Sentencing Law and Policy

"Pointing the Way... In the Wrong Direction: the Model Penal Code: Sentencing's Errant Approach to Restorative Justice and Its Role in Sentencing"

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

The Model Penal Code: Sentencing (MPCS) represents a missed opportunity to make restorative justice a foundational element of sentencing.  This Article identifies seven of the main shortcomings in the MPCS’s approach to restorative justice.

First, the MPCS relegates restorative justice to the periphery of sentencing, excluding it from its list of primary sentencing purposes and only authorizing courts to “experiment” with restorative justice.  Second, the MPCS perpetuates the current norm in which sentencing systems fail to meet what victim-survivors have indicated are their principal needs in the aftermath of a crime.  Third, the MPCS fails to recognize that restorative justice is evidence-based, making assumptions and assertions about restorative justice that the research on restorative justice contradicts.  Fourth, the MPCS perpetuates the patronizing treatment of victim-survivors, overriding what victim-survivors have said are their paramount needs and allowing prosecutors and judges to bar victim-survivors’ access to a restorative process.  Fifth, the MPCS is discordant, spurning, for example, restorative justice for reasons that would disqualify other sentencing goals the MPCS embraces. S ixth, by failing to recognize restorative justice as a critical component of sentencing, the MPCS undercuts other of its sentencing goals, including the goals of proportionality in sentencing and future crime avoidance.  Seventh, and most fundamentally, the MPCS reflects a lack of understanding about what restorative justice is and how it is an aid, not a threat, to a court’s sentencing authority.

This Article concludes with recommendations to dissipate the potential inhibiting effect the MPCS might have on the spread and advancement of restorative justice in the United States.

"Taking Retributive Value Seriously"

The title of this post is the title of this essay authored by Douglas Husak recently posted to SSRN. Here is its abstract:

I present the following challenge to retributivists (including myself).  I stipulate that retributivism is the claim that inflictions of deserved punishment produce intrinsic value.  If this definition is accepted, it is curious that the academic writing of few if any retributivists express enthusiasm for punishing greater numbers of persons who commit serious crimes.  A great deal of intrinsic value could be added by increasing the clearance rates for serious offenses. 

In this paper I briefly explore five reasons that might explain and/or justify this reticence.  Perhaps any value that is created by these punishments is too small to give rise to much concern.  Or it is outweighed by competing disvalues.  Or maybe efforts to increase existing rates of punishment would be too uncertain or difficult to implement.  Or many of those we might seek to punish have viable excuses and are not blameworthy.  Or perhaps the personal and political costs of broadening the net of penal liability are too great to incur among those committed to racial justice.  Retributivists who are not eager to increase the number of deserving persons who are punished must choose from these five (or perhaps from other) options.

"Solitary Confinement, Human Dignity, and the Eighth Amendment"

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

The harms of solitary confinement have been well-documented for centuries, yet the practice persists.  Despite recent efforts to reform the use of solitary confinement in certain states and localities, over 120,000 people are currently confined in solitary conditions in American prisons and jails.  In part, America’s addiction to solitary remains incurable because the doctrine governing whether a particular punishment practice is constitutional — that is, the doctrine interpreting the Eighth Amendment’s cruel and unusual punishments clause — fails to adequately recognize the harm caused by solitary.  To be sure, modern Eighth Amendment doctrine recognizes specific deprivations attendant to solitary (i.e., deprivations of human interaction, environmental stimulation, sleep, and outdoor exercise).  But by requiring an atomization of the harm of solitary into these singular deprivations, current Eighth Amendment doctrine fails to capture the breadth, depth, and significance of the harm caused to people experiencing these deprivations in combination.  In other words, modern Eighth Amendment doctrine’s focus on singular deprivations overlooks the harm to personhood that solitary inflicts.

This Article proffers human dignity as a novel conceptual vehicle for capturing and articulating solitary’s harm to personhood.  Starting from the Supreme Court’s edict that “the basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” the Article employs a construct of dignity as integrity — or wholeness — of personhood.  Using dignity-as-integrity as a conceptual vehicle to encompass the physical, psychological, and social harms of solitary, the Article provides a doctrinally and theoretically coherent construct for understanding solitary’s deprivations and the harm those deprivations inflict on personhood.  By utilizing the dignity-as-integrity construct, the Article not only provides a more coherent frame to understand the harms of solitary confinement, it also helps better understand how conceptions of dignity shape Eighth Amendment doctrine.  For if the touchstone of the Eighth Amendment is truly “nothing less than the dignity of man,” an understanding of dignity that encompasses integrity of personhood is critical to providing meaningful parameters on the State’s power to punish.

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

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

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

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

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

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

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

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

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

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

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

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

"Plea Agreements and Suspending Disbelief"

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

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

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

Did Justin Timberlake get a "sweetheart plea deal in drunk driving case"?

The question in the title of this post is prompted by the headline of this New York Post article discussing pop icon Justin Timberlake sentencing on Long Island yesterday.  Here are excerpts from the piece:

Justin Timberlake issued a groveling, court-ordered apology Friday for getting behind the wheel after downing drinks in the Hamptons. “This is a mistake that I made but I’m hoping that whoever is watching and listening right now can learn from this mistake,” said the former boy band heartthrob — who was ordered to deliver the public statement as part of a plea deal to a lesser violation in the case. “Even one drink — don’t get behind the wheel of the car.”

The “SexyBack” singer talked after pleading guilty in a Sag Harbor courtroom Friday to driving while alcohol impaired, which was a lesser charge than the DWI count he faced. The deal with prosecutors orignially only involved him making his public apology, but Justice Carl Irace said that was not enough and decided on his own to also sentence Timberlake to 25 to 40 hours of community service.

While its not clear when the work sentence will begin, the former NSYNC star delivered comments outside the courthouse after the hearing. During the three-minute address to the media, Timberlake admitted that while “I try to hold myself to a very high standard — this was not that.”...

Timberlake then emphasized a second time, that no one should drive even after having just one drink, urging people to look for any other transportation option after imbibing. “There’s so many alternatives,” he said. “Call a friend, take an Uber. There are so many travel apps. Take a taxi.”

In some sense, the local sentencing judge's decision to add a week's worth of community service to the sentence sugests he viewed the plea deal here as too lenient.  But I have no knowledge of what the sentencing norms are in New York courts for a drunk driving offense for a first offender.  This CBS News piece has a local lawyer asserting Timberlake did not het any special treatment:

Long Island defense attorney David Schwartz says with the plea agreement, Timberlake got treated like every other first-time offender. "The 90-day suspension is by statute, the $500 fine is by statute, and the judge threw on 25 hours of community service, which is completely normal," he said.

That CBS piece also has notable comments from the DA and a notable observer:

"Mr. Timberlake received the same treatment as any other defendant. Justice should be applied equally to all individuals, regardless of their wealth or celebrity status. Drunk and drugged driving is an extremely serious nationwide public safety issue," DA Ray Tierney said. "These drivers threaten the lives of random and innocent roadway users of every age, gender, ethnicity, and economic status. In 2024, with the prevalence and convenience of public transit and ride-shares, there is no excuse to get behind the wheel when you are impaired in any way."

The family of Boy Scout Andrew McMorris, who was killed by a drunk driver on Long Island in 2018, was inside the courtroom. "I do feel he was sincere, and I can only hope that his platform with everyone here will make a significant change," mom Alisa McMorris said. "This gives me hope that maybe the next generation will be the generation that ends drunk and impaired driving."

As I have articulated in the past in conjunction with other celebrity DUI sentencings, I think society's strong interest in educating and deterring potential drunk drivers might call for subjecting these offenders to more significant and/or creative alternative sanctions. Adding community service is a start, but why not require Timberlake, who is in the middle of a word tour, to make certain announcements discussing the dangers of DUI at his upcoming concerts?  I strongly share the hope that the "next generation will be the generation that ends drunk and impaired driving," but advancing that cause likely requires a lot more than a " groveling, court-ordered apology" from a societal icon.

"Beyond Problem-Solving Courts"

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

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

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

"Justice Theater in the Criminal Law Curriculum"

I just came across this recent article about legal education that was posted to SSRN earlier this year and is authored by Gregory Brazeal. (I wrote a little on this topic more than 20 years ago, and I still view legal education on crime and punishment matters to be important underexplored issues.)  Here is this new article's abstract:

For the last half-century, law students have been required to take a criminal law course that ostensibly trains them to think critically about the justifications for criminal punishment.  The same students have then gone on to serve as central actors in a system of mass incarceration that millions of Americans today view as profoundly unjust.  How did this happen?

A number of legal scholars, notably including Alice Ristroph in her 2020 article “The Curriculum of the Carceral State,” have argued that the traditional criminal law curriculum has played a role in creating and reproducing the practices of mass incarceration.  This article agrees, and focuses on two concrete critiques, alongside two corresponding curricular reforms.

First, criminal law courses routinely introduce the field in part by discussing a series of theoretical “justifications of punishment” such as retribution, deterrence, incapacitation, and rehabilitation.  These discussions often provide students with tools for arguing in favor of punishment, and in particular incarceration, without providing relevant empirical evidence that shows the limits of the theoretical justifications.  Students are invited to focus on the theoretical benefits of incarceration without being adequately exposed to the negative effects of incarceration as it is actually practiced in the United States today.

The tradition of introducing criminal law through the discussion of theoretical justifications for punishment should be abandoned.  Instead, the article proposes beginning the criminal law course with an empirically informed discussion that frames criminal law as one response among many to the social problem of public safety.  Second, the bulk of most criminal law casebooks consists of excerpts from judicial opinions.  These excerpts tend to describe harmful acts carried out by defendants without providing adequate context for thinking seriously about justice.  The excerpts send the message that criminal harms result from isolated, individual choices by bad people, rather than being conditioned by situational and other factors, including policy choices by the state.

The article proposes replacing criminal law case excerpts with a method of instruction based on case studies, similar to the case study method used in many professional schools.  Case studies could provide students with more context for understanding criminal harms, and in particular could better equip future prosecutors to serve as “problem-solver[s] responsible for considering [the] broad goals of the criminal justice system,” as the ABA Criminal Justice Standards demand. In the coming years, the arrival of the NextGen bar exam will offer an occasion to reconsider how criminal law is taught in the United States.  Rather than continuing to train students in ways of thinking that facilitate mass incarceration, the curriculum should be changed. 

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

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

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

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

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

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

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

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

"Terminating Supervision Early"

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

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

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

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

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

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

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

"Making Victims Relevant: Republican Freedom and the Justification of Criminal Punishment"

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

Although punishment theories have overall been slow to incorporate the move towards victims’ rights, Braithwaite & Pettit’s republican theory has been a notable exception.  This paper is concerned with identifying the ways in which republican theory urges us to rethink the philosophy and practice of punishment, positioning victims at its centre, as well as with the theory’s evaluation.

According to republican theory, crime compromises the victim’s ‘dominion’, that is a type of freedom as non-domination thicker than freedom as non-interference.  In this context, punishment is justified as the rectification of the victims’ diminished dominion, through restorative justice practices backed by the threat of deterrence and incapacitation as a last resort.  It is argued that in linking the levels of justification and practice, republican theory renders the concept of ‘dominion’ indispensable to the development of a normative framework for victim-focused punishment, while avoiding the collapse of the criminal justice system into a system of tort law.

But does the turn to victims that the republican theorists envision come at a cost for offenders?  On the one hand, their conception of victim-focused punishment successfully integrates a principle of parsimony, thereby reconciling the interests of victims and offenders.  On the other hand, the pure consequentialist character of republican theory, reflected in the penal practices it envisions, is not easily reconcilable with the mandate for a stable protection of offenders’ rights and the principle of proportionality.  It is suggested that the way forward requires at the level of theory a synthesis between republicanism and versions of backward-looking justifications of punishment, and, at the level of practice, an effort to implement responses to crime which do not set up victims and offenders for a zero-sum game.

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

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

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

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

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

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

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

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

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

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

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

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

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

"Rethinking the Role of Intentional Wrongdoing in Criminal Law"

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

It is a foundational assumption of the traditional mens rea hierarchy that the commission of intentional harm is and ought to be subject to greater criminal liability than actions which foreseeably result in risk of those same harms.  This Article questions the soundness of that assumption.  It argue that for many criminal offenses — particularly criminal homicide — a reluctant agent who purposefully causes harm to another person (even when that harm is deliberate and premeditated) will often nonetheless exhibit more concern for the well-being of their victims than a callous agent who acts recklessly, or even negligently, while indifferent to the harm they cause.  The Article uses this critical re-thinking of the standard mens rea hierarchy to show how we might amend current homicide doctrine to allow more proportionate criminal liability for non-intentional police homicides like Derek Chauvin’s killings of George Floyd, relative to reluctant purposeful defendants.

As part of that argument, the Article identifies and articulates an especially important set of ‘avoidance-commitments,’ which are manifested in the case of reluctant purposeful agents but absent in the case of callous agents, and which speak in favor of diminished liability for many purposeful agents relative to their reckless or negligent counterparts.  In so arguing, the Article highlights how the criminal law’s current mens rea hierarchy, while seemingly ideologically neutral, in fact evinces a commitment on the part of the state toward punishing more severely those who commit purposeful crimes of desperation, while excusing those in positions of wealth or power who commit non-intentional crimes of convenience, while unwilling or unmotivated to seek out or take easily available options to avoid wronging their victims.  Failure to be clear-eyed about such commitments creates a further barrier to recognizing the true moral magnitude of failures by police officers to recognize the humanity of those they police, and to designing a legal regime that effectively assigns criminal liability accordingly. 

"The Victims' Rights Mismatch"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts:

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

"Probation and the shadow carceral state: Legal envisioning from Minnesota"

The title of this post is the title of this new article just published in the journal Theoretical Criminology and authored by Michelle Phelps and Eric Seligman. Here is its abstract:

The transformation of US punishment in the late 20th century was defined not just by mass imprisonment, but the growth of a shadow carceral state of administrative and civil sanctions, including technical violations of probation and parole that smooth the pathway to prison.  We consider the role of technical violations in the shadow carceral state through the lens of lived experience, analyzing interviews with adults on probation in Hennepin County, Minnesota, conducted in 2019.  Building on the concept of legal envisioning, we ask how people subject to probation experience the threat of violations and what they imagine would be helpful to avoid them.  Ultimately, these perspectives illuminate the need for transformative changes to dismantle the shadow carceral state and raise challenging questions about the role of care in punishment.

"Incarceration Reimagined: A Diversionary Option for Serious Felony Offenders"

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

In today's polarized political climate, criminal justice reform remains one of the few issues that spans partisan divides. Voices from across the political spectrum agree: the United States needs a new approach to incarceration.  Our current system of mass incarceration is costly, ineffective, and inequitable.  It perpetuates intergenerational cycles of crime and poverty and pushes communities deeper into destitution.

This Article proposes a radically new approach. It presents a diversionary alternative-to-prison model for people facing serious felony charges — the majority of the prison population today.  The approach calls on courts to divert felony offenders away from prison toward 501c3-run campuses.  Instead of going to prison, offenders live and learn at a residential campus for one to three years.  While there, they engage in a holistic, evidence-based program targeting their individual needs.  In exchange for completing the program, participants have their prison sentences suspended and records expunged.  Participants return home with the skills, mindsets, and support networks needed to succeed in modern society.  Critically, government agencies hold campuses accountable for outcomes using an administrative structure similar to that used by high-performing urban charter schools — incentivizing stakeholders to reduce recidivism and alleviate poverty.

After laying out the model on paper, this Article presents a case study of The Reset Foundation ("Reset"), a non-profit organization I launched to pilot the model in the San Francisco Bay Area from 2013 to 2018.  Reset's experience suggests the model is a potentially powerful one for diverting felony offenders away from prison toward better life outcomes: with its first cohort of ten students, Reset eliminated ninety years of prison time.  The case study simultaneously shows the complexities and challenges of implementing a model as comprehensive and systemic as this.  To increase the chances of successful adoption, the public sector should instigate this work, not the non-profit sector, with significant support from local communities.

US Sentencing Commission releases over 1200 pages of public comment on proposed priorities

As noted in this post last month, the US Sentencing Commission recently released a "Federal Register Notice of Proposed 2024-2025 Priorities" which suggested that the USSC was eager in this coming guideline-amendment year to take a "big-picture" look at the full fedeal sentencing system and the Commission's own work therein.  Lots of folks rightly understood that the Commission was seeking lots of input, and many responded to its request for comment.  And now the USSC has published those public comments, which in full pdf compilation runs over 1200 pages, in an accessible manner at this webpage and explained this way:

The July 2024 Compilation of Public Comment uses bookmarks as its table of contents.  A bookmark is a navigation link that displays in the side panel within Adobe Acrobat (example).  Some browsers open the bookmarks panel by default within the browser window.  If you cannot access the bookmarks panel within the browser window, it is recommended that you save the PDF and reopen it in Adobe Acrobat for easier navigation.

The Commission reviews and catalogs all public comment submissions for future reference and official recordkeeping purposes. A representative sample of public comment is carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations. 

User Tips for Mobile Devices: The Compilation of Public Comment is over 1,200 pages and more easily navigated on a desktop.  Hyperlinks below may not take mobile users to a specific letter and the bookmarks panel may not be accessible on mobile devices. 

I believe I am partially responsible for a few dozen of these many pages of comments, and I am hopeful in the coming weeks and months to flag a wide range of comments that seems especially interesting or perhaps surprising.  In the meantime, I will just say again that the Commission merits great credit for thinking big about federal sentencing and for encouraging the public to help in that endeavor.

Prior recent related post:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle

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

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

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

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

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

A distinct project for 2025 focused on criminal justice reform

This past week I saw a notable policy document from the Justice Action Network, titled "Federal Criminal Justice Reform: Options For Policymakers 2025-2029."  This 28-page document aspires to serve "as a guide for actionable policies, with bipartisan support, that will make the criminal justice system more safe, accountable, and fair for incarcerated people, the professionals who work in the criminal justice system every day, and the public."  Here are a few portions of the report's executive summary that focus on sentencing and corrections and reentry topics:

• Evidence-based sentencing reform: the EQUAL Act, the Smarter Sentencing Act, the First Step Implementation Act, bringing back federal parole, reforming the executive clemency process, and strengthening the Juvenile Justice and Delinquency Prevention Act will ensure expensive prison space is prioritized for violent offenses.

• Increasing prison oversight and effectiveness: the Federal Prison Oversight Act and ending or significantly limiting solitary confinement will ensure that prisons are safe for incarcerated people and staff, protecting rights and safety.

• Reducing barriers to reentry: the Due Process Continuity of Care Act, the Reentry Act, the Improving Mental Health in Re-Entry System Act, and the Safer Supervision Act will ensure that people are ready to return to their communities when they leave jail or prison.

• Reducing collateral consequences of incarceration: the Clean Slate Act, the Fresh Start Act, the Begin Again Act, the Driving for Opportunity Act, restoring SNAP and TANF to formerly incarcerated people, ending the ban on drivers’ license suspension for drug offenses will ensure that people who have successfully reintegrated truly get a second chance.

"The Demand for Democracy in Sentencing"

The title of this post is the title of this new essay now available via SSRN authored by Con Reynolds and Judge Carlton Reeves (who are, as noted at SSRN, "currently employed by and/or appointed to lead the United States Sentencing Commission). Here is its abstract:

In making the federal sentencing guidelines advisory, Booker v. United States made the influence of those guidelines dependent on their perceived legitimacy.  This Article argues that, given the link between law's legitimacy and its democratic character, Booker should be read as a demand for democracy in sentencing. This demand echoes the one imbued in the U.S. Sentencing Commission's statutory charter, which gives the agency unique potential to create administrative governance that is of the people, for the people, and by the people.  In detailing past and present efforts to fulfill that potential, this Article invites readers to assist the Commission in its continuing pursuit of more democratic sentencing policy.

"Past, Prologue, and Constitutional Limits on Criminal Penalties"

The title of this post is the title of this new article authored by Maria Hawilo and Laura Nirider recently published in the Journal of Criminal Law and Criminology. (I just came across this article thanks to this new Slate commentary by Kyle Barry and Maria Hawilo titled "How States Can Undo One of This Supreme Court Term’s Most Egregious Decisions.") Here is the journal article's abstract:

Most criminal prosecutions occur at a level that is both neglected by many legal scholars and central to the lives of most people entangled in the criminal legal system: the level of the state. State v. Citizen prosecutions, which encompass most crimes ranging from robbery to homicide, are governed both by the federal constitution and by the constitution of the prosecuting state.

This is no less true for sentences than for prosecutions. When it comes to sentences, state courts are bound by the Eighth Amendment to the United States Constitution, which famously proclaims that no American shall be subjected to “cruel and unusual punishment.” But state constitutions may go further than the federal constitution. States may adopt constitutional provisions analogous to the Eighth Amendment that establish even more effective guards against unreasonable or vindictive punishments.

One state — Illinois — has so chosen.  At Illinois’s most recent constitutional convention in 1970, a group of statewide delegates agreed to reconsider the limits set by the state’s constitution on criminal punishments.

From that convention emerged a revolutionary idea: that Illinois should adopt in its constitution the strongest known language in the nation limiting a government’s ability to mete out extreme punishments to those citizens who have transgressed the criminal law — and clearly identifying the purpose of those criminal sentences as rehabilitation. Thus was born what appears in Illinois’s constitution today: the so-called proportionate-penalties clause.  That clause, codified in 1970 as Article 1, Section 11 of the Illinois Constitution, proclaims that “all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. No conviction shall work corruption of blood or forfeiture of estate. No person shall be transported out of the State for an offense committed within the State.”

This Article traces the origins of the proportionate-penalties clause back to the 1970 constitutional convention, using floor debate transcripts and other contemporaneous sources to establish that its authors did, indeed, intend Illinois sentences to serve rehabilitative purposes.  To interrogate the context of those documents, this Article also examines the surrounding historical events of late 1960s-era Chicago, as well the lives and identities of the delegates who propelled this clause forward.

This Article uses the authors’ words as prescient calls for a new interpretation of the proportionate-penalties clause that hews to their vision — and that can serve as a model for rethinking the guardrails around criminal punishments nationwide.  Indeed, a constitutional scheme that insists that criminal penalties be directed at rehabilitative ends can and must carry implications for many of the statutes and rules that sustain our current system of mass incarceration.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"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?

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?

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?    

"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.

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.

"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.

"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.

"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.

"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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"The Blackstone Ratio, Modified"

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

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

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

"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.

"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. 

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)

"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.

"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.

"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.

"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.

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.

"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.

"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.

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."