intuitions about sentencing.  Flatly, they’re bad sentencing policy, and we should reduce them or eliminate them outright.  But even if eliminating shocking sentences is politically untenable, there may be ways to reduce the effect of the exponential growth bias.  Applying lessons learned from the psychological literature, I suggest ways to provide increased notice of recidivist sentencing provisions aimed to make them less shocking.

March 31, 2024 in Offender Characteristics, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (7)

Thursday, March 28, 2024

"Towards a Federalism(s) Framework of Punishment"

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

Federalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies.  In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bi-partisan push to punish.  Consequently, this modern cooperative era of federalism has served to facilitate mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda.

This Article argues for a new conception of punishment that forms important synergies within a redesigned federalism system.  The core principle that connects punishment and federalism theory is their impact on the liberty interests of the individual.  This Article builds on this unifying principle of liberty to constrain cooperative criminal federalism from abusing its power and over subscribing to carceral punishments.  These unique tools that merge federalism and punishment theories form the federalism(s) framework of punishment, which leads to a set of policy outcomes in which the federal and state governments conflict, cooperate, and coordinate in different contexts with the goal of fully appreciating the liberty interests of the offender while increasing public safety.

March 28, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Monday, March 25, 2024

"Punishment as Placebo"

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

The modern criminal punishment regime has failed to deliver on its promise of public safety.  For all of the resources expended and all of the human costs incurred, the ever-growing carceral state does not make us safer.  Scholars across the social sciences have studied these shortcomings for decades using various methodologies.  The burgeoning prison population has little relation to the crime rate, which advocates have argued supports decarceration efforts to remedy the inefficiency, inequality, and subordinating effects of harsh sentencing policies and institutional design choices that have supported the mass incarceration crisis.  What then justifies the continued propagation of this failed regime?

This Article proposes a new balancing of considerations to answer this question that innovates punishment theory through the medical and experimental lens of placebos.  The efficacy of policy must be balanced with its public perception; thus, a policy may not be effective at fixing a problem, but this is often less important than the perception of the policy.  A medical placebo treatment may be physiologically inert, but it still can have a positive psychological and therapeutic impact by making the patient feel better because they think they are receiving effective treatment.  In the same way, the cultural value of mass incarceration extends beyond its failed effectiveness by providing psychological and therapeutic value to help the public cope with their fear of crime, their moral commitments to justice, and their socialized feelings towards offenders.

This placebo methodology offers several unique insights about punishment theory and practice that learn from the extensive medical research and ethics literatures.  By viewing punishment as a placebo, the modern punishment regime must confront unique questions concerning the social harm of punishment, the justifications for public deception, the ethics of experimentation, and the perverse economics of inefficacy.  These theoretical synergies also provide practical insights into how to reverse and regulate such placebo punishments while focusing on a more humane and ethical punishment future.

March 25, 2024 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

Sunday, March 24, 2024

"Dimensions of Prosecutor Decisions: Revealing Hidden Factors with Correspondence Analysis"

The title of this post is the title of this new article now available via SSRN and authored by Megan S. Wright, Cindy Cain and Shima Baradaran Baughman. Here is its abstract:

Despite the significant impact of prosecutorial discretion on criminal justice outcomes, there are very few large-scale studies of state and local prosecutor decision-making.  Our previous empirical research demonstrated that a defendant’s race and class do not affect prosecutorial charging decisions and revealed a gap in the literature about factors that do influence prosecutorial charging decisions and sentencing recommendations.  Accordingly, we designed a study to obtain more information about prosecutor discretion and decision-making. 

Over 500 prosecutors from across the United States completed our vignette-based experiment and survey, which produced quantitative and qualitative data.  We transformed these data to use Correspondence Analysis (CA), an empirical method that allowed us to identify associations between prosecutors’ charging decisions and sentencing recommendations for a hypothetical defendant and the prosecutors’ individual characteristics, office and jurisdiction characteristics, and the factors they described as important to their decision-making.  Our analysis shows two dimensions of prosecutor decisions — Punitive vs. Therapeutic Sentence and Most Severe Criminal Record vs. Least Severe Criminal Record — and we mapped the prosecutor decisions onto these dimensions.  Our results also reveal factors associated with prosecutor decisions about charges and whether to (i) defer prosecution or suspend sentences, (ii) recommend a monetary penalty, (iii) recommend a term of confinement, or (iv) seek alternative sentences, and we discuss these findings in the context of effects on recidivism.

March 24, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Friday, March 15, 2024

Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried

The federal court in the Southern District of New York is scheduled, in less than two week, to sentence Sam Bankman-Fried following his trial conviction on multiple fraud charnges.  A few weeks ago, as noted here, SBF's lawyers submitted a lengthy sentencing memo arguing that his advisory guideline range is 63-78 months that that "a sentence that returns Sam promptly to a productive role in society would be sufficient, but not greater than necessary, to comply with the purposes of sentencing."  

Unsurprisingly, federal prosecutors have a different sentencing perspective.  And, in the run-up to the March 28 sentencing, it has not filled this even longer sentencing memorandum.  The argue that SBF's guideline range is literally off the charts:

Based on the foregoing, the adjusted offense subtotal is 60.  Because any offense level in excess of 43 is treated as an offense level of 43, 43 is the total applicable offense level. (PSR ¶ 89).  The defendant’s criminal history score is zero, which puts him in Criminal History Category I. (PSR ¶ 92).  Based upon these calculations, Bankman-Fried’s advisory Guidelines imprisonment range is life. (PSR ¶ 129).  However, because the statutorily authorized maximum sentence is 110 years’ imprisonment, which is less than life imprisonment, the applicable Guidelines sentence is 110 years’ (1,320 months) imprisonment. U.S.S.G. §§ 5G1.1(a), 5G1.2(d)

Notably, though, federal prosecutors do not ultimately advocate for a sentence of imprisonment for 110 years for SBF.  As explained at the end of its preliminary statement, the feds think that less than half of this term will do the trick:

The scope, duration, nature, and sheer number of Bankman-Fried’s crimes, the resulting harm they have caused, the willful disregard of the rule of law, and the absence of countervailing mitigating circumstances render him exceptionally deserving of a sentence that is sufficiently severe to provide justice for the defendant’s crimes and to dissuade others from committing similar crimes, and that will permit the defendant to return to liberty only after society can be assured that he will not have the opportunity to turn back to fraud and deceit.  Although it is unlikely (but not impossible) that the defendant will work in finance again, and will likely forfeit all of his ill-gotten gains, justice requires that he receive a prison sentence commensurate with the extraordinary dimensions of his crimes.  For these reasons, the legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment.

Because a "split the difference" approach often serves as a reasonable first guess for a contested sentencing outcome, I am tempted to put the over/under for an imprisonment term here at 25 years.  I am not familiar enough with Judge Lewis Kaplan's sentencing history to make a bolder prediction; folks in the comments are certainly welcome to do so.

Prior related posts:

March 15, 2024 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (10)

Thursday, March 14, 2024

"Toward a Better Criminal Legal System: Improving Prisons, Prosecution, and Criminal Defense"

The title of this post is the title of this new piece available via SSRN from David A. Harris.  Here is its abstract:

During the Fall 2023 semester, 15 law (Outside) students from the University of Pittsburgh School of Law and 13 incarcerated (Inside) students from the State Correctional Institution – Greene, in Waynesburg, Pennsylvania, took a full semester class together called Issues in Criminal Justice and Law.  The class, occurring each week at the prison, utilized the Inside-Out Prison Exchange pedagogy, and was facilitated by Professor David Harris.  Subjects include the purposes of prison, addressing crime, the criminal legal system and race, and issues surrounding victims and survivors of crime.  The course culminated in a Group Project; under the heading “improving the criminal legal system,” students selected the topics of improving prisons, improving prosecution, and improving criminal defense.  The frame of “improving” these aspects of the system marked a deliberate choice; while many members of the class argued that the system as a whole or particular parts of it were beyond redemption, the task was to find ways to address the most egregious shortcomings as the systems currently exist.

This paper represents the ideas and approaches that all of the members of the class proposed, explored, and hammered out across weeks of work together.  Were all of the suggestions here to be implemented, the class concedes that the system would not be even close to perfected.  But the class believes these suggestions would result in considerable improvement, a more humane system, and a greater degree of fairness.

March 14, 2024 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (11)

Sunday, March 10, 2024

"Mercy in Extremis, In-Group Bias, and Stranger Blindness"

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

Our perceptions of what we owe each other turn somewhat on whether we consider “another” to be “an other” — a stranger and not a friend.  In this essay, I examine the pronounced role that such in-group biases play in two distinct contexts.  First, in a legal order, officials tend to prioritize the norms and forms of the profession.  This institutional pride generates a lack of understanding for the actor or approach that operates beyond the bounds of the criminal legal system’s binary rules.  To the law enforcer, all becomes law and outlaw where the outlaw is a threat that must be neutered by punishment.  Second, in extremis, individuals fear outsiders and treat them, thereafter, with apathy or even outright animosity and violence.  In each context, in-group biases challenge epistemic capacities to determine appropriately when mercy and care are warranted.

To illustrate the difficulty, I interweave three case studies — one contemporary, one biblical, and one literary. I focus principally on tragic events at Memorial Medical Center in New Orleans where, in the aftermath of Hurricane Katrina, hospital staff likely euthanized acutely ill patients. I then draw upon “The Parable of the Good Samaritan” and Cormac McCarthy’s post-apocalyptic masterpiece, THE ROAD, to inform my reading of the murder case against a Memorial doctor. I argue that it is not obvious who at the medical center failed to be sufficiently “other”-regarding and, in any event, the criminal legal system is particularly ill-equipped to address the moral complexities of actions (and inactions) undertaken in extreme circumstances.  I conclude that the grand jury therefore did the right thing when it relied upon something like a “presumption of mercy” to refuse to indict the doctor.

March 10, 2024 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

Friday, March 08, 2024

"Rule Complexity, Story Complexity, Mercy & Hope"

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

Criminal Law is about rules and stories.  This article is about how those two things — rules and stories — intersect, tangle up, and oppose one another, a dance that shapes the way we limit the freedom of others through the processes of criminal law.  In very broad strokes, rule complexity is a tool of power and a driver of incarceration, while story complexity more often offers mercy and hope for those subjected to the criminal justice system.

March 8, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, March 07, 2024

Some notable developments and commentary on Sam Bankman-Fried's coming sentencing

Sam Bankman-Fried is scheduled to be sentenced three weeks from today, and his sentencing memo filed last week has already generated considerable comments (some covered here).  As we await the government's filing next week, I have seen a few recent notable developments and commentary that seemed worth flagging here (with links from the original):

From CoinPedia, "Sam Bankman-Fried Fights for Leniency: Will He Face 100 Years in Prison?".  An excerpt:

In an unexpected turn, a compelling letter has been submitted, urging Judge Kaplan to take a firm stance against leniency for Sam Bankman-Fried (SBF), co-founder of FTX. Emotions run high as the letter passionately argues against what it sees as “intellectual dishonesty” in pleas for leniency, especially regarding possible reimbursements for account holders.  The letter, written by a CBOE member on behalf of a market maker firm, sharply criticizes SBF’s alleged financial misconduct, describing a situation where funds are claimed to be stolen, gambled, and only partially recovered.

From Puck, "S.B.F.’s Sentencing Game Theory: Bankman-Fried’s lawyers appear to be setting the stage to appeal his sentence—and potentially redefine the definition of fraud, itself."  An excerpt:

Even if the six-year bid doesn’t sway Kaplan himself, its real purpose is likely to set the appellate stage — where Bankman-Fried will argue he was denied a fair trial when Kaplan prevented him from presenting his honest intentions with FTX.  As a fallback, he’ll attempt to convince the higher-ups to take a “textualist” approach to criminal sentencing.

From Slate, "The FTX Saga Twist That Might Save SBF in Sentencing: He could still get up to a century in prison."

So, to recap: In Bankman-Fried’s favor, it looks like his crimes may not wind up wiping out thousands of investors. But working against him is a long pattern of behavior that seems designed in a lab to infuriate a judge, who may also choose to lean on a presentencing report that says to throw the book at Bankman-Fried. “I think it’s hard to predict, but I’d be surprised if it weren’t a significant sentence,” [former AUSA Rachel] Maimin said.  Bankman-Fried is in danger of learning that there isn’t exactly a good way to come up for sentencing on seven federal felonies."

Prior related posts:

March 7, 2024 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, March 06, 2024

USSC hearings on acquitted conduct: the devilish details amid a fundamental criminal process debate

I was only able to listen to some of the 4+ hours of testimony and discussion today about acquitted conduct sentencing at the US Sentencing Commission, which is only on day one of its extended hearings regarding its proposed amendments to the US Sentencing Guidelines.  This USSC hearing page now has the written testimony of all 15 persons who appeared before the Commission to discuss acquitted conduct, and those fascinating written submissions capture much of the diversity and divergence in the views expressed on this long-simmering (long-boiling?) federal sentencing issue. 

As I listened to the public hearing, the testimony and discussion with Commissioners reinforced for me all the delivish details that necessarily arise in trying to define acquitted conduct, and in trying to develop clear sentencing rules concerning when and how such conduct should or should not be considered at sentencing.  Long-time readers know that I have long been troubled by sentence enhancements based on acquitted conduct, though I have also long recognized how challenging it can be to write sound and effective sentencing rules in this space.  Indeed, as the USSC hearing explored many of the delivish details today, it was clear how acquitted conduct's intricacies may largely explain why past Commissions have avoided these issues as a policy matter and why the US Supreme Court avoided these issues as a constitutional matter since its 1997 Watts decision.

And yet, while today's hearing made acquitted conduct complications ever so salient, it also help remind me that the issue is really just a variation on a criminal process debate well articulated 60 years ago by Herbert Packer in his classic "Two Models of the Criminal Process."  Prof Packer famously wrote about two criminal process models — that is, "two separate value systems that compete for attention in the operation of the criminal process" — in the form of "the Due Process Model and the Crime Control Model."  Though perhaps trite and obvious to many, today's USSC discussion highlighted for me how advocates for limits on acquitted conduct sentencing are often giving voice, in one way or another, to the Due Process Model while defenders of acquitted conduct sentencing are humming a variation on the Crime Control Model tune.

In addition (and perhaps providing just another take on the same point), I was reminded today of my colleague Alan Michaels' terrific 2003 article on "Trial Rights at Sentencing."  Though Prof Michaels only looks at Supreme Court jurisprudence regarding defense rights in that article, he usefully describes and summarizes his accouting of SCOTUS rulings this way:

Rights directed at a balanced and thorough process — in other words, rights that support accuracy concerns or that tend to put the prosecution and defense on a more even playing field — do apply at sentencing.  Rights that offer the defendant special protections — such as those that automatically resolve errors in the defendant's favor or primarily protect the defendant's autonomy — do not apply at sentencing. 

Framed only a bit differently, one might see concerns for sentencing "accuracy" to be a kind of Crime Control concern, and one that would counsel against preventing judicial consideration of acquitted conduct.  But the jury trial right is fundamental to our nation's vision of Due Process and our commiement to "defendant special protections," and that's surely why many are troubled by any judicial sentencing process that functioanlly disregards a jury's decision to acquit on certain charges.

Of course, Prof Packer stressed his "polarized models" are archtypes that do not capture the "conflicting schemes of values" that so many embrace.  Indeed, I suspect most everyone is eager to pursue both crime control and due process; and yet, a hard topic like acquitted conduct sentencing may require marking a hard choice about which models and values to prioritize.  It will be very interesting to see where the USSC winds up in this amendment cycle.

March 6, 2024 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (23)

Wednesday, February 28, 2024

"Reviving Rehabilitation as a Decarceral Tool"

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

After advocates argued that circumstances attendant to late adolescent offenders make them less culpable for their offenses and better disposed for rehabilitation, the Massachusetts Supreme Judicial Court (SJC) held in January that it is unconstitutional to sentence 18 through 20 year olds to life without parole.  Last summer, Connecticut passed legislation providing a “second look” opportunity for parole to those incarcerated for lengthy prison sentences for crimes that they committed before they were twenty-one years old.  In 2021, Rhode Island decreased the amount of time that youthful offenders must serve before they become eligible for parole, but its highest court is currently interpreting disputed provisions.  Efforts to reduce lengthy sentences for late adolescents are grounded in scientific literature showing that “emerging adults” have great propensity for rehabilitation, rendering extraordinarily long prison sentences inappropriate.

Recently, national conversation has focused on reducing the front-end of incarceration, by shrinking police presence and decriminalizing drug and other nonviolent crimes.  Back-end decarceral efforts — so called “second look” sentencing and clemency initiatives — are either underappreciated or derided as reforms that legitimate a fundamentally unjust system.  While I embrace the need to significantly shrink the quantity of people in prison, sentencing reforms for emerging adults can meaningfully reduce our carceral footprint. Also, disproportionality by race in extreme sentencing suggests that late adolescents are particularly likely to be sentenced based on systemic racism and implicit biases in policing, prosecution, and sentencing, rather than unique characteristics or facts of their crimes.  Thus, effective “second look” efforts have the potential to address racial inequities.

This essay explores three state efforts to reduce the carceral terms of late adolescents, evaluating the advocacy strategies and compromises made to achieve meaningful reform. The Supreme Court recognizes that minors are less culpable, less deterrable, and more capable of rehabilitation than adults.  Significant research supports extending these findings to “emerging adults” — individuals under the age of twenty-five years old.  Should this rehabilitative lens, grounded in science, be effectively harnessed to the “back-end” reforms focused on those who commit crimes prior to the age of twenty-five, the potential decarceral effects can be widespread.  In the area of emerging adults and serious crime, criminal law minimalism means coupling the science about late adolescents with effective advocacy strategies to reduce our carceral population.

February 28, 2024 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"

For a number of reasons, I always find white-collar sentencings to be fasciniating, and the scheduled sentencing next month of Sam Bankman-Fried is already fitting that characterization.  The latest development in the run-up to the March 28 sentencing comes in the form of SBF's lawyers submitting late yesterday this 90-page sentencing memo.  This document assails many aspects of how the probation office calculated the applicable guideline range and makes an array of arguments based on all the 3553(a) sentencing factors.  This lengthy document concludes with this paragraph that is titled "Sam Bankman-Fried's Sentencing Request":

Sam Bankman-Fried respectfully submits that, for the reasons set forth above, an appropriate method of arriving at a just sentence would be to consider the Adjusted Offense Level (Subtotal) of 56, reduced by 30 levels based on zero loss, which yields an advisory Guidelines range of 63-78 months.  When the § 3553(a) factors are considered, including Sam’s charitable works and demonstrated commitment to others, a sentence that returns Sam promptly to a productive role in society would be sufficient, but not greater than necessary, to comply with the purposes of sentencing.

Here are a variety of press accounts of this sentencing filing and some related SBF activity:

From Business Insider, "Sam Bankman-Fried's lawyer says sentencing the FTX founder to a 100-year prison term would be 'grotesque' and 'barbaric'"

From CoinPedia, "SBF Fights for Crypto Fraud Leniency: 6 Years vs. 110?"

From the New York Times, "Sam Bankman-Fried Makes His Last Stand: Since the disgraced crypto mogul was convicted of fraud, his supporters have maneuvered to secure a lenient sentence, with his lawyers recommending he serve no longer than 6.5 years in prison"

From the Wall Street Journal, "Sam Bankman-Fried Calls for Shorter Prison Sentence, Citing Autism: Lawyers for the FTX founder say he wasn’t motivated by greed but by a desire to better the world through philanthropic giving"

Prior related posts:

February 28, 2024 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (6)

Sunday, February 25, 2024

"Criminal Law Minimalisms"

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

What is criminal law minimalism?  At first blush, it appears to be the sober and sensible cousin of abolition.  Where the language of abolition is radical and absolute, the language of minimalism speaks to moderation, pragmatism, and nuance.  While I appreciate calls for nuance, I’m not sure that minimalism offers the clarity it promises or answers the hard questions about how to address the ills of the U.S. criminal system.

As a theory or label, minimalism raises two major questions: (1) a question of scope; and (2) a question of scale.  On the question of scope, what exactly should be minimized?  The number of criminal laws?  The severity of criminal punishment?  The extent of policing?  The presence of criminal and quasi-criminal institutions of social control? The prevalence of punitive cultural impulses?  Something else?  On the question of scale, what does minimalism mean? Arguing that society should use criminal law and punishment as little as possible raises the important question of how we know what the minimally acceptable amount of criminal law is.  Without a shared understanding of what criminal law is supposed to do, how do we know what properly functioning minimalism looks like?  Depending on one’s normative vision for criminal law, minimalism could involve a radical project of decarceration, decriminalization, and de-policing.  Or, it could involve a slight recalibration of the status quo.

In this Essay, I raise these questions as they pertain to the minimalist project.  If “criminal law minimalism” is to be taken seriously as a theoretical alternative to both abolition and conventional reform, it is necessary to understand what minimalism entails or what it offers us.  And, that means answering — or at least grappling with — these fundamental questions of scope and scale.  Instead of a coherent theory of criminal law minimalism, I see a range of different criminal law minimalisms, reflecting a range of focal points, ideological projects, and first-order commitments.  In this Essay, then, I begin to tease apart different possible minimalisms and what they might tell us about defensible or desirable criminal policy.

February 25, 2024 in Purposes of Punishment and Sentencing | Permalink | Comments (2)

Thursday, February 22, 2024

"Decriminalizing Condemnable Conduct: A Miscalculation of Societal Costs and Benefits"

The title of this post is the title of this new paper authored by Paul Robinson and Jeffrey Seaman now available via SSRN. Here is its abstract:

Criminal law distinguishes itself from other bodies of law by focusing on conduct the community sees as sufficiently condemnable to deserve stigmatization and punishment.  Unfortunately, a number of recent practices serve to effectively decriminalize conduct even though the community sees it as criminally condemnable.  This Article examines this understudied phenomenon, with an assessment of the societal costs and benefits from such decriminalizations.

Decriminalization can occur through a variety of mechanisms.  Prosecutors or other local officials rejecting legislative criminalization decisions can effectively decriminalize by prohibiting arrest or prosecution of certain offenses – e.g., drug possession, lower-level theft, domestic violence, immigration offenses – or of offenses committed by certain groups – e.g., rioters or statue vandals motivated by a cause the officials support.  State legislators and even voters in state referendums can (often unknowingly) effectively decriminalize conduct that the community sees as criminally condemnable – e.g., supporting a public referendum to reduce the grade of lower-level theft without realizing that, because of other provisions, it effectively decriminalizes the conduct.

The Article identifies four common motivations for such decriminalizations.  First, the decriminalization may come from an anti-justice motivation, where the decriminalizer believes that crime ought to be dealt with as a medical, mental health, or social services issue, rather than through the justice system.  Second, the decriminalization may be motivated by a desire to reduce the sanctions that would otherwise be imposed upon a group seen as “oppressed.” Third, many decriminalizers see themselves as having superior moral judgment about what should and should not be seen as criminally condemnable.  Finally, some decriminalizers believe that their locale, rather than the larger jurisdiction, ought to have criminalization-decriminalization power even though the state or federal constitution allocates that authority otherwise.  Decriminalizers may be motivated by any one or combination of these motivations.

After reviewing the societal benefits that are claimed to follow from the various justifications for decriminalizing what the community sees as condemnable, the Article examines the societal costs, including the loss of deterrence from the announced policy, the loss of incapacitation of repeat offenders, the reduction in the criminal law’s moral credibility by refusing to treat as criminal conduct that the community sees as criminally condemnable, and the reduction in the criminal justice system’s legitimacy when ideological bias is seen as influencing prosecution decisions.  Perhaps the most unfortunate societal cost is that the resulting increases in crime are disproportionately borne by vulnerable minority communities, even though many decriminalizers claim to be motivated by a desire to help those same communities.

On the other hand, the societal costs of such decriminalizations also apply in reverse situations of over-criminalization.  To avoid those societal costs, the criminal law must enlarge its current justification and excuse defenses, as well as mitigations, to reflect the greater breadth that empirical research shows that ordinary community members would support, which in many instances provides defenses even broader than the common modern formulations taken from the Model Penal Code.  However, that expansion of defenses ought not extend to ideologically driven excuses like “rotten social background,” as some have advocated, usually for the same motivations that drive improper decriminalizations.

This same societal cost-benefit analysis also means that just as criminally condemnable conduct should not be decriminalized, conduct that is no longer criminally condemnable should be decriminalized if the criminal law is to maintain its moral credibility and legitimacy.  For example, adultery ought to be officially decriminalized where it remains an offense, and, of more immediate relevance, private marijuana use ought to be decriminalized as soon as community views have shifted to the point that it is no longer seen as criminally condemnable, a shift that has already occurred in much of the country.

Ensuring that the criminal law tracks society’s criminalization-decriminalization judgements should not be controversial in a democratic society, and this Article argues for a fair and consistent application of that principle to all areas of criminal law.

February 22, 2024 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, February 20, 2024

"The role of character-based personal mitigation in sentencing judgments"

The title of this post is the title of this new article authored by Ian Belton and Mandeep Dhami recently published in the latest issue of the Journal of Empirical Legal Studies.  Here is its abstract:

Personal mitigating factors (PMFs) such as good character, remorse and addressing addiction help sentencers evaluate an offender's past, present and future behavior.  We analyzed data from the 2011–2014 Crown Court Sentencing Surveys in England and Wales to examine the relationship between these PMFs and custodial sentences passed on assault and burglary offenses, controlling for other sentencing relevant factors.  Beyond revealing the distribution and co-occurrence of the three PMFs, it was found that good character, remorse and addressing addiction all had a significant mitigating effect.  The effects of addressing addiction were the strongest of the three across both offense types, while good character had a stronger effect on burglary than assault.  In addition, some mitigating factors appear to be underweighted when they occur together.  We consider the implications of these findings for sentencing policy and practice.

February 20, 2024 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Monday, February 19, 2024

"Rethinking Children, Crime and Culpability"

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

In the early twenty-first century, the United States Supreme Court developed a rich body of case law that recognized the constitutionally significant differences between children and adults.  The core of this case law, often referred to as the Miller trilogy, banned capital punishment for juvenile crimes and significantly limited instances when states can impose life without parole on minors.  By leveraging the logic and science of the Miller trilogy, lower courts and state actors have implemented juvenile justice reforms on issues ranging from legal representation and transfer laws to conditions of confinement and parole practices.  This Article makes a novel and important argument that flows from the Miller trilogy but that has been under-theorized to date.  Specifically, in this Paper I argue that all of the ways in which children are different according to the Court -- their immaturity, their impulsivity and their inability to remove themselves from criminogenic environments -- are relevant to a criminal conviction just as much as they are relevant to punishment. 

The Paper proceeds in four Parts.  Part I discusses Miller’s legacy and its already vast implications nationwide. Parts II and III are the heart of the Paper, where I set forth my central claim: that Miller’s legacy demands nothing short of a wholesale reconsideration of substantive criminal law as applied to children.  Part II articulates the first principles of this theory in the context of the state’s burden to prove the elements of a crime, while Part III theorizes how defendants may leverage the defining features of youth when mounting affirmative defenses.  Part IV addresses likely conceptual and implementation-related concerns, and by way of Conclusion, I suggest that rethinking children’s culpability, rather than tinkering with their sentences, may be the most important and lasting legacy of the Miller trilogy.

February 19, 2024 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4)

Friday, February 16, 2024

Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried?

The question in the title of this post is prompted by this new CoinDesk article headlined "Sam Bankman-Fried's Sentence Might Be Lighter Than You'd Expect."  Here are excerpts:

Former FTX boss Sam Bankman-Fried (SBF) may be handed a lighter sentence than otherwise when he faces District Judge Lewis A. Kaplan next month because customers of the bankrupt exchange will probably be made whole thanks to a bounce in crypto markets and the buoyancy of certain investments held by the estate.

Bankman-Fried was found guilty of fraud in November 2023, about a year after his crypto trading empire collapsed. During the bankruptcy process, the crypto market has risen sharply -- CoinDesk Indices' CD20 gauge has gained more than 130% -- meaning many thousands of hapless creditors are going to receive all the funds they had locked in, albeit at November 2022 prices.  In July last year, the bankruptcy team said customers were owed $8.7 billion.

The jump in crypto markets matters because restitution can be taken into account for sentencing.  For example, for low losses, the guidelines suggest a range of 24-30 months.  A high-loss amount, in contrast, could lead to a draconian range of upwards of 20 years’ imprisonment, or even life, according to Jordan Estes, a partner at the New York City office of law firm Kramer Levin. “I would expect the loss amount to be hotly contested at sentencing,” said Estes, a former assistant U.S. attorney who co-led the general crimes unit in the Southern District of New York, where the trial took place.  “In particular, the defense may argue for a substantially lower loss amount, or even a loss amount of $0, if all customers and creditors will be made whole,” she told CoinDesk via email.

That said, the U.S. sentencing guidelines that give defendants credit for amounts returned to victims apply only when the return took place before the offense was detected.  In this case, it’s clearly not SBF who is giving the money back, and the payments come well after discovery of the offense.  A possible parallel is the case of fraudulent financier Bernie Madoff, who died in prison at the age of 82 while serving a series of consecutive sentences that ran to 150 years. In Madoff's case, the bankruptcy trustee also recovered large sums of stolen money, but he didn't receive any credit for that.

Prior related post:

UPDATE: In the comments, Professor Todd Haugh flagged his recent LinedIn posting discussing these issues.  Here is how his discussion concludes:

In the federal system, the sentencing range applicable to an economic offender like SBF is heavily determined by the loss amount. The higher the loss, the higher the sentencing range, and the higher the eventual sentence (even though judges don't have to follow the range they are anchored by it).

You might ask (as DealBook does), if customers are made whole and there is no loss, doesn't that help SBF at sentencing?  You would think, except sentencing loss isn't loss like we think of it -- it's actual or intended loss according to the Sentencing Guidelines and most caselaw.  So even though Ray found all the money and there may be very little actual loss, SBF's fraud caused an intended loss of about $8B.  That's the number that will set the loss amount regardless of how much is recovered for customers (subject to a lot-and I mean a lot-of argument between prosecutors and SBF).

But what about the "sort of" part?  Even though the intended loss is what it is, because the guideline range is only advisory, Judge Kaplan can ignore it and impose a lower sentence. That almost always happens in high loss white collar cases because the loss amounts push the sentencing ranges to outlandish heights.  And when the judge is considering how low to go, he's going to be considering that "actual loss" amount, which may be $0 here.

It's not a get out of jail free card, but it matters.

February 16, 2024 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Tuesday, February 13, 2024

"Principles of Prosecutor Lenience"

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

Once “the Darth Vader of academic writing,” American prosecutors are making a comeback.  In recent years, “progressive prosecutors” have leveraged the power of lenience to “reform the criminal justice system from the inside.”  There is so much scholarly enthusiasm for this project that the existing commentary can be summarized as offering a one-word principle to govern considerations of prosecutorial lenience: “yes.”

But American criminal law covers a broad array of offenses with substantial differences in punitiveness across jurisdictions and courts.  Even harsh critics of the system’s severity tend to pivot when it comes to certain offenses, like crimes committed by police.  Consequently, there are profound questions about the when and why of lenience, and particularly prosecutor lenience.

This Symposium Essay offers a skeletal framework for evaluating prosecutor lenience. It defines prosecutorial lenience and proposes three principles to guide its exercise: prosecutor lenience should be (1) non-arbitrary, (2) equal, and (3) abundant.  It then applies the principles in common prosecutorial lenience scenarios, like insufficient evidence, justice-based lenience, transactional lenience, triage, nullification, and mercy. Interestingly, the analysis reveals that, in some circumstances, the principles conflict.  Perhaps most significantly, insisting on the first two principles can jeopardize the third.  This means that prosecutors, and their critics, will have to consider not just the overall desirability of lenience, but tradeoffs between the quality of prosecutorial lenience and its quantity.

February 13, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10)

Tuesday, February 06, 2024

"The Limited Moral Relevance of Pleas and Verdicts"

The title of this post is the title of this book chapter recently posted to SSRN and authored by Adam J. Kolber.  Here is its abstract:

Pleas and verdicts dramatically affect our moral assessments of defendants even when they add no new information about underlying evidence.  People often perceive defendants differently just prior to a verdict relative to just after, even when they know the underlying facts as well as jurors do.  We seem to give pleas and verdicts moral significance that outstrips their epistemic significance.

In this chapter, I argue that pleas and verdicts have less moral significance than we often ascribe to them.  While we sometimes give conviction a kind of magical significance, pleas and verdicts usually only provide modest morally-relevant information at least to those closely following a case.  Though some communicative theories of punishment ascribe special non-instrumental symbolic meaning to conviction, what I call the “radical indeterminacy of punishment severity” undermines the ability of pleas and convictions to accurately communicate amounts of condemnation.

February 6, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, January 31, 2024

New stories suggesting that new west-coast legal approaches failing in face of scourge of fentanyl

A couple of notable press pieces this morning highlight data and developments indicating that the harms of the fentanyl crisis are growing in two notable jurisdictions that have been pursuing less punitive approaches to drug policy.  First, news from Oregon:

"In downtown Portland’s fentanyl crisis, Oregon leaders declare emergency"  Snippets:

Multnomah County, the city of Portland and the state of Oregon are embarking on a 90-day experiment to address downtown Portland’s fentanyl crisis. Tuesday, the three governments jointly declared a fentanyl emergency, directing their agencies to work alongside each other on programs that connect people addicted to the synthetic opioid with treatment programs and to crack down on drug sales....

The declaration comes years after fentanyl rooted itself in the region, spurring deaths, addiction and violent crime. According to Multnomah County, the number of overdose fatalities involving fentanyl increased 533% between 2018 and 2022 in the county. The region has also experienced a serious shortage of substance use treatment providers and recovery centers — despite the 2020 passage of a ballot measure meant to fund new drug treatment programs across Oregon. Measure 110 also decriminalized small amounts of illicit drugs, an aspect that state lawmakers are aiming to renegotiate in this year’s legislative session, which begins next week....

Max Williams, the former state lawmaker who also previously led the Oregon Corrections Department, issued a statement saying the emergency was a good start. “But a permanent fix to Measure 110 is necessary,” he said, citing the 2020 drug decriminalization measure. Williams, with the Coalition to Fix & Improve Measure 110, which is considering a ballot measure this fall, said the state “needs to recriminalize possession of fentanyl and other hard drugs as a Class A misdemeanor to help save lives and rescue communities.”

Second, the New York Times has this lengthy new piece exploring reasons why San Francisco has not been able to replicate the success that Portugal has seen with less punitive drug policies. This piece's full headline reads: "Can San Francisco Solve Its Drug Crisis? Five Things to Consider. A comparison with Portugal’s approach to decriminalization shows why many liberal cities have struggled to match its success."  I highly recommend this piece in full, and here is its start:

San Francisco is in the middle of a drug crisis.  Overdose deaths reached a record high last year, topping 800.  Public drug use is widespread in some neighborhoods.  How did San Francisco get to this point? In part, it follows the national story: The rise of fentanyl, a synthetic opioid, and a destabilizing pandemic caused a spike in addiction and overdose deaths.

But San Francisco’s drug crisis has outpaced the country’s. In 2014, the city’s overdose death rate was roughly in line with the national average. As of last year, its rate was more than double the national average, and San Francisco was No. 4 for overdose deaths among U.S. counties with more than 500,000 people. The country’s overdose crisis worsened over the past decade as fentanyl spread, but San Francisco’s worsened much more quickly.

Local policy changes are partly to blame, some experts say. In 2014, California voters passed Prop 47, reducing drug possession to a misdemeanor from a felony.  Different parts of the state have interpreted the change differently.  In San Francisco, law enforcement has responded by scaling back efforts against drugs, de-emphasizing incarceration and effectively allowing public drug use.

Those who support at least partial decriminalization often cite the experience of Portugal, which decriminalized all drugs more than two decades ago and then saw a decline in drug-related problems.  In 2019, the San Francisco district attorney at the time, George Gascón, even visited Portugal to learn more.  But while San Francisco and other liberal cities have embraced some aspects of Portugal’s decriminalization laws, they have struggled to replicate Portugal’s success.

The comparison with Portugal is not perfect. For one, fentanyl has not taken over Portuguese drug markets, and has a relatively small presence in Europe as a whole.  Still, the comparison gives a way to think about the challenges that San Francisco and other cities have faced.  Those challenges can be broken down into five parts, each touching on a different aspect of drug policy.

January 31, 2024 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (8)

Thursday, January 18, 2024

"'Mass Incarceration' Myths and Facts: Aiming Reform at the Real Problems"

The title of this post is the title of this notable new paper authored by Paul Robinson and Jeffrey Seaman now available via SSRN. Here is its abstract:

Few claims have won such widespread acceptance in legal academia as the “mass incarceration” narrative: the idea that the rise in America’s prison population over the last half century was fueled largely by the needless and unjust imprisonment of millions of criminal offenders due to punitive changes in sentencing.  To many academics and activists, the question is not how accurate the mass incarceration narrative is, but how mass incarceration can be ended.  This Article argues the “mass incarceration” narrative is based on a series of myths and, as a result, many proposed reforms are based on a misunderstanding of America’s past and present carceral practices.  A more accurate understanding is needed to produce effective reform.

The central myth of the mass incarceration narrative is that exceptional and unjustified punitiveness largely explains America’s significant increase in prison population since the 1960s.  This explanation overlooks the numerous non-sentencing factors that increased incarceration: a near doubling in U.S. population, higher crime rates, increased justice system effectiveness, deinstitutionalization of the mentally ill, new and tightened criminalizations, worsening criminal offender histories, and more.  While this Article makes no attempt at statistical precision, these non-sentencing factors can easily explain most of America’s elevated incarceration compared to the 1960s — a fact in direct conflict with the mass incarceration narrative.  Additionally, while some punishments have increased in severity since the 1960s, most of these increases are likely to be seen as moving sentences closer to what the community – and many incarceration reformers – would believe is appropriate and just, as in cases of sexual assault, domestic violence, stalking, human trafficking, firearm offenses, and child pornography, among others.

Comparing America’s prison population to foreign countries, as the mass incarceration narrative often does, similarly overlooks the contributions of many of these non-sentencing factors and incorrectly assumes that a higher American per capita incarceration rate always reflects a problem with American, instead of foreign, practice.  While America can certainly learn from foreign countries, the reality is that many foreign sentencing practices have sparked chronic and widespread dissatisfaction abroad.  It may be that the dispute over incarceration practices is more a dispute between the elites and the community than a dispute between the U.S. and other democracies’ populations.

While all decarceration reformers should welcome a clearer picture of America’s incarceration practices, it is hard not to conclude that many mass incarceration myths were created deliberately by those who oppose not only incarceration but punishment generally.  For these activists, the mass incarceration narrative is primarily a means toward eliminating punishment, a goal that is difficult to pursue directly because it is so contrary to the views of the general population and even a majority of academia.

This Article is not pro-incarceration.  It subjects the mass incarceration narrative to much needed scrutiny precisely because reforming incarceration practices is necessary.  The criminal justice system should strive to deliver just punishment in the most societally beneficial way, which we believe means increasing the use of non-incarcerative sanctions.  The myths of the mass incarceration narrative frequently lead activists to overlook non-incarcerative reforms that deliver just punishment — a tragic failure because such reforms would have much stronger popular support than the anti-punishment or unsophisticated anti-prison reforms now pushed by the mass incarceration narrative.

Part I of the Article describes the mass incarceration myths that have become so broadly accepted.  Part II reviews the facts of American incarceration practice, which contradict many, if not most, aspects of the narrative.  Part III offers our reform proposals, which we believe more accurately address the problems in current incarceration practice. Central to those proposals are the use of creative non-incarcerative sanctions that still deliver punishment proportional to a nuanced assessment of each offender’s moral blameworthiness.

January 18, 2024 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (9)

Wednesday, January 17, 2024

"Redistributing Justice"

The title of this post is the title of this new article now available via SSRN authored by Benjamin Levin and Kate Levine. Here is its abstract:

This Article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system.  Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state.  Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas — often areas where defendants are imagined as powerful and victims as particularly vulnerable.

In this Article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment — the hope that the criminal system can be used to redistribute power and privilege.  We examine this redistributive theory of punishment via a series of case studies: police violence, economic crimes, hate crimes, and crimes of gender subordination.  It is tempting to view these cases as one-off exceptions to a general opposition to criminal punishment.  Instead, we argue that they reflect a vision of criminal law as a tool of redistribution — a vehicle for redistributing power from privileged defendants to marginalized victims.

Ultimately, we critique this redistributive model of criminal law.  We argue that the criminal system can’t redistribute in the egalitarian ways that some commentators imagine.  Even if criminal law somehow could advance some of the redistributive ends that proponents suggest, though, our criminal system would remain objectionable.  The oppressive and inhumane aspects of the carceral state still would be oppressive and inhumane even if the identity of the defendants or the politics associated with the institutions shifted.

January 17, 2024 in Elections and sentencing issues in political debates, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Monday, January 15, 2024

Inspired by sermon on love, hate and the "highway of history" on this MLK Day

On MLK days in recent years, I have made a tradition of making time to listen to the full "I Have A Dream" speech by Dr. King (which always delivers), and I now also explore Stanford University's awesome collection of MLK Papers.  In previous years (in posts linked below), I have quoted from various renown speeches and writings with an emphasis on the intersection of the civil rights movement and criminal justice reform.  But today, what caught my attention was Dr. King's sermon titled simply "Loving Your Enemies," which he delivered at Dexter Avenue Baptist Church in November 1957.  I recommend the full sermon, and here are some excerpts:  

I think the first reason that we should love our enemies, and I think this was at the very center of Jesus’ thinking, is this: that hate for hate only intensifies the existence of hate and evil in the universe.  If I hit you and you hit me and I hit you back and you hit me back and go on, you see, that goes on ad infinitum.  It just never ends.  Somewhere somebody must have a little sense, and that’s the strong person.  The strong person is the person who can cut off the chain of hate, the chain of evil.  And that is the tragedy of hate, that it doesn’t cut it off.  It only intensifies the existence of hate and evil in the universe.  Somebody must have religion enough and morality enough to cut it off and inject within the very structure of the universe that strong and powerful element of love....

And if somebody doesn’t have sense enough to turn on the dim and beautiful and powerful lights of love in this world, the whole of our civilization will be plunged into the abyss of destruction.  And we will all end up destroyed because nobody had any sense on the highway of history.  Somewhere somebody must have some sense.  Men must see that force begets force, hate begets hate, toughness begets toughness.  And it is all a descending spiral, ultimately ending in destruction for all and everybody.  Somebody must have sense enough and morality enough to cut off the chain of hate and the chain of evil in the universe.  And you do that by love....

There is a power in love that our world has not discovered yet.  Jesus discovered it centuries ago.  Mahatma Gandhi of India discovered it a few years ago, but most men and most women never discover it.  For they believe in hitting for hitting; they believe in an eye for an eye and a tooth for a tooth; they believe in hating for hating; but Jesus comes to us and says, “This isn’t the way.”

Also a helpful reader made another reading recommendation for this day, this new opinion piece from the Washington Post by Colbert King, headlined "To bend toward justice, the arc of history has to bend toward family, too."  An excerpt:

“The family, that is, the group consisting of mother, father and child, still remains the main educational agency of mankind,” King said. Those words can’t top the majesty and call to action of King’s “I Have a Dream” oration, or match the moral teachings of his “Letter from Birmingham Jail.” But they go to the heart of what’s missing in the lives of the many who are not free to join in this weekend’s festivities [because they are incarcerated].

A few links to a few recent MLK Day posts:

January 15, 2024 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (10)

Wednesday, December 13, 2023

"Democratizing the Eighth Amendment"

The title of this post is the title of this new article recently posted to SSRN and authored by Erin Braatz. Here is its abstract:

The concept of evolving standards of decency has long been an important component of the Supreme Court’s interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishment.  Yet the Court’s recent decisions problematically conceive of standards of decency as something static and capable of precise measurement.  This Article proposes a theoretically robust and empirically grounded account of evolving standards of decency, drawing on scholarship in the fields of history, sociology, and anthropology. This literature reveals that rather than constituting a static state, standards of decency develop through a process dependent upon interpersonal interactions.  While the Supreme Court’s earliest invocations of the concept of evolving standards of decency relied upon arguments similar to those found in this literature, the Court has lost sight of the concept’s dynamic nature.

Applying this account of standards of decency to the history of penal reform in the United States, this Article contends that the extreme privatization and isolation of penal practices beginning in the mid-twentieth century prevents the public from evaluating whether prison practices in the United States violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  It also stymies the process through which standards of decency might evolve.  The development of penal practices outside of the public eye thereby contributes to the Supreme Court’s struggle to apply the concept of evolving standards of decency to imprisonment cases.  In contrast, recent reform movements, such as prison abolitionism, community control, and democratic criminal justice all rely implicitly on some version of a process-oriented notion of standards of decency.  In varying ways, they reflect a belief that building and facilitating robust interpersonal relationships will lead to a radical reimagining of how individuals can and should be treated in response to harms they may have caused.  Rather than rely on the Supreme Court to ensure that punishments in the twenty-first century are not cruel and unusual, this Article concludes that we must democratize the Eighth Amendment by adopting public policy choices that enable public engagement with penal spaces and the development of the interpersonal relationships through which standards of decency can be engaged.

December 13, 2023 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, December 06, 2023

"The Verdict on Private Criminal Justice"

The title of this post is the title of this book chapter now available via SSRN which is the final chapter of the book Private Criminal Justice authored by my OSU colleague Ric Simmons. Here is its abstract:

This is the concluding chapter of my book Private Criminal Justice, which was recently published by Cambridge University Press.  The book traces the history of private parties’ involvement in responding to criminal activity, and examines the modern instances of private policing, private adjudications, and vigilante justice.  This chapter first considers how the implementation of a widespread private criminal justice system — that is, responding to and punishing criminal conduct without the participation of the state — can still be responsive to the needs and interests of the community.  The chapter argues that the state in fact does a poor job of representing community interests, due to the politicization of public criminal justice policy and the related rise of mass incarceration, and posits that the private criminal justice system could enhance the influence of community interests on criminal justice policy.

The chapter concedes that currently, the components of our private criminal justice system lack many of the basic procedural protections for defendants, and it explores ways that the private system can be regulated so that defendants receive these protections, or at the very least ensure that defendants are informed of the protections that they are forfeiting when they opt out of the public system.

The chapter then offers suggestions for improving the accountability of private police officers, and for using aspects of the private criminal justice system to ameliorate the inequalities of the public criminal justice system.  It concludes by imagining a world where private criminal justice enforcement, settlements, and adjudications are normalized and common, resulting in a wider net of social control in which more criminal conduct is detected and punished, but the punishments are far less severe than in the current system.

December 6, 2023 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)