Sentencing Law and Policy

"The Legitimacy Of Criminal Law And The Performance Crises Of Penality"

The title of this post is the title of this new article authored by Alessandro Corda and just published in the journal Criminal Law Forum.  Here is its abstract:

The legitimacy of state punishment has long been debated to justify the extreme form of government-authorized coercion that is criminal law.  Rather than focusing on the abstract legitimacy of criminal law, this article examines another dimension of the debate: the legitimacy (or lack thereof) arising from the dynamics of substantive criminalization.  Specifically, it addresses the “performance crises” of penality — enforcement-related failures in the implementation of the criminal law.  The article identifies and discusses three distinct typologies of crisis in the deployment and enforcement of penal statutes: crises of hyper-intensity, crises of hyper-selectivity, and crises arising from sentence opacity, each undermining the legitimacy of criminal law in different ways. 

By addressing this gap in the theoretical literature, the article highlights the critical role of enforcement in shaping normative and policy discussions on substantive criminalization and its impact on the legitimacy of criminal law as a whole.  From this perspective, penal legitimacy should be informed by the notion of “penal adequacy”, grounded — depending on the specific type of crisis — in moderation, non-discrimination, and transparency, and, across all cases, in sustainability.  This concept highlights a balanced and fair exercise of the state’s penal power — one that is measured, non-discriminatory, clearly communicated, and, overall, capable of achieving its objectives in a sustainable manner.

Former Judge Mark Bennett reviews his "Half Century Traversing the Arc of Federal Sentencing"

A helpful colleague made sure I saw this new article published recently in the latest issue of the ABA magazine Litigation authored by former US District Judge Maek Bennett.  Judge Bennett's opinions and articles on various federal sentencing topics have appeared in this space many times through the years, and it is nice to see how he wrapped up lots of experiences and insights in this relatively short ABA article, titled "My Half Century Traversing the Arc of Federal Sentencing." The piece merits a read in full, and here are its starting paragraphs: 

In the more than 50 years since I graduated from law school, there is no area of federal law that has affected more lives with more dramatic pendulum swings than federal sentencing.  I am now a retired federal judge who has spent nearly a third of my life populating the Federal Bureau of Prisons by sentencing more than 4,000 offenders, in five federal districts spanning the two districts in Iowa to the District of Arizona, the District of North Dakota, and the farthest reach of the federal courts in the District of the Northern Mariana Islands in Saipan.

Flash-back to the summer of 1975: having started my own law firm after graduating from law school, I was involved in my first federal sentencing as a novice but eager defense lawyer. The defendant was to be sentenced by a conservative but fair federal district judge.  The defendant was a low-level small-time nonviolent, addict drug dealer with no prior criminal record other than two aging minor misdemeanors. Despite my lack of experience, he was sentenced to three years of probation and drug treatment.  Back then, probation was common for nonviolent first offenders.  Had an identical defendant appeared before me as a federal district judge, and many hundreds of them did, the defendant would have received a mandatory minimum 120-month or 240-month sentence, or possibly even more, depending on the drug quantity and aggravating factors.  This article chronicles the jaw-dropping arc of federal sentencing and the federal sentencing guidelines that help explain, but do not justify, this staggering disparity.

Spicy supplemental submissions as federal sentencing for George Santos approaches

In this post last August, I pondered "what sentence for former US Rep George Santos after his plea to fraud and identity theft?".  And in this post a couple of weeks ago, I reported on and linked to dueling sentencing  memos submitted to US District Judge Joanna Seybert prior to Santos' scheduled federal sentencing on April 25, 2025.  That post detailed that federal prosecutors sought a sentence of 87 months in prison while Santos advocated for a the statutory minimum term of two years.

Intrigung, the dueling has continues as sentencing approaches through notable supplemental letters from the parties.  This CBS News piece provides some of the details along with links to the letters:

Disgraced former Rep. George Santos sent a lengthy letter to the judge set to sentence him on Friday as prosecutors seek a seven year sentence.  

Last week, a filing by the Justice Department described Santos, 36, as "unrepentant for his crimes," pointing to various social media posts he recently made. One such post said "No matter how hard the DOJ comes for me, they are mad because they will NEVER break my spirit." Another post criticized the DOJ for indicting him but not "the cabal of pedophiles running around in every power structure in the world including the US Government." In another post, Santos labeled himself a "scapegoat." 

The DOJ said those posts show Santos is approaching his sentencing "with belligerence and an insatiable appetite for 'likes,' blaming his situation on everyone except himself." The Justice Department argued that the posts are "hardly an expression of 'genuine remorse.'"...

In his letter, Santos attempts to offer a rebuttal to the DOJ filing.  Santos pointed to his August guilty plea, and statements he made at the time in court expressing regret and accepting responsibility for duping voters by fabricating his life story, as well as deceiving donors and committing identity theft, which ultimately led him to be expelled from the House.

"Those words were not a scripted contrition; they were the culmination of months of bruising self-examination. This case has cost me my congressional seat, my reputation, my livelihood, and, most painful of all, the confidence of people who believed in me. Every sunrise since that plea has carried the same realization: I did this, me. I am responsible," Santos wrote. "But saying I'm sorry doesn't require me to sit quietly while these prosecutors try to drop an anvil on my head."

Both of the supplemental filing make for interesting reads, but the three-page Santos letter is especially engaging.

Prior related posts:

• You be the federal judge: what sentence for former US Rep George Santos after his plea to fraud and identity theft?
• In sentencing memos, feds advocate for 7+ years in prison while George Santos' team urges statutory minimum of 2 years

"The Biblical Concept of Mercy as a Pragmatic Decision Protocol"

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

The concept of mercy is often proposed as an antidote to the punitive excesses of our current criminal justice system. But this concept is typically presented in generalized, abstract terms that seem unworkable as a pragmatic decision strategy. Its religious origins and associations only add to this impression.  In fact, however, if the Biblical accounts of mercy are interpreted using the narrative strategy that is featured in current scholarship, an eminently practical decision protocol emerges from these accounts. 

This protocol diverges from the common or popular view of mercy.  It omits the demand for contrition or gratitude on the part of the wrongdoer, viewing this as an effort to exercise domination rather than extending mercy, and it minimizes compassion on the part of the decision maker due to its tendency to merge into favoritism. Instead, the protocol recommends that the decision maker deal with the wrongdoer on a direct personal level, suppress any emotional responses such as anger or indignation, and consider the collateral consequences of the proposed punishment.

This article describes the way the protocol can be derived from leading Biblical narratives about mercy, including the expulsion from the Garden, the mark of Cain, Christ and the adulteress, and the prodigal son.  It then expands on this derivation by analyzing the Book of Jonah, rejecting the common view that this work is a satire and treating it instead as a profound inquiry into the nature of mercy.  The article concludes by applying the protocol it has derived to policy level decisions in the criminal justice system, specifically judicial sentencing, administrative parole and the use of restorative justice.  

"Cruel and Unusual Punishments and the Constitutional Status of the Idea of Progress"

The title of this post is the title of this new paper authored by R. George Wright and now available via SSRN. Here is its abstract:

More than three generations ago, the Supreme Court took Eighth Amendment jurisprudence on a distinctive path.  The 1958 case of Trop v. Dulles declared that the notion of Cruel and Unusual Punishments "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."  This Article carefully unpacks that language, with particular attention to relevant ideas of progress, and then addresses the current status of the Trop test in light of the Court's increasing attention to questions of text, history, tradition, and established precedent. 

"Responding to the Culpable State: Is Sentence Mitigation Appropriate?"

The title of this post is the title of this recently published book that was just brought to my attention by the publisher, who offered this audience a discount code: "Order online at www.bloomsbury.com -- use the code GLR BD8 to get 20% off!"  The book has 15 intriguing chapters, and is edited by Leo Zaibert, Julian V Roberts and Jesper Ryberg.  This helpful description (along with a table of contents) appear on the publisher's website for the book:

This volume explores ethical aspects relating to claims for mitigation arising from culpable state action (or inaction).

It answers the important and controversial question: to what extent should the state mitigate sentencing for defendants who have been victims of state misconduct?

The volume explores the normative justifications for mitigation and answers many intriguing questions.  For example, in terms of the procedural challenges, should the offender have to prove a causal link between state wrongdoing or neglect and the offending?  Can a court take judicial notice of state-induced social adversity and apply this consideration to all affected offenders?  Other questions relate to the implications for courts and sentencing commissions which issue guidance to courts regarding mitigation at sentencing. To what extent is the offender less culpable as a result of state misconduct, and what are the limits of any resulting sentence reductions?  Do sentence reductions for state misconduct undermine proportionality, or deprecate the seriousness of the impact on the victim of crime? Should this factor be included in any sentencing guidelines or possibly even as a statutory mitigating factor?

Each contribution explores a distinct, cross-jurisdictional claim for mitigation on the basis of State negligence or misconduct towards the offender.  The chapters all address the appropriate response of courts at sentencing.

"Time and Retribution"

The title of this post is the title of this recent paper now posted to SSRN and authored by Meghan J. Ryan. Here is its abstract:

Time is missing from discussions on the theory of retribution.  A colossal body of scholarship has been devoted to exploring the theory of retribution, or 'just deserts," but much less has attempted to translate this theory into practice, explaining how to determine an actual offender's desert in real life.  The limited scholarship on this topic touches on who might best assess an offender's desert.  For example, should a judge, a juror, or the public itself be making these desert decisions?  But there is also a temporal aspect to this decision making that has thus far largely eluded exploration:  When should the desert decision be made?  The recently finalized Model Penal Code: Sentencing brings this question into relief by calling on legislatures to allow judges to reassess certain sentencing decisions made decades earlier.  But do later sentencers really have a better sense of desert than the original sentencers in a case?

This Article argues that the original sentencers, and in particular the original public and its representatives, are actually best positioned to decide an offender's desert.  They represent the original victims in the case; they are closer to the facts; they comprise the society that shaped the offender and the circumstances leading to the offense; and recognizing these original sentencers' desert-deciding advantage furthers finality goals.  Now, there may certainly be reasons to modify sentences after they have been imposed primarily when new information justifies new sentences. But, in most cases, new sentencers are generally not more enlightened about what an offender actually deserves. Instead, when new sentencers have an edge over original sentencers, it often stems from consequentialist, rather than retributivist, principles.  Under the theory of retribution, original sentencers are ordinarily best equipped to assess an offender's desert.

"Disentangling Safety and Accountability in Criminal Justice Policy"

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

In this Article, I argue that the U.S. criminal system and debates about criminal justice reform reflect an elision of two largely distinct social functions: ensuring public safety and imposing accountability for harmful conduct.  Despite deep disagreement about the specifics, most commentators seem to accept that these are both important social functions. Abolitionists claim that the criminal system doesn’t keep people safe and provide accountability.  Instead, it harms — and perhaps is meant to harm — people from marginalized communities and protects the interest of socially dominant groups. Reformers contend that the criminal system can and should serve the safety and/or accountability interests, but it currently doesn’t.  Meanwhile, defenders of the status quo claim that criminal legal institutions serve these two core state functions (and perhaps others).

I argue that it’s a mistake to imagine that the same institutions could or should fulfill both of those functions.  I contend that the contemporary U.S. criminal system often relies on a foundational problem: entangling the safety function and the accountability function.  Imposing some degree of stigma might be a desirable feature of an accountability-based system, but is it actually necessary in a system focused on public safety?  Similarly, forms of surveillance and social control might be defensible features of a system focused on public safety, but are they actually necessary to ensure accountability?  The answer to both of these questions should be no.  But with criminal legal institutions understood as advancing both functions, we are left with a troubling, incoherent, and often-counterproductive amalgam of the problematic features of both. Ultimately, we all won’t agree on the best way to ensure public safety or to hold people accountable.  But, taking seriously the distinction between those ends might help set the stage for more fruitful debates about what features of contemporary penal administration should be preserved, reformed, or abolished.

"Encouraging Desistance Using Second Chance Mechanisms"

The title of this post is the title of this forthcoming book chapter authored by Isabella Polito and Colleen M. Berryessa. Here is its abstract:

High rates of recidivism in the age of mass incarceration have prompted efforts for more rehabilitative approaches to criminal justice that support desistance while balancing public safety concerns and the resulting political feasibility of such reforms.  Sentence reduction efforts, referred to as “second chance” mechanisms, encourage the use of new and existing practices to reduce incarcerated populations and encourage deterrence from criminal behavior and successful rehabilitation.  Presumptive parole, universal parole eligibility, granting good time credit, and the elimination of parole revocations for technical violations encourage the swift release of individuals upon being eligible for release, while the mechanisms of second-look sentencing, commutation, retroactive application of sentencing reforms, and compassionate release encourage institutional changes that support the release and recovery of incarcerated people.  Overall, this chapter addresses how second chance mechanisms encourage desistance and discusses their political feasibility -- especially considering public support for sentence reduction strategies and concerns about public safety.

"Blindfolded Juries, Coerced Convictions: Why Prosecutors Often Win Before Trials Even Begin"

The title of this post is the title of this new article by Clark Neily that serves as the cover story of the latest issue of the Cato Institute's Free Society magazine. Here is how the article begins:

The Bill of Rights dedicates more words to the resolution of criminal charges than any other subject, establishing a criminal justice system in which defendants are afforded rigorous protections such as the presumption of innocence, the right to counsel, and trial by jury.

But the Founders would hardly recognize today’s adjudicative process, which is more akin to an industrial-scale assembly line that prioritizes expediency over fairness and churns out guilty pleas through ad hoc, extraconstitutional dealmaking that systematically excludes ordinary citizens from a process in which they were meant to be the key players. And the small handful of defendants who resist the often palpably coercive pressure to plead guilty will be tried by a jury that has been carefully curated and indoctrinated to ensure it is free of people who understand the historic powers of jurors in our system, including but not limited to conscientious acquittal.

"Killing Through Their Kids"

The title of this post is the title of this new piece authored by Dyllan Taxman now available via SSRN. Here is its abstract:

In early 2024, James and Jennifer Crumbley were sentenced to over a decade in prison after their son, Ethan, shot and killed four classmates at Oxford High School in Michigan.  The Crumbley parents incurred manslaughter liability by ignoring Ethan’s deteriorating mental state, gifting him the murder weapon, and failing to act on concerns about Ethan’s behavior on the day of the shooting.  In this Article, I suggest they will be far from the last. Indeed, less than one year after the Crumbley convictions, Colin Gray — whose son committed the shooting at Apalachee High School — was charged with manslaughter and second-degree murder.

Current coverage of the Crumbley parents’ conviction has cabined their case as an outlier, unlikely to repeat due to uniquely egregious facts.  I argue that charging and convicting the parents of a school shooter will recur because similar conduct has produced parental homicide liability for over a century of widespread American jurisprudence via homicide by medical neglect and passive abuse.  By analyzing the Crumbley parents’ conviction in this context, I draw out a test to determine when parental homicide liability might attach following a school shooting.  This duty to prevent test asks if parents: (1) ignored clear warning signs about the child’s deteriorating mental health; (2) facilitated the child’s access to a weapon; and finally (3) ignored additional warnings about the child’s violent ideations.  Where each prong is met, parental homicide liability following a school shooting tracks not only the theory of liability upon which the Crumbleys were convicted, but also the traditional and well-established components of homicide liability for medical neglect and passive abuse.  Finally, I suggest that school officials who meet each prong of the test may incur similar liability under certain circumstances.

"The Historical Origins and Evolution of Rehabilitative Punishment"

The title of this post is the title of this new "ahead of print" article forthcoming in the journal Crime and Justice. Authored by Michele Pifferi, her is the piece's abstract:

The notion of rehabilitative punishment has changed over time, variously informed by political contexts, prevailing ideas, and institutional frameworks.  Enlightenment utilitarian reformers did not prioritize reformation of the offender.  The penitentiary movement of the late eighteenth and early nineteenth centuries mainly concerned new prison regimes that did not, however, question the retributive and deterrent rationales of punishment. The nineteenth century was characterized by significant albeit isolated experiments in prison regimes premised on offenders’ reintegration and by a theoretical debate on the consistency of reeducative goals and methods with penal liberalism. With the rise of criminological reformism between the 1870s and the 1920s, the rehabilitative principle became the basis for theoretical rethinking of the rationale of punishment and the justifications of structural sentencing reforms. Paradoxically, the growing importance of alternatives to imprisonment and reformative treatment was always associated, in discourse and in practice, with incapacitation.  This inherent contradiction characterizes the rehabilitative ideal to the present day. Recently, even more than the constitutionalization of rehabilitation in some countries and its recognition by international law authorities, the jurisprudence of supranational courts seems to open new prospects for recognition of resocialization as a right of the offender.

"The Limits of 'Punishment'"

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

“Punishment” is an all-important category in criminal legal thought.  Conventional scholarship adopts a narrow definition and focuses on justifying penal sanctions.  Much critical work, in contrast, seeks to expand the category — defining more practices and institutions as “punishment.”  In this Article, I argue that the focus on purposes of punishment and on what constitutes punishment distracts from a larger theoretical and practical issue — much of what the criminal system does probably isn’t punishment as such.   Certainly, a carceral sentence is punishment.  But what about a curfew requirement for a defendant awaiting trial? What about a restriction on gun ownership post conviction?  What about a traffic stop?  Each of these restrictions on liberty or interactions with the criminal system might be stigmatizing or cause great hardships.  So, it might be tempting to categorize them as “punishment.”

While I am skeptical of conventional formalist definitions of “punishment,” I argue that striving to define more acts or institutions as “punishment” actually doesn’t accomplish much — as a doctrinal matter, judges are reluctant to afford defendants increased substantive or procedural rights in this realm.  As a theoretical and even rhetorical matter, the punishment frame undersells the nature and scale of the carceral state.  I argue instead that it might be more helpful to focus on “criminal justice” as a form of governance — a constellation of institutions and approaches that sometimes punish, sometimes deliver services, and sometimes do social control.  Sometimes these institutions perform all three functions (and more), and that’s a major problem with the U.S. criminal system.

"Participatory Expungement"

The title of this post is the title of this paper authored by Brian Murray recently posted to SSRN.  Here is its abstract:

Most jurisdictions that permit expungement draw the line at certain crimes — usually those implicating one or more victims, serious risks to public safety, corruption, or breach of the public trust.  This is unsurprising given how these crimes relate to the moral underpinnings of the criminal law in a democratic society.  This Essay explores, given the overall direction of expungement reform, whether expungement should reach more offenses and by what procedural means.

More specifically, it suggests the community’s interest in adjudicating expungement increases with the seriousness of the criminal record, whereas for lower-level criminal records, the petitioner’s interest in reintegration can outweigh the preference for community involvement.  As expungement reform climbs the ladder of offense seriousness, a dose of community involvement becomes more justifiable.

Given that expungement relates to the propriety of ongoing stigma and punishment, exempting the community from adjudication becomes increasingly problematic on political, ethical, and legal grounds as the severity of the criminal record increases.  In a democratic legal system, the community must have the ability to express its will about the purposes and functions of the criminal law through adjudication.  Second, the American constitutional tradition prefers community involvement in criminal matters.  Third, communities should be involved in shaping and creating second-chance norms when they are desirable.  “Participatory expungement” is warranted when the most significant normative questions relating to the criminal law are present, leaving room for development of a culture of second chances when the community thinks it is justified.

"The Eugenic History of Habitual Offender Laws"

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

Habitual offender laws are widely understood to have emerged from the toughon-crime movement in the late 1900s.  That understanding is inaccurate.  This Article argues that habitual offender laws did not emerge from the tough-oncrime movement in the late 1900s but instead from the eugenics movement in the early 1900s. Habitual offender laws were designed to prevent "habitual offenders" from reproducing and spreading their "type."  They were sterilization by another means.  This Article documents that history and in doing so corrects a longstanding misconception about the origin and intent of habitual offender laws-with implications for the habitual offender laws that are currently in force in 49 states.

SCOTUS struggles with supervised release revocation reasons in Esteras oral argument

The Supreme Court heard oral argument yesterday in Esteras v. US, No. 23-7483, which is one of a number of federal statutory interpretation criminal cases on the SCOTUS docket this Term.  And this one is a sentencing case, with this question presented:

The supervised-release statute, 18 U.S.C. § 3583(e), lists factors from 18 U.S.C. § 3553(a) for a court to consider when sentencing a person for violating a supervised·release condition. In that list, Congress omitted the factors set forth in section 3553(a)(2)(A) -- the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense.

The question presented is: Even though Congress excluded section 3553(a)(2)(A) from section 3583(e)'s list of factors to consider when revoking supervised release, may a district court rely on the section 3553(a)(2)(A) factors when revoking supervised release?

Sentencing fans may be both intrigued and frustrated by the Esteras oral argument (audio and transcript available here), which ran a full 75 minutes and had me reacting with "hmmm" and "huh?" at various points.  Helpfully, Law360 has this effective review of the argument, and here are excerpts:  

Lower court judges have strayed from what Congress says are the only factors that may be considered when sentencing offenders for violating their supervised release, the Supreme Court heard Tuesday, as the justices address a circuit split regarding the purposes of such sentences....

The petitioners — Edgardo Esteras, Timothy Jaimez and Toriano Leaks — were each sent back to prison for breaking supervised release rules, based in part on district court rulings that cited punishment, among other factors, as justifying prison terms following the revocation of supervised release. Adding to a deep circuit split, the Sixth Circuit affirmed, joining four other appeals courts in finding that judges can take into account all the 3553a factors in sentences for violating supervised release....

An attorney for the petitioners, Christian Grostic of the office of the Federal Public Defender for the Northern District of Ohio, told the justices that Congress clearly precluded consideration of Section 3553a's so-called retribution factors when judges sentence offenders for supervised release violations, given that such sentences aren't meant to be punitive....

The Supreme Court seemed to be divided on the feasibility of the petitioners' preferred outcome. Multiple justices brought up the question of how judges would exclude Section 3553a's retributive factors from a supervised release sentencing, given that those considerations can overlap with the factors specifically listed for consideration by congress....

Masha Hansford of the Solicitor General's Office told the high court that the statute governing what factors must be considered by a judge conducting a supervised release sentencing doesn't prohibit consideration of other factors, as Esteras and the others contend....

The justices' ruling could affect thousands of cases each year, the petitioners say, pointing to research by the U.S. Sentencing Commission, which found 108,000 federal supervision violations from 2013 to 2017, with 86% of those resulting in a new prison term.

You be the judge: what federal sentence for prominent elderly state legislator convicted on 10 of 23 corruption counts?

The question in the title of this post is prompted by this lengthy Chicago Tribune article reporting on the results of a lengthy trial and jury deliberation under the headline "No sweep for either side, but Madigan jury’s split verdict still offers ‘historic’ corruption conviction." Here are a few details with a focus on a few legal particulars:

Illinois House Speaker Michael Madigan minced no words on the day Democratic Gov. Rod Blagojevich, his longtime political nemesis, was arrested on federal corruption charges in December 2008. “Today’s events are shocking and disappointing,” Madigan, the then-leader of the state Democratic Party, said on that infamous day 16 years ago. “It represents a new low for conduct by public officials.”

At the time, Blagojevich was the latest in a depressing array of governors, state legislators, county commissioners and aldermen accused of selling out the public’s trust for personal gain. On Wednesday, a federal jury added Madigan to that same, sad parade.

In a verdict sure to reverberate across the political landscape, the jury found Madigan, once the most powerful politician in the state, guilty of bribery conspiracy and other corruption charges alleging he used his public office to increase his power, line his own pockets and enrich a small circle of his most loyal associates.

But neither prosecutors nor Madigan could declare total victory. Jurors’ final verdict was overall mixed, deadlocking on several counts — including the marquee racketeering conspiracy charge — and acquitting Madigan on numerous others. Jurors also deadlocked on all six counts related to Madigan’s co-defendant, Michael McClain.

Jury foreman Tim Nessner told the Tribune late Wednesday that the panel was deadlocked 11-1 in favor of acquittal on the main racketeering charge as well as several other counts. He also said he felt much of the prosecution was “government overreach.”...

The split verdict does not avert the possibility of a significant sentence for Madigan, who turns 83 in April.  Several of the guilty counts carry a maximum of 20 years in prison, according to the U.S. attorney’s office.  No date has been set for Madigan’s sentencing.

It was a complicated conclusion to a complicated case, and leaves prosecutors to decide whether to go for a retrial. Speaking to reporters after the verdict, acting U.S. Attorney Morris Pasqual said it was too soon to make a decision on how to proceed. “We will obviously closely discuss the developments … and at the appropriate time we’ll make a decision about whether to seek a retrial,” Pasqual said....

Madigan was convicted on 10 of 23 counts, including one count of conspiracy related to a multipronged scheme to accept and solicit bribes from ComEd. Jurors also convicted him on two counts of bribery and one Travel Act violation related to payments funneled to Madigan associates for do-nothing ComEd subcontracts.

Madigan was also convicted on six out of seven counts — including wire fraud and Travel Act violations — regarding a plan to get ex-Ald. Daniel Solis, a key FBI mole who testified at length in the trial, appointed to a state board.

Jurors acquitted Madigan of one bribery count related to that plan. That charge specifically alleged Madigan took steps to find a board seat for Solis through the administration of incoming Democratic Gov. JB Pritzker.  One of the last pieces of evidence jurors heard before closing arguments was a stipulation that, if called to testify, Pritzker would say he has no recollection of discussing a Solis appointment with Madigan.

Jurors also acquitted Madigan of a bribery charge alleging he tried to have Juan Ochoa, a onetime political nemesis, put on the ComEd board. In addition, he was found not guilty of one Travel Act violation related to the ComEd scheme. And Madigan was acquitted of all four counts related to an alleged scheme to pressure developers of a West Loop high-rise into giving business to his law firm....

The verdict caps one of the most significant political corruption investigations in Chicago’s sordid history and cements an extraordinary personal fall for Madigan, the longest-serving state legislative leader in the nation’s history who for decades held an iron-tight grip on the House as well as the state Democratic Party.

There are a lot more details about Madigan and this trial in the full Tribune article, and many more details will surely be relevant to the determination of Madigan's advisory sentencing guideline range and at his eventual sentencing.  But, particulars aside, the foundational question at a forthcoming sentencing would seem to be whether and how much prison time would be fitting for a 83-year-old prominent career politicial convicted of some (but not a majority) of corruption charges.

"Early Termination: Shortening Federal Supervision Terms Without Endangering Public Safety"

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

In the U.S. federal system, courts have the discretion to grant early termination of supervision for people on federal probation or supervised release under certain circumstances.  This study sought to provide a profile of who was most likely to receive early terminations by examining 296,023 people whose supervision terms were successfully closed via early or regular termination during the 10 years encompassing fiscal years 2014 through 2023.  Several research issues were explored, including the extent to which a supervisee’s risk profile correlated with the use of early termination and an examination of whether early terminations endangered community safety.  Overall, research showed that this closure type had moderate correlations with a supervisee’s risk profile; however, other factors — including supervision time imposed and, most importantly, district of case closure — had the greatest bearing on whether a case would end by early termination.  Moreover, using a process in which early and regular termed supervisees were matched on a variety of criteria associated with the risk of recidivism, the study found that early terminations did not threaten community safety.

"Is Death Different?"

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

This Article attempts to unite the movements against the death penalty and mass incarceration.  The central argument is that many noncapital sentences are in the same category of injury as the death penalty.  Thus, whatever the law says (or ought to say) about the legitimacy of the death penalty, it should also say about these noncapital sentences.  In this way, I reject the premise of our Eighth Amendment jurisprudence that "death is different." 

The Article first considers how exactly the death penalty harms a person, given the fact that everybody is going to die.  It argues that the death penalty moves up a person's death date dramatically, likely by decades.  Given the sequential and progressive nature of human existence, such a loss of time grievously interferes with one's unfolding life as a whole.  The early death promised by capital punishment means that one's life will remain to some awful extent incomplete, without the fruition or redemption that the future years may have had in store.  The Article then demonstrates that certain prison sentences –– especially but not only decades long sentences –– harm individuals in a similar manner.

"Is Prison Abolitionism Self-Defeating?"

The question in the title of this post is the title of this new essay authored by Youngjae Lee and now available via SSRN. Here is its abstract:

This Essay argues that prison abolitionism is self-defeating in three ways.  First, putting pressure on the basic criminal justice model and seeking to eliminate it may increase the impetus to resort to alternative modes of preventing harm that focus on prediction and prevention, as opposed to a system of notice followed by punitive consequences in response to conduct in willful violation of rules.  As a result, we may end up fueling a system that is even more liberty-restricting than a system that is premised on the idea of choice and consequences.  Second, operating the kind of vast network of robust social services that abolitionists typically favor as an alternative to prisons requires rules administered through institutions and personnel, and enforcing the rules and protecting the administrative apparatus from abuse, fraud, and sabotage may require threats of unpleasant consequences, including imprisonment.  By committing to a future without prisons, abolitionists may be making unavailable an important tool that can help bring about the world in which important primary goods are provided by the public sector.  Third, prison abolitionism’s tendency to deemphasize individual responsibility and describe undesirable behavior as a byproduct of impoverished social conditions brought about at least in part by injustice may bring us closer to a world in which the picture of humans as autonomous beings deserving of dignity is replaced with the picture of humans as potential carriers of risk who need to be shaped, managed, treated, and even institutionalized in advance if necessary. 

"Is civil commitment rehabilitating sex offenders — or punishing them?"

The question in the title of this post is the subtitle of this new Harper's Magazine article titled "The Forever Cure." Here is an excerpt:

As a wave of civil-commitment laws passed in the Nineties and Aughts, many critics questioned how effective they would be at curtailing sexual abuse. More recently, a growing body of research has borne out their concerns: as a 2013 Brooklyn Law Review article put it, “SVP laws have had no discernible deterrent or incapacitation effects.” Some opponents have argued that civil commitment diverts resources from more effective programs such as structured therapy and education and risk-management programs. In 2024, for instance, the SPTP’s budget was $33.7 million, which works out to nearly $130,000 per resident. Rather than spending billions on a “regime that has continued to fail to adequately protect children,” a 2023 Johns Hopkins University–led study concluded, states should invest in programs that can better “prevent child sexual abuse in the first place.”

Even some who oversee long-established civil-commitment programs have questioned their efficacy. Robin Wilson, the clinical director of Florida’s civil-commitment program from 2007 to 2011, believes that treatment should begin at the outset of a prison sentence, not after it has ended, and that most programs start treatment too late to be psychologically helpful. “You end up having people who potentially end up going to treatment long after the treatment would have been most effective, and ultimately for much longer and more intensively than their risk profile suggests,” he told me. “There are better, more efficient, more scientifically defensible, more ethical ways to do this.” In 2014, the research director of Minnesota’s Department of Corrections, Grant Duwe, called on states to consider more intermediate, community-based alternatives to civil commitment, such as intensive parole....

No state has adopted civil commitment since New York did so in 2007 — a sign, perhaps, that many have come to recognize the inefficacy and exorbitant cost of such programs.  But in states where such programs have long existed, few politicians, if any, have shown interest in dismantling them.  “It’s become a political third rail,” Eric Janus, the director of the Sex Offense Litigation and Policy Resource Center at the Mitchell Hamline School of Law, told me. That’s not only because of the bad optics of shuttering a program meant to protect the public, he explained, but also because the facilities provide jobs.  Larned State Hospital, for instance — where the SPTP is the largest program — is one of the biggest employers in town. “You’ve got a lot of people in the community who are just dependent on those jobs,” Rick Cagan, the former executive director of the Kansas chapter of the National Alliance on Mental Illness, told me. “It is a huge cash cow.”

Legal challenges to these programs have largely proved unsuccessful.  In 1997, the Supreme Court ruled 5–4 against a man in Kansas who argued that civil commitment constituted a form of double jeopardy. The process was civil, not criminal, the ruling explained, and therefore not a form of punishment.  In 2002, the court again upheld the practice, expanding the grounds on which states could commit someone, and leaving little hope for the roughly six thousand people currently held under civil commitment.

Many experts reject the Supreme Court’s reasoning. “The underlying idea of [civil commitment] is essentially . . . punitive,” Janus told me.  And in 2023, an unpublished internal survey of programs in seventeen states conducted by the Sex Offender Civil Commitment Programs Network, an association of facility employees, found that patients spend far more time in “recreational [and] vocational programming” than they do receiving treatment.  The survey also found that the vast majority of those who have entered civil commitment have never been released.  Under Missouri’s SVP law, unconditional release isn’t even an option.  In Kansas, only 16 of the 380 people ever committed have been discharged; 14 have received conditional release; and 65 have died in custody.  Virtually everyone else remains locked up.

"Grasping the Third Rail: Restorative Justice and Violent Crime"

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

Restorative justice is a means of responding to harm — including criminal offenses — through active accountability and repair, rather than through passive punishment and isolation.  While restorative justice has demonstrated potential to meaningfully improve processes and outcomes for individuals and communities, the implementation of restorative justice programs to address crime — both within and alongside the American criminal system — has been slow, limited, and misplaced.  Programs are often directed at low‑level, nonviolent offenses that involve little if any cognizable harm.  This approach creates two problems.  One, it risks net‑widening: bringing more citizens under criminal surveillance and carceral control for minor offenses — further diluting the constitutional and procedural protections already watered‑down in our misdemeanor courts.  Two, it ignores the research showing that restorative justice is more necessary and more effective in cases where serious harm has occurred.

As restorative justice offerings across the country expand, legislators and prosecutors continue to exclude crimes of violence, particularly domestic and intimate partner violence and sexual offenses, from their initiatives.  These offenses have become the “third rails” of restorative justice.  Yet it is precisely in these cases that conventional criminal system responses are failing.  It is also in these cases that restorative justice has the greatest potential to meet the needs of involved parties and reduce rates of reoffending.  So why are they considered off‑limits?  This is partly due to pervasive misunderstandings and misconceptions of what restorative justice is and how it operates, both in theory and in practice.

It is time to grasp restorative justice’s third rail: to reconsider how and where it is being used in the criminal system and explore what restorative justice could offer in the pursuit of more effective and equitable responses to violent crime.

Facing guidelines recommending decades in prison, former Senator Menendez requests "sentence that relies heavily on alternatives to incarceration"

As reported in this New York Times piece, weeks "before Robert Menendez, New Jersey’s disgraced former U.S. senator, is scheduled to be sentenced for corruption, his lawyers submitted an emotion-laden appeal for leniency based on what they depicted as Mr. Menendez’s hardscrabble upbringing, life of service and devotion to family."  Here is more about the sentencing filing:

As they did during Mr. Menendez’s two-month bribery trial in Manhattan, [his lawyers] suggested that their client’s greatest failing was being led astray by a conniving wife. Nadine Menendez, the former senator’s wife, was charged with her husband with conspiring to trade his political influence for bribes of cash, gold bars and a Mercedes-Benz convertible. Her trial is expected to start next month....

“The evidence showed that Senator Menendez was unaware of activities that Nadine was undertaking, including the receipt and sale of gold bars by Nadine, and cash she stored in her locked closet and her safe deposit box,” the lawyers wrote in their filing.

And in a letter of support also filed on Thursday, Mr. Menendez’s daughter, Alicia Menendez, a high-profile anchor on the cable news network MSNBC, hinted at the sacrifices her father continued to make for his wife, who was being treated for breast cancer....

Her letter is among more than 120 filed on behalf of Mr. Menendez, part of an attempt to justify a prison term far shorter than the 12 years recommended by the court’s probation department. The U.S. attorney’s office for the Southern District of New York, which prosecuted Mr. Menendez, is expected to disclose the government’s sentencing recommendation in the coming weeks....

In Thursday’s filing, the former senator’s lawyers argued that the probation department’s recommendation of a 12-year prison term was “draconian — likely a life and death sentence for someone of Bob’s age and condition.” [The lawyers] suggested that the guidelines instead merited a sentence of no more than 27 months — and even that, they wrote, was too long. They urged Judge Stein to consider a period of imprisonment of less than 27 months paired with “at least two years’ rigorous community service.”

“He is certain never to commit future offenses,” the lawyers wrote about Mr. Menendez. “And his current state — stripped of office and living under a permanent shadow of disgrace and mockery — are more than sufficient to reflect the seriousness of the offenses and to promote respect for the law.”

The full 52-page sentencing filing is available at this link, and concludes with this paragraph:

For the foregoing reasons, the sentencing factors set out in Section 3553(a), as applied to the circumstances of this defendant and case, justify a substantially below-Guidelines sentence that credits Senator Menendez’s lifetime of good deeds and good character, his low likelihood of offending in the future, and the punishment he has already sustained due to his conviction.  As urged by a friend and former member of the Puerto Rican Senate Roberto L. Prats, “please consider that you are sentencing a good man who devoted his entire professional career to serving others. In doing so, he touched the heart and soul of many citizens, me included, asking for nothing in return.” Ex. U (Letter submitted by Roberto L. Prats, Esq.).  We respectfully submit that the Court should impose a sentence that relies heavily on alternatives to incarceration, as such a sentence is sufficient but not greater than necessary to accomplish the purposes of sentencing under 18 U.S.C. §3553(a).

Reduction granted on two bases to remedy extreme stash-house sting sentence

A helpful colleague alerted me to a notable recent sentence reduction ruling/opinion handed down last week in US v. Evans, No. 93-00123-CR (SD Fla. Dec. 10, 2024) (available download below). The case inolves a defendant who was initially sentenced three decades ago to 57 years in federal prison in a so-called "stash house sting" case. (I have posted on the ugly dynamics of stash-house stings in any number of prior posts, and I recommend two episodes of the Drugs on the Docket podcast (here and here).)  

The 33-page ruling in the Evans case should be read in full, as it covers lots of notable factual and legal ground.  The ruling defies easy summarization, and I will here just reprint the start of the opinion and some later notable passages:

Sherlon Evans has served over thirty-one years of a nearly fifty-year sentence, totaling 595 months.  Mr. Evans has now moved for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A), claiming that “extraordinary and compelling” reasons warrant review....   

Mr. Evans cites two “extraordinary and compelling” bases recognized by the recent policy statement issued by the U.S. Sentencing Commission (the “Commission”) as potentially justifying a reduction in sentence.  First, Mr. Evans contends that he is serving an “unusually long sentence” that is subject to a substantive change in law, which would produce a “gross disparity” between the sentence he is currently serving and the sentence that would likely be imposed today. USSG § 1B1.13(b)(6).  Second, Mr. Evans points to the “unique aspects of [his] case” under the “catch-all” provision of § 1B1.13(b)(5), which permits a reviewing court to consider “any other circumstance[s]” that are “similar in gravity” to the other extraordinary and compelling reasons recognized by the Commission.

The Government opposes Mr. Evans’s Motion in its entirety.  It first challenges the validity of the Commission’s new policy, claiming the Commission had no authority to issue it, that the policy conflicts with § 3582(c)(1)(A), and that the policy raises separation of powers concerns.  The Government also argues that even if the new policy is binding, Mr. Evans is not entitled to a reduction under the supposedly compelling reasons he cites.  I reject the Government’s position on both fronts ... and reduce his sentence to time served....

[A]t least forty-three defendants who were convicted through reverse stash house stings have since had their sentences reduced to an average of just three years following protracted litigation against the ATF for alleged racial discrimination in its implementation of reverse stings.  [And] the circumstances of Mr. Evans’s sentence are even more striking in light of the fact that he played a relatively minor role in the conspiracy orchestrated by the ATF and Henry. That is, Mr. Evans was arrested because he was present when Henry planned and executed the “robbery.” I use the term “present,” as “the case against Mr. Evans was one that rose and fell on presence, and nothing more than presence. Presence [at] one meeting in which he may or may not have had very little to say, and presence along with everybody else at the scene of the offense at the time the arrests were made.”  Mr. Evans was not the ringleader or mastermind, did not supply weapons or recruit the other co-defendants into the scheme.  He was not even present when the conspiracy was hatched.  He was a tagalong, a hired hand to assist in the criminal deeds of others. Yet, Mr. Evans was sentenced with nearly the same degree of severity as those who were arguably more culpable in the commission of the crime....

[Other cases in which sentences were reduced] echo my own dismay and discomfort with the concept of a reverse stash house sting.  And when such a process results in a sentence of nearly half a century, that is an intolerable outcome.  To be sure, § 1B1.13(b)(5) may not be a vehicle to question the wisdom of the Government’s policing and prosecutorial practices.  It is a vehicle, however, to question the wisdom of continuing to incarcerate this particular man for another decade or more.  Sherlon Evans has served thirty-one years in federal prison for his presence in a conspiracy that he did not plan or lead, attempting to rob drugs that never existed, and carrying a “machine gun” that wasn’t a machine gun, which he never bought, held, brandished, or used. If his original sentence is left unaltered, Mr. Evans will be well into his seventies when he leaves prison — without having been convicted of actually selling one gram of cocaine or hurting any other person.

Download US v. Evans sentence reduction opinion

New HBO documentary, "Nature of the Crime," examines parole process through two New York murder cases

This short New York Times review flags a new documentary premeiring on Max tonight that seem worth checking out.  Here is the start of the NYT review:

Peering into the heart of the beast we call the justice system, the directors Ricki Stern and Jesse Sweet zero in on parole, a part of the process that usually unfolds behind closed doors.  “Nature of the Crime” offers rare glimpses of the make-or-break interviews that, in more cases than not, deny petitioners their longed-for second chance.  As it traces, over a four-year period, the cycles of hope and despair for two incarcerated men — both in New York prisons for crimes committed in the state — this quiet and affecting documentary is at once an argument for reform and a soul-searching question: Should the guiding principle of criminal justice be retribution or rehabilitation?

The men at the center of the film have been behind bars for more than 30 years.  Todd Scott was 19 when he was charged, alongside three others, with the killing of a rookie police officer in Queens.  Chad Campbell was charged at 14 with committing a horrific double murder in his upstate hometown. Speaking to the filmmakers, and in conversations with their devoted pro bono attorneys, they are thoughtful and sincere.  When they also recall the abuse they suffered as children, they provide context, not excuses.

Highlighting the successes and limited availability of veteran treatment courts

Law360 has this lengthy new piece, headlined "Veterans Courts Help Some, But Leave Many Others Behind," which provides an effective overview of veteran treatment courts and their limits. I recommend the piece in full, and here are excerpts:

Veterans treatment courts have helped thousands of former service members get much needed help for addiction and mental health problems rather than being incarcerated. But strict eligibility criteria, difficulty identifying veterans in the justice system, and a limited number of courts combine to turn away many veterans who most need their services, according to veterans' advocates.

So those advocates are trying to change how the courts operate to ensure that no veteran in need falls through the cracks. "This is not radical. This is about giving a veteran who raised their right hand to serve the United States a hand up, not a handout," said retired U.S. Army Colonel D.J. Reyes, who mentors veteran defendants in Florida. "They made a mistake. Does that mean we just throw them in prison with no rehab or treatment?"...

Hundreds of diversionary courts intended specifically for criminal defendants who served in the military have sprung up across the country since the first veterans treatment court, or VTC, was established in Buffalo, New York, in 2008.

VTCs integrate the criminal justice system, the VA, drug treatment programs, community organizations and veteran mentors to offer help and services rather than incarceration to former service members who run into trouble with the law due to substance abuse or mental health issues.

A growing number of veterans need that help, according to experts, who blame that increase on post-traumatic stress, traumatic brain injuries, addiction, military sexual trauma and difficulty readjusting to civilian life after repeated deployments during the wars in Iraq and Afghanistan.

One in three veterans report having been arrested, according to the Council on Criminal Justice's Veterans Justice Commission. Around 181,000 veterans are currently behind bars, according to All Rise, a nonprofit that provides training and best practices for specialized treatment court programs.

"When we take our young men and women, and we train them to be part of the most lethal force on the planet, and then we ask them to go do their job, some of them struggle when they come home with just being normal again," said Veterans Justice Commission Director Jim Seward.

So VTCs are intended to sentence veterans who plead guilty to usually lower-level, nonviolent offenses to addiction and mental health treatment and mentorship rather than prison. Defendants attend regular treatment sessions, discuss their progress with the court, and undergo random drug testing, among other requirements....

The programs have been successful, according to experts. VTCs help approximately 15,000 veterans each year, according to Scott Tirocchi, division director of Justice for Vets, All Rise's veterans court division.

The court in Hillsborough, Florida, where Reyes mentors defendants, averages a single-digit recidivism rate, he said. In Ohio, Cuyahoga County's court has a graduation rate of 76.2%, according to Judge Andrew J. Santoli, who presides over that VTC. And only 9.1% of the participants of the VTC in Oklahoma County, Oklahoma, are charged with a new offense after completing the program, according to Program Coordinator Kiel Kuroki, a U.S. Air Force veteran who participated in a veterans diversion program himself....

But many of the veterans who most need help aren't getting it, advocates say.  According to the U.S. Department of Justice, VTCs only serve about 10% to 15% of justice-involved veterans....

[T]he exceedingly limited number of VTCs further exacerbates the lack of access.  Around 85% of the counties in America don't have a VTC, and there are barely any veterans courts in the federal court system, according to Seward.

Congress did pass the Veterans Treatment Court Coordination Act in 2020 directing the attorney general to establish a grant program to help fund state and local VTCs, but there seems to be no organized effort to create VTCs at the federal level. Only a few federal VTCs have been established by individual federal judges.... The result is that, while VTCs have helped many service members, a good deal of veterans are still falling through the cracks.

Some of many, many prior related posts:

• Should prior military service reduce a sentence?
• "Military Veterans, Culpability, and Blame" 
• "Justice for Veterans: Does Theory Matter?"
• "Executive Summary: National Survey of Veterans Treatment Courts"
• Notable RAND review of data and research on "justice-involved veterans" 
• CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing" 
• "Best Practices: Report on Improving Veterans’ Incarceration and Reentry in Florida"
• Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans 
• How about some clemency grants, Prez Biden, to really honor vets in need on Veterans Day?

"Major-Questions Lenity"

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

There is a fundamental connection between the historic rule of lenity and the new major questions doctrine.  At their core, both doctrines reflect a commitment to the separation of powers on important questions of policy.  In light of that shared justification, the logic of the newly articulated major questions doctrine in the administrative-law context has much to offer lenity in the criminal-law context, and the major-questions framework is strikingly similar to a rationale that has begun to emerge in some of the Supreme Court’s recent decisions adopting narrow constructions of federal penal statutes.  That emerging rationale can be understood as a modest form of major-questions lenity that may lead to a more robust version of the doctrine.

The Court significantly weakened lenity in the mid-twentieth century, and it now plays virtually no role in the construction of federal penal statutes.  Instead, the Court relies on a set of more targeted interpretive tools for narrowly construing certain penal statutes.  The practical effect is a regime of partial leniency that deprioritizes the generic separation-of-powers value on which historic lenity was based while elevating more targeted concerns.  As a result, for most penal statutes, the principle that clear crime definition is the legislature’s obligation has been lost, and outcomes often turn on whether courts will exercise implicitly delegated lawmaking authority to adopt narrow constructions on a largely discretionary and ad hoc basis.

A robust major-questions lenity would work to restore historic lenity’s insistence on legislative clarity in crime definition.  It would promote the separation of powers by disciplining prosecutors, courts, and ultimately Congress.  Major-questions lenity would substantially limit the practice of implicit delegation of crime definition and help to curb the adoption of overly broad and literalistic constructions of penal states in the lower courts.

Are "pragmatic prosecutors" now the next big thing?

The question in the title of this post is promoted by this new piece from Lisel Petis over at R Street, which is titled "Move over progressive prosecutors, pragmatic prosecutors are the new 'it' thing."  Though I have never been an "it" thing, I do sometimes think of myself as pragmatic, so I am intrigued by this latest prosecutorial version of "new Coke."  I recommend the piece in full, and here is how it gets started (with links from the original):

If you follow the arc of criminal justice over the past few decades, you can see clear trends emerge. From the “tough on crime” era of the 1980s and 1990s that fueled mass incarceration to the progressive wave advocating sweeping reforms that were intended to keep more people out of jails and prisons, the pendulum has swung dramatically in just a short period of time.  But now we are entering what might be a “sweet spot” that better balances fairness and safety. Evidence of this trend is apparent in a new kind of prosecutor popping up in states across the country. 

Despite a recent drop in national crime rates—and drastic reductions since the 1990s — public concern about crime and safety remains high.  High-profile incidents, sensationalized media coverage, and a rise in homelessness have fueled a perception that crime is getting worse.  Much of the blame has been directed at so-called “soft-on-crime” policies and progressive prosecutors, whose reforms — such as reducing the use of cash bail, diverting low-level offenders from the system, and shorter sentences — are often criticized as prioritizing offenders over victims.

Enter the pragmatic prosecutor. This “new” type of prosecutor isn’t about choosing sides between punitive crackdowns or lenient approaches. Instead, they are reimagining justice as a complex ecosystem that requires strategic, targeted interventions that draw from the strengths of both philosophies.

"Punishment and Resources"

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

Philosophers of punishment have paid little attention to resource constraints, which have an undeniable impact on how various approaches to punishment work in the real world.  It has fallen on economists, with their central focus on scarcity and opportunity cost, to analyze the resource demands of different philosophies of punishment.  However, the utilitarian nature of mainstream economics limits the scope of economic theories of punishment to deterrence, which fits naturally into mathematical economic techniques, as opposed to retributivism, the principled nature of which resists quantification. 

This chapter explores the resource implications of punishment.  It starts by identifying shortcomings of the economic analysis of deterrence, and then considers proposals from economists and legal scholars to incorporate resource constraints into retributivism, many of which introduce some degree of quantification or consequentialism.  The rest of the chapter proposes an alternative choice procedure, based on the theory of judicial decision-making of Ronald Dworkin, which enables incommensurate principles and goals to be considered and balanced against each other, with resource constraints serving a secondary role in resolving conflicts.  This way of including resource concerns into discussions of punishment emphasizes their importance while avoiding the reduction of all aspects of punishment to the terms of efficiency, which would distort their true nature and introduces unnecessary noise and inaccuracy to the analysis.

"Classical Liberalism and Crime Prevention"

The title of this post is the title of this new paper just posted to SSRN authored by Nick Cowen. Here is its abstract:

This chapter discusses what crime is, why it provokes government action, and the problems of both private and public approaches to crime prevention.  For classical liberals, crime is deliberate or reckless harm imposed on persons and their property through violence or deception.  Besides violating people’s interests as moral equals, crime weighs heavily on commercial societies as it raises the costs of production, trade and exchange with strangers.  Crime is a significant challenge because it is: a) a disequilibrium phenomenon resulting from an information asymmetry between potential victim and offender; b) imposes externalities on the community that are hard for isolated actors to internalise; c) frequently causes more harm than apprehended offenders could realistically compensate.  Private crime prevention strategies use insurance, security, reputation, and bargaining with potential offenders to face this challenge.  The success of private crime prevention is often underrated.  Nevertheless, only capable states have so far managed to reduce violent crime to low levels by historical standards.  State solutions bring their own problems as they allow for predation and the imposition of externalities through the ‘legitimate’ political process.

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

"A Liberty-Balancing Approach to Crime"

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

At its core, the criminal legal system is an ecosystem of institutions that seek to balance liberty interests.  The insightful theories and complex practices of crime policy coalesce around questions on how crime impacts the liberties of individuals and communities to be safe, and how this correlates with the deprivation of liberty from offenders through our punishment system.  But modern criminal policy, most often associated with the problems of overcriminalization and mass incarceration, has wholly abandoned any such delicate and nuanced balancing.  Instead, the system thrives on sacrificing the liberties of offenders in a perverse and ineffective regime that leads to a net loss of liberty for all.

This Article argues for a new theoretical framework that prioritizes the liberty-balancing function rooted in criminal punishment.  This Liberty-Balancing Approach incorporates contributions from constitutional and political theory to argue that substantive criminal laws should be conceptualized as a political exercise that defines and protects a narrow set of individual liberties.  In turn, protecting these individual liberties must be contextualized within broader community interests of public safety and building public trust.  Finally, these criminal laws and ultimately their punishments must be properly balanced with depriving only as much liberty from the offender as is necessary and legitimate to achieving these social outcomes.  This return to first principles in criminal law also explores the practical impacts of the Liberty-Balancing Approach, including rethinking victimless proxy crimes, crimes against organizations, and the liberty impacts on communities of color.

Judicial Conference’s advisory committee for criminal rules recommends no change to camera ban

As reported in this recent Bloomberg Law piece, "A judiciary panel has recommended against revising a rule that prohibits broadcasting of federal criminal trials, following a push to permit cameras ahead of potential trials involving former President Donald Trump." Here is more:

Members of a subcommittee created last year to study the issue raised concerns that allowing criminal trials to be broadcast “would have a negative effect on witnesses and victims in criminal cases” and “stressed the need for a cautious approach to broadcasting in criminal cases,” according to a recently published October memo to the full committee.

Panel members cited examples of cases involving sexual abuse, gangs, and confidential informants where broadcasting could chill witness cooperation. And they worried the policy allowing audio broadcasting of some civil cases is too new to expand to the criminal context.

The panel said if there is “continued interest” in broadcasting criminal cases, the issue could be revisited after enough time has passed for that policy change to be formally reviewed.

The memo, dated Oct. 9, was authored by Professors Sara Sun Beale of Duke University School of Law and Nancy King of the Vanderbilt University Law School, reporters for the Judicial Conference’s advisory committee on criminal rules, and included in materials released ahead of the committee’s scheduled meeting next month.

Because I am an advocate of increased criminal justice transparency and accountability, I find this news disappointing, but not especially surprising.  I fully understand the need for some (perhaps many) proceedings to shielded from any broadcasting, but a blanket ban with no exceptions seems a bit too cautious to me.

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

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

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

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

Exploring originalism and criminal justice at this SCOTUS moment

Cristian Farias has this terrific new essay at Inquest titled "Playing with Originalism: Should advocates looking to unwind our nation’s punitive excesses engage a Supreme Court that set them in motion?". This essay covers a lot of topics and ideas I have been thinking about lately, and topics and ideas at the untersection of originalism and criminal justice that I think merit a lot more attention. I recommend the piece in full, and here are just a few snippets:

In [certain] justices’ vision, text, history, and tradition rule the day, and every manner of law and policy must yield to it.  In this reality, could progressive originalism, as it were, be a tool for justice?...  The current Founding-era fervor among the justices, the thinking goes, could only set things back, since originalist rulings — on abortion, guns, the death penalty, and so much else — have reliably favored unpopular policy positions that conservatives welcome.  One former public defender turned seasoned advocate told me that, at this time, getting issues he cares about in front of the Court is simply a nonstarter: “My job is to keep cases away from the Supreme Court.”

But not everyone is on the same page.  Some advocates simply don’t have the luxury of not pursuing every available legal recourse for clients facing the loss of liberty or worse. If that means a long-shot Supreme Court appeal parsing what words meant nearly 250 years ago, they’ll go for it.  And they’re not the only ones on the broad progressive spectrum willing to engage with originalism on its own terms. A school of progressive legal thought constitutional scholar Jack Balkin calls “living originalism” maintains that the slaveholding Framers purposely left room in the written Constitution for newfangled protections for civil rights, the environment, and other causes that progressives hold dear.  Justice Ketanji Brown Jackson has been known to embrace arguments along these lines, leaving many to wonder if her appointment to the Supreme Court means some version of progressive originalism is here to stay....

Federal public defenders are among those thinking most seriously about how to craft arguments suited to the Supreme Court we have now. In the wake of New York State Rifle & Pistol Association v. Bruen, which in 2022 ruled that judges must in effect use originalism to assess firearm restrictions under the Second Amendment, federal defenders have been at the forefront of challenging a broad array of criminal prohibitions on gun possession....

And in areas where neither originalism nor any other sensible mode of constitutional interpretation guided the justices’ work in decades past, as in those cases [Rachel] Barkow has identified [in her new forthcoming book], the sky may well be the limit.  “I think there’s space for advocates to push the court, and I think they should,” Barkow said.

"Categorical Declinations & Democracy"

The title of this post is the title of this new paper now available on SSRN authored by Brenner Fissell. Here is its abstract:

The most contentious action taken by reform prosecu­tors has been the issuance of categorical declination policies. Opponents decry this as bureaucratic nullification­ of democratically enacted offenses, while the prosecutors themselves counter that they are responding to the will of their local electorate.  Democracy claims, it appears, have taken center stage in this debate, and they are deployed by both sides.  How should we think about democracy and categorical declinations?  The most comprehensive scholarly work on this subject is a 2021 article by Professor Kerrel Murray.  In this essay, I hope to continue the work begun by M­urray, offering additional insights that bear on the relationship of categorical declinations and democracy.

Most significantly, I aim to bring to this conversation the tools of deliberative democratic theory — a vision of democracy that is extremely influential, but not taken up by Murray.  Viewing deliberation as the touchstone of democracy, as this theory does, has implications for both (1) the institutional site for decriminalization decisions, and (2) the type of offenses that might be legitimately decriminalized by declination.  State legislatures are structurally superior deliberative bodies, but local prosecutors can ameliorate their deliberative deficits by seeking ratification of their decisions by local legislatures.  Moreover, deliberation rests on a deeper commitment to the mutual respect for the freedom and equality of other persons, and this commitment suggests that there is an upper limit on the severity of crimes that can be legitimately declined.  Declination of serious offenses asks too much of the state-level co-citizens who enacted the offenses, in that it asks them to abandon their reciprocal concern for the lives of their local brethren. Conversely, reciprocal concern suggests that purely victimless crimes can be subject to declination with far less democratic concern, as there is no co-citizen whose basic liberties are infringed through the elimination of the protection of the law.  The actual practice of reform prosecutors appears to treat crime severity as an important consideration, as no prosecutor has attempted to decriminalize a serious felony.

"Measuring Punishment Severity"

The title of this post is the title of this book chapter authored by Adam Kolber (for this forthcoming book on the philosophy of punishment), which was recently posted to SSRN. Here is its abstract:

If punishment is ever morally appropriate, it will only be so in amounts that fit the circumstances.  We cannot possibly punish justly without at least some ability to measure punishment severity.  Since punishment is often thought to require an intentional infliction, one might think punishment severity depends on the severity punishers intend.  But since real-world punishment practices include both intended and unintended inflictions, the "intent approach" to severity fatally ignores unintended harms.  Our punishment practices cannot be justified unless we justify their side-effect harms as well.  The "harm approach" to punishment severity, by contrast, focuses not on intentions but on foreseeably caused harms.  Because the harm approach measures what needs to be morally justified, it better fits theories that seek to justify punishment practices.  It also fits well with our intuitions about severity: those punished care little about what punishers intend and a lot about how much they are harmed.  Once harm is properly measured, however, our traditional notions of retributive proportionality look surprisingly unattractive, and two seemingly plausible ways of fixing proportionality fail.

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

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

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

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

"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.