Sentencing Law and Policy

In lengthy statements, Justices Alito and Gorsuch take issue with (modern, originalist?) Confrontation Clause jurisprudence

In the (decidedly non-originalist) opinion in Williams v. New York, 337 U.S. 241 (1949), the Supreme Court rejected arguments that a defendant had a right to confront witnesses whose testimony was used against him by a judge at sentencing.  The textual and historical basis for this ruling has never seemed especially solid, as evidenced by law review articles here and here.  And yet, courts continue to state and hold that "a sentencing court is ... not bound by the Confrontation Clause." US v. Raheem, No. 23-5324 (6th Cir. Feb. 12, 2025), even though 20+ years ago the Supreme Court recast Confrontation Clause jurispudence in originalist terms with its landmark ruling in Crawford v. Washington, 541 U.S. 36 (2004). 

I provide all this backstory to highlight why sentencing fans, and not just trial lawyers, ought to be intrigued by two extended statements, appearing at the end of today's Supreme Court order list, authored by Justices Alito and Gorsuch in conjunction with a denial of certiorari in Franklin v. New York.  Justice Alito's statement runs four pages and Justice Gorsuch's runs eight; both statements call for reconsideration of the originalist(?) jurisprudence that has developed since Crawford.  Here is how Justice Alito's statement concludes:

[A]s both JUSTICE GORSUCH and I recognize, the current state of our Confrontation Clause jurisprudence is unstable and badly in need of repair.  If we undertake that project, we should not limit our efforts to an attempt to shore up what may be a fundamentally unsound structure.

If we reconsider Crawford, as I think we should, the result might be a reaffirmation of Crawford or the adoption of an entirely different Confrontation Clause rule. But whatever the outcome might be, reconsideration is needed.

Intriguingly, Justice Alito's statement suggests he would be drawn to a more limited application of the Confrontation Clause as part of the "reconsideration"' that he says is "needed."  But Justice Gorsuch's statement concludes with a footnote seemingly pushing in the other direction: "reexamining the relevant history might well require us not only to “reaffir[m]” Crawford, as JUSTICE ALITO suggests, ante, at 4, but to broaden its protections."

Unsurprisingly, neither Justice speaks to sentencing issues in their statements, but their statements take me back to my Sentencing Matters Substack substack post a few months ago, "Initial musings on the Supreme Court’s originalist turn and sentencing issues."  In that post I noted that "many modern sentencing doctrines and practices seem still in tension with a robust originalist approach to the Sixth Amendment."  I do not expect these new statements to change this story.  Still, I think it quite important, quite telling and quite notable that at least two Justices are seemingly eager to reconsider a (problematic?) criminal justice jurisprudence that has already taken an originalist turn while there are so many other (problematic!) criminal justice doctrines that have not yet been given much, if any, serious originalist attention.

"Public support for universal second look sentencing, a research note"

The title of this post is the title of this notable new article from multiple authors just published in the journal Criminology.  Here is its abstract:

Based on a 2023 national YouGov survey (N = 800), we explored public support for universal second look sentencing — the view that all incarcerated individuals, not just those who committed their crimes before they were age 25, should be eligible to have lengthy sentences revisited by judges after serving 15 to 20 years in prison.  A majority of Americans supported a universal policy, with only 1 in 5 respondents opposed.  Multivariate analyses showed that redeemability is not static but dynamic. It can be earned if incarcerated people signal their reformation by completing rehabilitation programs and receiving a positive recommendation from the warden. Support from the victim (or their family) also matters.  Given the public's endorsement, second look sentencing may be a viable policy to address mass incarceration and the problem of extreme prison terms.

Supreme Court, by 7-2 vote, rules that an omission can involve the “use of physical force” in Delligatti

This morning the US Supreme Court handed down an opinion in favor of the government on a statutory issue in Delligatti v. US, No. 23–825 (S. Ct. March 21, 2025) (available here).  The opinion for the Court, authored by Justice Thomas, begins and ends this way:

Title 18 U.S.C. § 924(c)(3)(A) defines a “crime of violence” to include a felony that involves the “use of physical force” against another person. In the context of a closely related statute, we have held that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force.” United States v. Castleman, 572 U. S. 157, 169 (2014). This case asks whether that principle extends to § 924(c)(3)(A) and, if so, whether the principle holds in cases where an offender causes bodily injury by omission rather than action. We answer both questions in the affirmative....

The knowing or intentional causation of injury or death, whether by act or omission, necessarily involves the use of physical force against another person. The judgment of the Court of Appeals for the Second Circuit is affirmed.

Justice Gorsuch authored a lengthy dissent, which was joined by Justice Jackson, and which starts this way:

Imagine a lifeguard perched on his chair at the beach who spots a swimmer struggling against the waves. Instead of leaping into action, the lifeguard chooses to settle back in his chair, twirl his whistle, and watch the swimmer slip away. The lifeguard may know that his inaction will cause death. Perhaps the swimmer is the lifeguard’s enemy and the lifeguard even wishes to see him die. Either way, the lifeguard is a bad man. In many States, he may be guilty of a serious crime for failing to fulfill his legal duty to help the swimmer. But does the lifeguard’s offense also qualify under 18 U. S. C. §924(c)(3)(A) as a “crime of violence” involving the “use . . . of physical force against the person . . . of another”? The Court thinks so. I do not. Section 924(c)(3)(A) may reach many crimes, but it does not reach crimes of omission.

"Our Anemic Excessive Fines Clause: Are State Courts Following the Federal Lead?"

The title of this post is the title of this new paper authored by Michael O'Hear and now available via SSRN. Here is its abstract:

In 2019, in Timbs v. Indiana, the United States Supreme Court held for the first time that the Eighth Amendment Excessive Fines Clause is incorporated into the Fourteenth Amendment and thus limits the fines that can be imposed by state and local authorities.  In its opinion, the Court suggested that the Clause might be used to rein in the controversial and growing reliance of American governments on economic penalties -- a practice that is said to warp law-enforcement priorities and shift public expenses from ordinary taxpaying sources to the socioeconomically disadvantaged.  However, Timbs was decided against a backdrop of well-established, contrary jurisprudential patterns in the lower federal courts. The federal case law has consistently adopted narrowing interpretations of the Excessive Fines Clause, which have left the Clause largely ineffectual as a matter of federal practice.

Timbs seemed to invite state courts to engage differently with the Clause.  Have they?  This Article provides the first systematic survey of the post-Timbs state case law on the Excessive Fines Clause.  On the whole, state courts are following the federal lead, although the case law in a handful of states holds out the possibility of a more robust understanding of the Clause.  In particular, if the emerging case law in Washington proves influential with other states, there remains some possibility that the promise of Timbs will be realized.

Louisiana completes its first execution in 15 years and its first by nitrogen gas

As reported in this local article, "Louisiana executed death row prisoner Jessie Hoffman on Tuesday evening, killing him with nitrogen gas, a method never before used in the state." Here is more:

The execution was Louisiana's first in 15 years. Hoffman was convicted in the 1996 murder and rape of Mary "Molly" Elliott, a 28-year-old advertising executive who was abducted the day before Thanksgiving and shot in rural St. Tammany Parish....

Shortly before Hoffman was set to be executed, a closely divided U.S. Supreme Court rejected a request from his attorneys to issue a stay in his case. Hoffman had argued to them that breathing nitrogen gas would violate his Buddhist beliefs.

U.S. Supreme Court Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson disagreed with the majority decision and said they would grant a stay for Hoffman. Justice Neil Gorsuch also wrote a dissent, saying both the federal district and appeals courts in Hoffman's case should have considered his claim about the execution method violating his faith under the Religious Land Use and Institutionalized Persons Act.

The Supreme Court order denying a stay, with Justice Gorsuch's short written dissent, is available at this link.

Trying to understand Prez Trump's unclear claims about former Prez Biden's pardons

Prez Trump via this Truth Social post makes a variety of unclear claims while asserting that "many" of former Prez Bidens pardons "are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT." Like many social media postings, there seems to be more rambling than argument in Prez Trump's post, and here is the full text:

The “Pardons” that Sleepy Joe Biden gave to the Unselect Committee of Political Thugs, and many others, are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT, because of the fact that they were done by Autopen. In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them! The necessary Pardoning Documents were not explained to, or approved by, Biden. He knew nothing about them, and the people that did may have committed a crime. Therefore, those on the Unselect Committee, who destroyed and deleted ALL evidence obtained during their two year Witch Hunt of me, and many other innocent people, should fully understand that they are subject to investigation at the highest level. The fact is, they were probably responsible for the Documents that were signed on their behalf without the knowledge or consent of the Worst President in the History of our Country, Crooked Joe Biden!

I am not aware of any legal holdings or even suggestions that a properly authorized presidential pardon signed by autopen would be legally invalid.  Indeed, a 2005 Justice Department opinion explained why autopen could be used to sign bills into law, and I do not think this view has ever been legally challenged.  (That said, if it was undisputed that someone else "executed pardons by autopen" without a President's express approval or even knowledge, it seems reasonable to expect such "fake pardons" would be deemed fraudulent and invalid.)  Given that Prez Trump has long had an uneasy relationship with the truth in various contexts, I am disinclined to credit his assertions (or "declarations") in this context.

That said, it seems worth noting that even an entirely valid pardon, preemptive or otherwise, likely would not generally serve to prevent someone from being "subject to investigation."  Though a federal pardon generally can and does preclude any and all federal criminal prosecutions/punishments, state criminal actions as well as federal and state civil actions (and related investigations) are generally not formally or informally precluded by pardons.  

In the end, I suspect Prez Trump's posting is primarily an effort to create a news cycle around his perceived "enemies," and not a statement that his administration is planning to pursue federal criminal prosecution of some who received clemency from former Prez Biden.  But, given all the unpredicatable and chaotic developments less than two months into Prez Trump's second term (including in the clemency spece), I know better than to make any firm predictions here. 

Split Fifth Circuit panel vacates preliminary injunction to allow Louisiana to move forward with nitrogen gas execution

As reported in this post a few days ago, a federal district judge entered a temporary injunction to prevent Louisiana from moving forward next week with it first nitrogen gas execution.  That order was swiftly appealed to the Fifth Circuit, and late yesterday a Fifth Circuit panel, by a 2-1 vote, vacated that injunction via this opinion.  Here is how the seven-page majority opinion begins:

Jessie Hoffman is scheduled to be executed by nitrogen hypoxia on March 18, 2025.  The district court has now entered a preliminary injunction preventing Louisiana state officials from carrying out his execution on the ground that death by nitrogen hypoxia violates the Eighth Amendment.

The preliminary injunction is not just wrong.  It gets the Constitution backwards, because it’s premised on the odd notion that the Eighth Amendment somehow requires Louisiana to use an admittedly more painful method of execution —namely, execution by firing squad rather than by nitrogen hypoxia.  That can’t be right.  Indeed, it contravenes Supreme Court precedent.  We accordingly vacate the preliminary injunction. 

Here is how the two-paragraph dissent by Judge Haynes begins:

I think the district court properly exercised its discretion in granting a preliminary injunction given the limited amount of time Hoffman had to challenge his execution by nitrogen hypoxia, which is new in Louisiana.  The district court fully explains all the efforts made: Hoffman tried throughout and did not wait until the last minute.  Instead, the state did not let him challenge earlier.  The timeline in which he could challenge it and the setting of his execution date, which is March 18, all happened within the last month.  As the district judge thoroughly discusses, there are issues that need more time to be resolved and decided.  Obviously, that cannot be done once he is dead.  While I am not suggesting a long time, I do think granting a preliminary injunction to allow some additional time to further review and address the method of execution (in addition to the other reasons given by the district court) is not an abuse of discretion by the district court.

I assume the defendant here will seek en banc review in the Fifth Circuit and that this matter will get to the Supreme Court thereafter.  I also assume that the execution is now much more likely to go forward on March 18.

Prior related post:

• Federal judge temporarily halts Louisiana's plans to conduct execution by nitrogen gas 

Notable accounting and accounts of Prez Biden's last mass commutations and their implementation

Law360 has this interesting new and lengthy article about how Prez Biden's mass clemency of drug offenses in his final few days of office have been playing out.  The piece is headlined "For Many Biden Clemency Grantees, Freedom Is On Hold," and it merits a full read.  Here are some excerpts:

When James Kirby Burks' family saw his name on a list of about 2,500 people to whom former President Joe Biden had granted clemency in his final days in office, they were overjoyed. Burks has been in federal prison for 32 years, serving a life sentence for a nonviolent drug offense in the '90s.  "We had been fighting for so long, and to finally see someone was listening and heard us, it was just tears pouring out of me, just being thankful," Burks' sister Robin Davis told Law360 in late February.

But the joy was short-lived.  Even though her brother's life sentence had been lifted, he wasn't home free, Davis said. Burks is one of the nearly 700 clemency recipients whom Biden specified couldn't be released until this July....

In granting nearly 2,500 commutations on Jan. 17, Biden set the record for most acts of clemency in a single day, and his office said at the time that the action was intended to address the racial and socioeconomic disparity in sentences between crack and powder cocaine offenses....

As of March 6, just 383 of Biden's clemency recipients had been released fully from prison, 325 had been moved to a halfway house or home confinement, and the other 1,783 inmates were still in prison, according to data Law360 collected from the BOP's inmate locator....

There are several reasons for the delay in the release of Biden's clemency recipients, experts told Law360, but at the root of it all is Biden's choice to do a staggered release structure. In one of four executive grants of clemency Biden issued in his last few days in office, thousands of names were sorted into different sections based on when their sentence is set to expire, with roughly 200 prisoners who could be released in February, and then the rest staggered among release dates in March, April, May and July, in which the largest chunk of 675 recipients are to be released.

New Los Angeles DA asks to withdraw prior DA's motion for resentencing in Menedez brothers' case

As reported in this ABC News piece, "Los Angeles County District Attorney Nathan Hochman said Monday he's asking the court to withdraw the previous district attorney's motion for resentencing for Lyle and Erik Menendez, calling the brothers' claims of self-defense part of a litany of 'lies'."  Here is more:

"We are prepared to go forward" with the hearing regarding their resentencing case, Hochman said at a news conference Monday. "However, we are asking the court to withdraw the previous district attorney's motion for resentencing, because we believe there are legitimate reasons and the interests of justice justifies that withdrawal."

The resentencing hearing is set for March 20 and 21.

The request to withdraw the resentencing motion is "based on the current state of the record and the Menendez brothers' current and continual failure to show full insight and accept full responsibility for their murders," Hochman said in a statement. "If they were to finally come forward and unequivocally and sincerely admit and completely accept responsibility for their lies of self-defense and the attempted suborning of perjury they engaged in, then the Court should weigh such new insight into the analysis of rehabilitation and resentencing -- as will the People."

Hochman said his decision comes after reviewing trial transcripts from both trials, prison records and videotaped trial testimony, as well as meeting with Menendez family members, defense attorneys and past prosecutors. Hochman stressed the premeditation, noting the brothers drove to San Diego days before the murders to buy guns with a fake ID and on the night of the murders, they planned an alibi and went to buy movie tickets, he said....

Hochman said the brothers told 20 lies and admitted to four; he said 16 lies remain "unacknowledged." Hochman stressed the brothers changed their story multiple times.... The "brothers have never come clean and admitted that they lied about their self-defense as well as suborned perjury and attempted to suborn perjury by their friends for the lies, among others, of their father violently raping Lyle's girlfriend, their mother poisoning the family, and their attempt to get a handgun the day before the murders," the DA said in a statement.

The court needs to "analyze whether the Menendez brothers' lack of full insight and lack of complete responsibility for their murders overcomes ... the other factors justifying a resentencing like the Menendez' length of time in prison, their age at the time of the murders, their upbringing and any sexual abuse they experienced, their extensive rehabilitation efforts in prison including getting educational degrees and involvement in community and prison programs, any supportive letters from prison officials and victim family members, their health, and the low prison risk score," Hochman said.

Lyle and Erik Menendez are serving life without the possibility of parole. In October, then-LA County District Attorney George Gascón announced he supported resentencing for the brothers. Gascón recommended their sentences of life without the possibility of parole be removed, and said they should instead be sentenced for murder, which would be a sentence of 50 years to life. Because both brothers were under 26 at the time of the crimes, they would be eligible for parole immediately with the new sentence....

Besides resentencing, the brothers have been pursuing two other paths to freedom. One is their habeas corpus petition, which they filed in 2023 for a review of two new pieces of evidence not presented at trial: a letter Erik Menendez wrote to his cousin eight months before the murders detailing his alleged abuse from his father, and allegations from a former boy band member who revealed in 2023 that he was raped by Jose Menendez.

The third path to freedom is through the brothers' request for clemency, which has been submitted to California Gov. Gavin Newsom. On Feb. 26, Newsom announced that he's ordering the parole board to conduct a 90-day "comprehensive risk assessment" investigation into whether the brothers pose "an unreasonable risk to the public" if they're granted clemency and released. "There's no guarantee of outcome here," Newsom said. "But this process simply provides more transparency ... as well as provides us more due diligence before I make any determination for clemency."

Prior related posts from Fall 2024:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so
• LA District Attorney announces that he will seek resentencing for the Menendez brothers
• Continuing coverage and comment on Menendez brothers' possible resentencing 
• California Gov to hold off on Menedez clemency decision pending resentencing review by new DA

Noting positive results from notable prosecutor-initiated resentencing program in California

Regular readers know I am a big fan of second-look sentencing mechanisms, which I have been writing about in various ways in various fora for many years.  Here are a couple of posts I authored last year at the Sentencing Matters Substack that provide some links and context regarding some of my thinking on the topic:

• Envisioning a second-look sentencing agenda for the US Sentencing Commission
• Should Second Look Efforts Focus Particularly on Drug Offense Sentences?

I provide this background in conjunction with highlighting this new press piece headlined "California’s Resentencing Program Shows Financial and Social Benefits, Study Finds."  The piece discusses a big new RAND report about a pilot resentencing program in California.  Here are excerpts:

Micah recalled the moment she got a second chance.  In 2023, more than two decades after prosecutors sent her to prison on a drug conviction that triggered the state’s three-strikes law, she received an envelope from the Contra Costa County District Attorney’s office.  She was baffled.

“There was like a little Post-it note in there — contact an attorney or your attorney,” said Micah, who was serving a 28-year-to-life sentence when she received the notice.  “I’m thinking, man, it’s been 24 years. I can’t think of anything that I could be charged with!”

Micah, who now works at a charitable thrift shop in Contra Costa County, is among a relatively small group of people who were released thanks to a state-funded program that encourages district attorneys to resentence incarcerated people serving long prison terms that many now consider excessive.

From 2021–23, the California County Resentencing Pilot Program provided nearly $13 million to counties to help encourage the reevaluation of long sentences.  Nine counties in the state participated, including Contra Costa, San Francisco and Santa Clara counties in the Bay Area....

Of the 50,000 people incarcerated in the participating counties, courts ultimately resentenced 227 people and released 174, according to a report published in February by RAND, the California-based nonprofit selected by the state Legislature to independently evaluate the pilot....

In 2018, California legislators passed AB 2942 in an effort to pursue major criminal justice reform. The law redefined the purpose of sentencing for public safety to include punishment, rehabilitation and restorative justice. The bipartisan law allowed district attorneys to recommend courts reconsider old cases, including those associated with violent crimes....

The state spends about $133,000 per incarcerated person annually in state prison, making resentencing cases a source of financial savings.  According to the RAND report, the state would have needed to reduce each of the 174 released individuals’ sentences by just 1.2 years to break even, considering the millions invested by the state and counties in the pilot program.  The results exceeded that number: About three-quarters of those considered for resentencing had served more than 10 years in prison, and the majority still had more than five years to go.

RAND’s report also recommends more clearly defined roles to improve cooperation between prosecutors and public defenders, better timelines and a dedicated court for resentencing hearings.

Not long after appointment of "pardon czar," Trump Administration fires Justice Department's Pardon Attorney

In a couple of recent posts (here and here) since Prez Trump's announcement that Alice Marie Johnson will serve as his "pardon czar"(see prior posts here and here), I have wondered aloud about how the work of the Justice Department's Pardon Attorney Liz Oyer might intersect with Johnson's work as the pardon czar.  But, as of late Friday as reported in this Reuters piece, Liz Oyer is no longer serving in this DOJ role:

President Donald Trump's administration on Friday fired at least two senior career officials at the U.S. Justice Department, including the head of the office that handles presidential pardon requests, according to a social media post and sources familiar with the matter.

Liz Oyer served as pardon attorney since 2022, a career Justice Department position. Oyer was fired "effective immediately," according to a memo she shared on LinkedIn, which cited Trump's executive authority under the U.S. Constitution.

Oyer's former office reviews requests for clemency from people convicted of federal offenses and makes recommendations to the White House on whom the president should pardon.

Bobak Talebian, the head of the Justice Department's Office of Information Policy, which handles public records requests under the U.S. Freedom of Information Act, was also fired, according to a source familiar with the matter.

The moves mark the latest instance of the Trump administration removing or sidelining career Justice Department officials, who typically keep their positions across presidential administrations.

As of this writing, Oyer is still listed at the Pardon Attorney on DOJ's website, which leads me to wonder if this position is now technically vacant or if someone from DOJ Pardon Office now serves as "acting" Pardon Attorney until an official replacement is named.  In the end, whatever may be the future leadership and functioning in DOJ's Pardon Office may not matter much, if at all, because Prez Trump has never seemed too concerned with clemency recommendations coming from DOJ. 

Moverover, as detailed in this new New Yotk Times piece, headlined "Trump Allies Seek Pardons From an Emboldened White House," clemency pitches and debate is focused with the White House seemingly without any concern for DOJ input.   I recommend the lengthy Times piece in full, and here are excerpts: 

The process used by the pardon attorney’s office to identify and recommend applicants for clemency is intended to favor those who accept responsibility for their crimes and are unlikely to reoffend.

Presidents are under no obligation to act on the office’s recommendations in extending second chances through pardons, which wipe out convictions, and through commutations, which reduce prison sentences.

According to people familiar with the matter, Mr. Trump’s White House had marginalized the pardon attorney’s office, shifting control of much of the clemency operation to the White House Counsel’s Office.

On Friday evening, Elizabeth G. Oyer, who had been the U.S. pardon attorney since being appointed in 2022 during the Biden administration, said on social media that she had been fired from the post by Todd Blanche, the newly confirmed deputy attorney general.

Even before her firing, a senior White House official said in an interview that “the White House Counsel’s Office is the one handling all clemency petitions.”

Among the White House officials involved are Sean Hayes, who worked for Representative Jim Jordan, Republican of Ohio, and Gary Lawkowski, who served as deputy general counsel for Mr. Trump’s 2024 campaign.  

Prior recent related posts:

• Prez Trump reportedly to name Alice Marie Johnson as his "pardon czar"
• Prez Trump formally announces Alice Marie Johnson will be his "pardon czar" 
• Wide praise, but uncertain plans, for Prez Trump's new pardon czar
• Still more (not quite constructive) criticisms of recent federal clemency developments

Adnan Syed, of "Serial" fame, gets relief from a sentence reduction under Maryland's Juvenile Restoration Act

I find second-look sentencing provisions so interesting and important because so much can happen after a lengthy sentence is imposed that can justify taking a second look at that sentence.  This reality was on full display in a second-look sentencing decision handed down today in a high profile case in Maryland, and here is part of the Washington Post's discussion of the ruling and its context:

Adnan Syed, the subject of the “Serial” podcast, will be allowed to remain free after a Baltimore judge on Thursday agreed to effectively reduce his sentence to the time he had already spent in prison.

The ruling from Baltimore City Circuit Court Judge Jennifer B. Schiffer is a crucial victory for Syed in his lengthy legal battle to try to undo his decades-old murder conviction, which drew national attention after the first season of the “Serial” podcast highlighted possible problems with the case.  In her 14-page decision, Schiffer wrote that she concluded Syed was “not a danger to the public and that the interests of justice will be better served by a reduced sentence.” 

Syed was arrested in February 1999, when he was just 17 years old, for the killing of Hae Min Lee, an 18-year-old he had once dated. He was convicted the following year and sentenced to life in prison and fought a lengthy battle for his release....

Syed’s bid to win his freedom had been largely unsuccessful until October 2022, when then-Baltimore City State’s Attorney Marilyn Mosby dropped the case, asserting Syed was wrongfully convicted. At the time, Mosby declared “the case is over.” Syed was freed from prison.

But the legal battle continued. Lee’s family appealed the matter, arguing their rights were violated in how the court conducted the critical hearing at which prosecutors asked for the case to be thrown out. In 2023, an appellate court panel sided with them, reinstating Syed’s conviction and ordering a do-over of that hearing. The ruling was upheld by the Maryland Supreme Court the following year.

The passage of time put a new leader in charge of the Baltimore City State’s Attorney’s Office: Ivan J. Bates, who late last month withdrew his office’s motion to throw out Syed’s conviction. In a filing, Bates’s office disagreed with Mosby’s assertions that “newly discovered evidence” undermined the jury finding Syed guilty of murder. But Bates indicated he would not seek to have Syed go back to prison, instead joining in his bid for a sentence reduction.

Schiffer resentenced Syed under the Juvenile Restoration Act (JRA), which allows people convicted as an adult for crimes they committed as a minor to seek new sentences. In her ruling, Schiffer noted Syed’s age at the time of the killing and that he had “maintained an outstanding institutional record” while incarcerated, completing 35 programs ranging from stress management to a legal assistance/paralegal certificate. Since his release, the judge noted, Syed had taken care of his parents and in-laws while maintaining a job at Georgetown University’s Prisons and Justice Initiative. But she also noted the pain the legal battle had taken on Lee’s family....

Under the JRA, judges are given 11 factors to consider in weighing whether to reduce a defendant’s sentence. In her opinion, Schiffer walked through them all, describing why they came out six in favor of reduction and five against.

Judge Schiffer's full 14-page opinion is available at this link.

Seeking Smack down, new cert petition assails "minimal indicia of reliability" standard at sentencing

In this post more than seven years ago, I flagged a decision by the Supreme Court of Delaware, Smack v. Delaware, No. 601 (Del. Oct. 11, 2017) (available here), in which the court rules that a sentencing judge complied with due process when relying on information meeting a "minimal indicium of reliability" standard to resolve a disputed sentencing factor.  Earlier this week, I was contacted by the defense attorney in that case, who is now bringing the defendant's 2254 action to the US Supreme Court.  I offered to here post the new Smack cert petition (which was filed last month and can be downloaded below), as well as the lawyer's brief overview of the issue and his request for assistance:

Petitioner Smack advances that the Due Process Clause of the 14th Amendment requires that disputed facts raised at a state court sentencing hearing, and considered by a sentencing judge when imposing a sentence, must be proven by a preponderance of the evidence standard; essentially, Smack asserts that disputed facts must be demonstrated to be true and accurate based on a probability, being probably true.  The Delaware state court sentencing judge held that "a minimal indicia of reliability" is the burden of proof to establish the disputed facts, allowing the judge to consider in addition to the six counts which Smack plead guilty to, all of the not-admitted, not-plead-to 74 counts of the indictment when issuing a sentence of 14 years of incarceration.  This finding was upheld by the Delaware Supreme Court, the District Court for the District of Delaware, and the Third Circuit Court of Appeals.

Smack consistently argued at all stages that a trilogy of three United States Supreme Court cases provide the support for his position that the United States Constitution, through its 14th amendment, requires state sentencing courts to use the preponderance of the evidence standard as the burden of proof to resolve disputed facts raised in a sentencing hearing.  Those three cases are McMillan v. Pennsylvania, 477 U.S. 79 (1986), Nichols v. United States, 511 U.S. 738 (1994) and United States v. Watts, 519 U.S. 148 (1997).  Smack advanced in the certiorari petition that the U.S. Supreme Court’s recent decision in Andrew v. White, 145 S. Ct. 75 (2025) is a roadmap that helps one determine if a United States Supreme Court opinion that “relies on a legal rule or principle to decide a case, [whether] that principle is a 'holding' of the Court for purposes of AEDPA" to enable a court to determine if a principal is clearly established federal law.  Smack noted that the instructive guidance in Andrew is extremely helpful in resolving the dilemma as Smack’s argument is a layered analysis that requires one to properly interpret the noted trilogy of cases to reach the conclusion that the preponderance of the evidence must be the burden of proof that a sentencing court must use to resolve disputed facts raised at a sentencing hearing and relied upon by the Court when determining a sentence.  A compelling part of the Supreme Court's reasoning in Andrew is that it recognizes that clearly established federal law satisfies the definition of clearly established “even though it arises out of a ‘thicket of . . . jurisprudence’ and lacks ‘precise contours’” and even if a specific case has not been previously relied upon to decide the question at hand as “general constitutional rule already identified in the decisional law may apply with the obvious clarity to the specific conduct in question."

Counsel for Smack --- attorney Christopher Koyste, a former assistant federal public defender who can be reached at ckoyste @ koyste.com --- is looking for an organization or Law School that has a U.S. Supreme Court Clinic to enter an appearance within the next three weeks before the case is distributed for conference at the Supreme Court.  Counsel does not mind letting the organization take the lead attorney position in the case so that the organization can perform the oral argument if case reaches that stage.

Download Smack Cert Petition 2-18-2025

Prior related post:

• Is due process satisfied by a "minimal indicia of reliability" standard for key sentencing evidence and determinations? 

Supreme Court grants cert on Double Jeopardy claim involving federal mandatory gun sentences

The US Supreme Court this morning in this new order list granted certiorari in one case, and it is a criminal/sentencing matter.  The petitioner via this cert petition in Barrett v. US, No. 24-5774, presented two questions to the Justices, but just grant of review was limited to just this first question:

Whether the Double Jeopardy Clause permits two sentences for an act that violates 18 U.S.C. § 924(c) and § 924(j), a question that divides seven circuits but about which the Solicitor General and Petitioner agree.

Notably, the cert petition was filed back in November 2024 before the change in administrations, so it is possible that new people in the Office of the Solicitor General may not longer agree with the petitioner about how this question should be answered.

Citing state guidelines and proportionality, Virginia Gov communtes prison term offficer involved in fatal shooting

As reported in this Washington Post piece, "Virginia Gov. Glenn Youngkin (R) has granted clemency to a former Fairfax County police sergeant who fatally shot an unarmed man thought to have stolen sunglasses. Wesley Shifflett was sentenced to three years in prison on Friday, but spent just two nights in jail before walking free just before 8 p.m. Sunday."  Here is more:

A jury convicted Shifflett in October of reckless handling of a firearm, but acquitted him of a more serious involuntary manslaughter charge in the 2023 encounter in which he chased and shot Timothy McCree Johnson, 37, outside Tysons Corner Center mall. Youngkin’s announcement means Shifflett will serve no further jail time, but his felony conviction stands — although [his lawyer[ said he plans to appeal....

During the trial, jurors repeatedly watched body camera footage showing the night Shifflett pursued Johnson, who was accused of stealing sunglasses, into a dark wooded area near the mall before shooting at him twice. Shifflett testified he saw Johnson reaching into his waistband. Lawyers for Shifflett argued he followed his training, while prosecutors painted Shifflett as a man who — in a moment of unreasonable panic — made a reckless decision with lethal consequences.

Gov Youngkin's statement on "Commutation of Sentence for Sergeant Wesley Shifflett" is available at this link, and here are excerpts:

I am convinced that the court's sentence of incarceration is unjust and violates the cornerstone of our justice system—that similarly situated individuals receive proportionate sentences. I want to emphasize that a jury acquitted Sgt. Shifflett of the more serious charge of involuntary manslaughter, a conviction for which the sentencing guidelines recommend no jail time or up to six months’ incarceration.

In this case, the court rejected the Senior Probation and Parole Officer’s recommendation of no incarceration nor supervised probation and instead imposed a sentence of five years’ incarceration with two suspended and an additional five years of probation. Sgt. Shifflett has no prior criminal record, and was, by all accounts, an exemplary police officer. It is in the interest of justice that he be released immediately.

Alabama Gov commutes death sentence to LWOP based on "enough questions" about defendant's guilt

As reported in this AP piece, "Alabama Gov. Kay Ivey commuted the death sentence of Robin 'Rocky' Myers to life in prison Friday, saying there were enough questions about his guilt that she could not move forward with his execution." Here is more about a notable state clemency decision:

Ivey said Myers, 63, will spend the rest of his life in prison without the possibility of parole instead of being executed later this year. Ivey noted that was the sentence jurors recommended at his 1994 trial. The Republican governor said she is a staunch supporter of the death penalty but “I have enough questions about Mr. Myers’ guilt that I cannot move forward with executing him.”

“In short, I am not convinced that Mr. Myers is innocent, but I am not so convinced of his guilt as to approve of his execution. I therefore must respect both the jury’s decision to convict him and its recommendation that he be sentenced to life without parole,” Ivey said in a statement.

Myers was convicted of capital murder in the 1991 stabbing of Ludie Mae Tucker, 69, at her Decatur home. Myers, who lived across the street from Tucker, has long maintained he is innocent, and a juror at his 1994 trial supported the push for clemency.

The reprieve came over the objections of Republican Attorney General Steve Marshall, who said he was “astonished” by the decision. Last week the Alabama Supreme Court granted the state attorney general’s request to authorize an execution date for Myers using nitrogen gas. The next step was for Ivey to set that date.

It was the first execution Ivey has stopped since she first took office in 2017. Ivey, who has presided over more than 20 executions, called it “one of the most difficult decisions I’ve had to make as governor.” “But I pray that the Tucker family may, in some way, find closure and peace knowing this case is closed, and Mr. Myers will spend the rest of his life in prison,” Ivey said.

There were multiple questions surrounding Myers’ case, his attorney had argued. No physical evidence at the scene connected him to the crime. Tucker identified her assailant as a short, stocky Black man but did not name Myers or a neighbor as the attacker even though they had met several times, according to Myers’ son. Jurors voted 9-3 that he serve life in prison. However, the judge sentenced Myers to death under Alabama’s now-abolished system that let judges decide death sentences.

Ivey said there was “circumstantial evidence” against Myers, but it is “riddled with conflicting evidence from seemingly everyone involved.” Much of the state’s case involved a VCR taken from Tucker’s home and whether Myers was the person who brought it to a drug house to sell, according to court records....

The last time an Alabama governor commuted a death sentence was in 1999.

Marshall sent the governor a letter Thursday disputing the innocence claim and urging her to let the execution go forward. “I am astonished by Governor Ivey’s decision to commute the death sentence of Rocky Myers and am bewildered that she chose not to directly communicate with me about this case or her decision,” Marshall said Friday in a statement. He added that his staff “will go home tonight deeply saddened, not for themselves, but for the family of Ludie Mae Tucker.”

Wide praise, but uncertain plans, for Prez Trump's new pardon czar

The Washington Post has this new piece spotlighting praise for Prez Trump's recent announcement that Alice Marie Johnson will serve as his "pardon czar"(see prior posts here and here).  Here are excerpts:

As a president known for governing on whims and holding mercurial — often hypocritical — beliefs, few of President Donald Trump’s policies are as loaded with contradictions as criminal justice. Trump, whose “tough on crime” stances include aggressive use of the death penalty and expanding “stop and frisk” tactics also in his first term signed the bipartisan First Step Act, which eased sentences.

But Trump’s often unpredictable policy moves most recently drew plaudits from advocates for prisoners and criminal defendants who warmly received the president’s announcement last week that he would tap someone from their orbit, Alice Marie Johnson, as his “pardon czar.”...

Civil rights and harm reduction advocates said Johnson is a welcome choice given her experience doing on-the-ground advocacy as someone who spent nearly 22 years in prison on a first-time offense. “We definitely see this as an exciting opportunity to see someone with lived experience shaping criminal-justice-reform policy,” said Daniel Landsman, the vice president of policy for Families Against Mandatory Minimums.

Landsman said that years ago someone with Johnson’s background would have been an unlikely choice for such a role. He also said Trump’s elevation of someone who has experienced the prison system is “a very good sign” that there is potential for more criminal justice reform during this administration. At the same time, Landsman said the administration’s full position on that issue is “still taking shape.”

Lisa Monet Wayne, the executive director of the National Association of Criminal Defense Lawyers, similarly lauded Johnson’s selection, noting the group recognized Johnson in 2020 with its Champion of Justice Community Advocacy Award.

“This appointment holds exciting possibilities for a more equitable clemency process, driven by Ms. Johnson’s firsthand experience and deep understanding of the system’s flaws,” Wayne wrote in a message. “However, it’s important to acknowledge the limitations of this role. While she can undoubtedly influence and advocate, the ultimate power to grant clemency remains with the president.”

It remains unclear exactly what powers Johnson will have in the role of “czar” and whether she will work in conjunction with the Office of the Pardon Attorney — or without it, as Trump largely did in his first term.

Notably, in this recent LinkedIn post, DOJ's Pardon Attorney Liz Oyer praised Johnson's appointment and stated she "could not be more excited to collaborate with the Pardon Czar to deliver on the true promise of second chances through clemency." Oyer, who served as a federal public defender for a decade before becoming the Pardon Attorney, seemed to bring great energy to DOJ's Pardon Office. And Alice Marie Johnson always seems full of incredible energy (and this great interview today on Fox Business is just one example).

Still, as of now, it is unclear how clemency energy from the Pardon Attorney and the pardon czar will be operationalized into making clemency recommendations to Prez Trump, and it is even less clear how Prez Trump will respond to clemency recommendations.  Accoring to this DOJ webpage, there are currently nearly 6,000 clemency application pending, and Johnson's appointment seems sure to inspire many more applications.  Six weeks into office, Prez Trump arleady has a remarkable clemency record; it will be fascinating to watch how it may continue to unfold.

Prior recent related posts:

• Prez Trump reportedly to name Alice Marie Johnson as his "pardon czar"
• Prez Trump formally announces Alice Marie Johnson will be his "pardon czar" 

Interesting report on interesting hearing over scope of Jan 6 pardons

This new Politico piece provides an effective review of a court hearing earlier today concernng the reach and scope of Prez Trump's Jan 6 pardons.  I recommend the full piece, and here are excerpts (with links from the original): 

Three weeks ago, the Justice Department was emphatic: Donald Trump may have pardoned Kentuckian Dan Wilson for crimes he committed at the Capitol on Jan. 6, but that pardon did not extend to his unrelated conviction for illegally storing firearms at his home.

Then, on Tuesday, the U.S. attorney’s office in Washington reversed course, saying it had “received further clarity” about Trump’s true intent, which included pardoning Wilson for the gun case. Prosecutors did not explain how they arrived at this new “clarity.”...

During a two-hour hearing in her federal courtroom, U.S. District Judge Dabney Friedrich — a Trump appointee — grilled a Justice Department attorney about the matter and appeared to leave with more questions than answers. And Wilson’s freedom is in the balance: He’s slated to report to prison unless Friedrich agrees to stop the sentence....

Assistant U.S. Attorney Jennifer Blackwell said the department’s understanding of Trump’s pardon had evolved in recent weeks — but she did not say how or why. She said this shift was the reason the Justice Department had moved in recent days to drop a slew of other cases against Jan. 6 defendants who were on the hook for other federal felonies....

The judge grew increasingly exasperated as she asked the Justice Department to explain “the president’s intent” when he issued the pardon.  But Blackwell and Wilson’s attorney, George Pallas, told the judge she had virtually no role in interpreting the pardon at all.  The Justice Department, acting on Trump’s behalf, would simply tell her what it means.

But Friedrich said she viewed it as her job to accept only a “reasonable” interpretation of Trump’s pardon, and given the justice Department’s shifting explanations, she had not yet decided whether to grant Wilson a reprieve from his five-year prison sentence.  

Prior related posts:

• Justice Department now asserting in some cases that Prez Trump's Jan 6 pardons covers gun and drug crimes 
• More press coverage of more Justice Department filings arguing Jan 6 pardons cover other crimes 

"Politics in Policy: An Experimental Examination of Public Views Regarding Sentence Reductions via Second Chance Mechanisms"

The title of this post is the title of this new paper authored by Isabella Polito and Colleen Berryessa now available via SSRN.  Here is its abstract:

Objective(s): This research examines how the cost of incarceration to the state and type of offense affects public support for different levels of sentence reductions (10%, 25%, 50%) via policies that reduce incarcerated populations called “second chance” mechanisms, as well as whether political ideology or affiliation predicts such support.

Hypotheses: (1) Across different levels of sentence reductions, participants were expected to show significantly decreased support for the use of second chance mechanisms for violent compared to nonviolent crimes, (2) but also show significantly increased support when exposed to cost information to the state, compared to not receiving that information. (3) Political ideology and affiliation were expected to moderate support across different levels of sentence reductions.

Method: A 6 (offense type) x 2 (cost of incarceration to the state) experiment with a national sample of the U.S. public (N = 419) was used to assess support for using second chance mechanisms to achieve different levels of sentence reductions.  Moderation analyses assessed how participants’ political ideology and affiliation impacted support.

Results: Participants did not show significantly less support for the use of second chance mechanisms to achieve sentence reductions for violent, compared to non-violent, crimes.  Providing cost information did not significantly impact support for any level of sentence reduction.  Across sentence reductions, political ideology significantly moderated support for the use of second chance mechanisms, where being more conservative predicted decreased support for a 10% sentence reduction when cost information was also provided.

Conclusions: Crime type and political ideology, but not fiscal costs, appear in some way to bear on public support for sentence reductions via second chance mechanisms.  Overall, evidence suggests that public support for the use of second chance mechanisms presents an opportunity to advance reforms that reduce incarcerated populations and enhance the public's perceptions of the justice system’s legitimacy.

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.

SCOTUS rules in favor of condmened Oklahoma defendant Richard Glossip based on prosecutorial misconduct

Appeals by Oklahoma death row defendant Richard Glossip has now produced two notable opinions from the US Supreme Court.  A decade ago as reported here, in a 5-4 ruling in favor of the state in Glossip v. Gross, 576 U.S. 863 (2015), the Supreme Court rejected Glossips's claims that using midazolam in lethal injection protocols violated the Eighth Amendment.  Today, in Glossip v. Oklahoma, No. 22-7466 (S. Ct. Feb. 25, 2025) (available here), in a 5-3 ruling in favor of Richard Glossip (or maybe a 6-2 ruling or a 5-1-2 ruling), the Supreme Court reversed Glossip's conviction and remanded for a new trial based on its conclusion that prosecutors violated its constitutional obligation to correct false testimony.  Here is the composition of the Court's votes and opinions:

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KAGAN, KAVANAUGH, and JACKSON, JJ., joined, and in which BARRETT, J., joined as to Part II.  BARRETT, J., filed an opinion concurring in part and dissenting in part. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined, and in which BARRETT, J., joined as to Parts IVA–1, IV–A–2, and IV–A–3.  GORSUCH, J., took no part in the consideration or decision of the case.

Here is how Justice Sotomayor's opinion for the Court gets started:

An Oklahoma jury convicted petitioner Richard Glossip of paying Justin Sneed to murder Barry Van Treese and sentenced him to death. At trial, Sneed admitted he beat Van Treese to death, but testified that Glossip had offered him thousands of dollars to do so. Glossip confessed he helped Sneed conceal his crime after the fact, but he denied any involvement in the murder.

Nearly two decades later, the State disclosed eight boxes of previously withheld documents from Glossip’s trial. These documents show that Sneed suffered from bipolar disorder, which, combined with his known drug use, could have caused impulsive outbursts of violence. They also established, the State agrees, that a jail psychiatrist prescribed Sneed lithium to treat that condition, and that the prosecution allowed Sneed falsely to testify at trial that he had never seen a psychiatrist. Faced with that evidence, Oklahoma’s attorney general confessed error. Before the Oklahoma Court of Criminal Appeals (OCCA), the State conceded that the prosecution’s failure to correct Sneed’s testimony violated Napue v. Illinois, 360 U.S. 264 (1959), which held that prosecutors have a constitutional obligation to correct false testimony. The attorney general accordingly asked the court to grant Glossip a new trial.  The OCCA declined to grant relief because, it held, the State’s concession was not “based in law or fact.” 2023 OK CR 5, ¶25, 529 P.3d 218, 226.  Because the prosecution violated its obligations under Napue, we reverse the judgment below and remand the case for a new trial.

Here is the start of Justice Barrett's separate opinion, which makes it me disincline to consider her vote entirely in favor of Glossip:

While I agree with much of the Court’s analysis, I would not order the Oklahoma Court of Criminal Appeals (OCCA) to set aside Richard Glossip’s conviction.  The OCCA did not make factual findings on the most important questions, and the record is open to multiple plausible interpretations. Consistent with our ordinary practice, the Court should have corrected the OCCA’s misstatement of Napue v. Illinois and remanded this case for further proceedings. 360 U.S. 264 (1959).  Instead, the Court has drawn its own conclusions about what the record shows, thereby exceeding its role.

Here is the start of Justice Thomas's dissenting opinion:

Richard Glossip — a convicted murderer twice sentenced to death by Oklahoma juries — challenges the denial of his fifth application for state post-conviction relief.  Although Glossip won the support of Oklahoma’s new attorney general, he failed to persuade either body with authority to grant him relief: The Oklahoma Court of Criminal Appeals (OCCA) denied Glossip’s application as both procedurally deficient and nonmeritorious, and Oklahoma’s Pardon and Parole Board denied clemency.  Because this Court lacks the power to override these denials, that should have marked the end of the road for Glossip.  Instead, the Court stretches the law at every turn to rule in his favor.  At the threshold, it concocts federal jurisdiction by misreading the decision below.  On the merits, it finds a due process violation based on patently immaterial testimony about a witness’s medical condition.  And, for the remedy, it orders a new trial in violation of black-letter law on this Court’s power to review state-court judgments.  I respectfully dissent.

Very interesting and another reminder of how "death is different" in so many ways.

Of prisons and pardons, updates on stories to watch amid federal transition

I have blogged recently about on-going challenges and recent transitions at the federal Bureau of Prisons (post here) and also about Prez Trump appointing Alice Marie Johnson (posts here and here).  Here is some newer press coverage on these two posts:

From the Washington Post, "At Federal Bureau of Prisons, senior retirements add to uncertainty."  An excerpt:

At least six top officials at the Federal Bureau of Prisons have announced plans to retire amid questions within the agency about its direction unTrump's newly-appointed pardon czar outlines priorities in role: 'I'm ready'der President Donald Trump, according to the union representing BOP employees and internal communications reviewed by The Washington Post.

The departures could gut veteran leadership at an agency that oversees the nation’s 155,000 federal inmates as it tries to implement Trump’s cuts and directives and faces what the Justice Department inspector general has called an “ongoing crisis” involving staff shortages, crumbling facilities, sexual assault and contraband in prisons.

From Fox News, "Trump's newly-appointed pardon czar outlines priorities in role: 'I'm ready'.'"  From the video transcript:

“I plan to fulfill the trust the President has placed in me.  He has given me specific marching orders and actually.... I've been working on this non-stop since my release this is a continuation of the work I've already been doing.

“I brought many pardon cases before the President in the past.   One thing i can say about President Trump, he was very interested in their families, he wanted to know if they have a solid reentry program in place.  I wanted to make sure that I brought him the best candidates because what is happening in this nation is really, really sending a message to the world that we care about the least of his people….

“I have to make sure that the communities are ready to receive them.  My number one thing in recommendations is safety in the communities.   I want to make sure they have jobs, that they are ready to go home to.  The ability not only for a second chance but for their best chance of success.

“And then it takes follow-up.  I don't want to help people come home and then at the same time they are set up for failure.  We'll be making sure we check in with them not in concert with probation, not to catch them doing something wrong, but to make sure that they have things that will help them make right decisions, that includes making sure they have mental health.  Sometimes when you've been in prison for long years, you need to reintegrate.  It affects your mentally.  I want to make sure those people that are coming home have good family support and if they don't have family, they have good faith support.”

Latest SCOTUS order list full of intrigue while engaging Second, Fourth and Sixth Amendment (originalist?) jurisprudence

The US Supreme Court is back in action with oral arguments this week after nearly a month off, and today's action starts with this lengthy new order list.  Running 58 pages, there are many interesting elements to this order list that should intrigue criminal justice fans, and I will highlight here items first catching my eye related to the Second, Fourth and Sixth Amendment: 

Second Amendment:  On the very first page of today's order list, the Supreme Court addresses two Eleventh Circuit criminal cases (Whitaker and Rambo) that involved constitutional challenges to the federal prohibition of gun possession by felons in this way:  "The judgments are vacated, and the cases are remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of United States v. Rahimi, 602 U.S. 680 (2024)."  This would not be a big deal, except both Whitaker and Rambo were resolved by the Eleventh Circuit after the Supreme Court's Rahimi ruling; the Eleventh Circuit in these cases asserted that Rahimi did not undermine its precedents categorically rejecting a Second Amendment challenge to the federal felon-in-possesion charge.  As I read it, these GVRs are essentially statements from SCOTUS that Rahimi in fact does undermine -- or at least should or may be read as undermining -- any and all pre-Rehimi precedents that categorically foreclose a Second Amednment challenge to broad felon-in-possession laws. 

Fourth Amendment:  Over the last nine pages of today's order list, Justice Sotomayer has an extended statement regarding the denial of cert, joined by Justice Gorsuch, that reinforces my inkling that an originalist approach to criminal procedure rights may often provide more protections to individuals than some existing precedent (see prior posts here and here and here on the topic).  In Gonzales v. US, another case from the Eleventh Circuit, Justice Sotomayor starts her statement this way: 

Founding-era common law gave officers no authority to make an “arrest without a warrant, for a mere misdemeanor not committed in [their] presence.” Bad Elk v. United States, 177 U.S. 529, 534–535 (1900) (collecting sources).  This petition asks the Court to decide whether the Fourth Amendment incorporates that “in-the-presence” limitation on warrantless misdemeanor arrests.  There is reason to think it might.  After all, the in-the-presence requirement existed in some form at the founding. Ibid.  This Court has often held, moreover, that the Fourth Amendment “‘must provide at a minimum the degree of protection’” the common law afforded at the time of its adoption. Lange v. California, 594 U.S. 295, 309 (2021) (quoting United States v. Jones, 565 U.S. 400, 411 (2012)).

Important questions about the in-the-presence rule and its scope remain, and in this case they impede the Court’s review of the question presented. In an appropriate case, however, the Court should grant review to consider whether and to what extent the Fourth Amendment incorporates the in-the-presence rule.

Sixth Amendment: In the middle of today's order list, Justice Gorsuch has a short dissent from the denial of cert in a group of federal forfeiture cases.  The dissent runs only three paragraphs, so I will provide it in full here:

The Fifth Circuit held that a judge may order restitution in a criminal case based on his own factual findings, without the aid of a jury.  95 F.4th 328, 389 (2024).  About that, I have my doubts.  See Hester v. United States, 586 U.S. 1104, 1106–1107 (2019) (GORSUCH, J., dissenting from denial of certiorari).

Consistent with the Sixth Amendment’s promise of a trial by jury, this Court has held that “[o]nly a jury may find ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’” Erlinger v. United States, 602 U.S. 821, 833 (2024) (quoting Apprendi v. New Jersey, 530 U. S. 466, 490 (2000)). That means a jury must find both those facts that increase a criminal defendant’s exposure to imprisonment and any facts that increase his exposure to monetary fines.  See Southern Union Co. v. United States, 567 U.S. 343 (2012).  If all that is true, it is difficult to see how a judge’s factual findings might suffice to increase a criminal defendant’s exposure to a restitution award.  As this Court has recognized, “the scope of the constitutional jury right must be informed by the historical role of the jury at common law.” Id., at 353 (internal quotation marks omitted).  And more than a little evidence suggests that, at the time of the founding, juries found the facts needed to justify criminal restitution awards. See Hester, 586 U.S., at 1107 (opinion of GORSUCH, J.); see also Apprendi, 530 U.S., at 502 (THOMAS, J., concurring); Pet. for Cert. 10–12.

I would have granted review in this case to resolve whether the Fifth Circuit’s decision comports with this Court’s precedents and the Constitution’s original meaning. In the absence of this Court’s review, I can only hope that federal and state courts will continue to consider carefully the Sixth Amendment’s application to criminal restitution orders. Cf. State v. Davison, 973 N. W. 2d 276, 279 (Iowa 2022) (“restitution must be based on jury findings”).  The right to trial by jury should mean no less today than it did at the Nation’s founding.  See Hester, 586 U. S., at 1107 (opinion of GORSUCH, J.).

I suppose I could summarize all this interesting order-list action by observing that the current Supreme Court seems eager to keep revisiting settled jurisprudence regarding gun prohibitions based on its originalist vision on the Second Amendment, but only one or two Justices seem concerned with Fourth and Sixth Amendment jurisprudence that appear to contradict the original public meaning of the Constitution.  Hmmm.

Justice Department now asserting in some cases that Prez Trump's Jan 6 pardons covers gun and drug crimes

As reported in this new NPR article, headlined "Justice Department broadens Jan 6 pardons to cover gun, drug-related charges," the Justice Department is now concurring with some defendants claims that Prez Trump's Jan 6 pardons covers more than Jan 6 activity.  Here are some details with a focus on one case (and links from the original):

The Department of Justice has widened the scope of President Trump's pardons for Jan. 6 riot defendants to include separate but related gun charges. The charges stemmed from FBI searches executed during the sprawling investigation into the Jan. 6, 2021 attack, which allegedly turned up evidence of other crimes not directly connected to the Capitol breach.

In legal filings this week, federal prosecutors asked judges to dismiss cases against two former Jan. 6 defendants, who had both faced federal gun charges.

This week's legal filings represent a more expansive understanding of Trump's Jan. 6 pardons than was initially clear. Trump's order, which he issued on his first day in office, gave clemency for "offenses related to events that occurred at or near the United States Capitol" on Jan. 6.

Immediately after Trump's pardons — which included defendants who violently assaulted police officers and those with long criminal records — the Department of Justice appeared to stand by the separate gun charges. That was then.

In the case against Elias Costianes of Maryland, federal prosecutors alleged he joined the mob that breached the U.S. Capitol on Jan. 6, and took videos of himself inside of the building. Costianes pleaded not guilty to the Jan. 6 charges, and his case was still pending when Trump took office and ordered the dismissal of all ongoing Capitol riot cases. But that was not Costianes' only legal problem. When FBI agents first arrested Costianes and searched his residence on Feb. 12, 2021, they found four guns, along with evidence that Costianes used and sold cocaine and testosterone.

Costianes pleaded guilty to a charge of possession of a firearm or ammunition by an unlawful user of a controlled substance. He was sentenced to a year in prison, which he began serving earlier this month.

This week, the Department of Justice said in a court filing that it had concluded that Trump's pardon order extended to Costianes' drug and gun case, because it was sufficiently related to his Jan. 6 charges.  "He should be immediately released from custody in connection with this case because the President has pardoned him of the offenses in the indictment," the government's lawyers wrote....

In the legal filing in Costianes' case, Department of Justice lawyers said, "Whether the pardon applies is a fact-intensive and case-specific inquiry."

Meanwhile, on a somewhat related front, here are links to a couple of recent news pieces about some of the beneficiaries of Jan 6 pardons that caught my eye:

From The Hill, "Pardoned Jan. 6 defendants get hero’s welcome, star status at CPAC"

From the New York Times, "Pardoned for Jan. 6, She Came Home to a New Reality"

From NPR, "Pardoned Jan. 6 rioter from Washington state has a new passion — reforming the justice system"

Prez Trump formally announces Alice Marie Johnson will be his "pardon czar"

As reported in this Reuters piece, "Donald Trump on Thursday said he had made Alice Johnson, a Tennessee woman who was serving a life sentence for a drug crime before Trump commuted her sentence, a 'pardon czar' to advise him on further acts of clemency." Here is more:

Trump made the announcement at a Black History Month reception at the White House, roughly four weeks after he returned to office and began implementing sweeping rollbacks of diversity, equity, and inclusion (DEI) initiatives across the federal government.

Trump, who commuted Johnson's life sentence in 2018 and granted her a full pardon in 2020, asked her to advise him on other cases where pardons were warranted.

"Alice was in prison for doing something that today probably wouldn't even be prosecuted," Trump told the crowd of mostly African American supporters, including golfer Tiger Woods, who joined the president on stage.

"You've been an inspiration to people, and we're going to be listening to your recommendation on pardons," he said to Johnson. "You're going to find people just like you."

As set out in this post from October 2018, Alice Marie Johnson authored a Fox News column not long after she was released from from prison that urged Prez Trump to consider many more federal prisoners for clemency.  Here is a small portion of that lengthy piece:

Many other nonviolent offenders in federal prisons today are — like me — no danger to society, and I look forward to having President Trump and members of his administration examine their cases.  Many of these men and women have spent long years in prison and deserve to receive clemency or a commutation of their sentences from the president.

Freeing these offenders early would be an act of justice and mercy, as granting me my freedom was.  And early release would save taxpayers the cost of feeding and housing these people for years after they have paid their debt to society....

The president has a power that the Constitution grants to him alone to both show mercy and deliver justice for people who were given excessively long sentences for crimes involving no violence.  The people who deserve to be freed are those who have long since recognized their mistakes and who have rehabilitated themselves during their time in prison.

I will never forget what President Trump did for me. He changed my life and gave me the opportunity to fulfill my potential, and now he has the chance to do the same for thousands more.

As this piece highlights, Alice Marie Johnson has been advocating for criminal justice reform and clemency since she was released after 22 years in federal prison, and I expect she will make lots of clemency recommendations to Prez Trump.  Prez Trump seems to quite enjoy his unlimited power to grant clemencies, so we might reasonably expect that he will act on many of Alice Marie Johnson's recommendations.

Prez Trump reportedly to name Alice Marie Johnson as his "pardon czar"

This new New York Times article, headlined "Trump May Name a Woman He Once Pardoned to Be His ‘Pardon Czar,’" reports on a notable potential development in the federal clemency arena.  Here is how the article begins and ends:

President Trump’s advisers are considering Alice Marie Johnson, who was serving a life sentence for a drug conviction when the president commuted her sentence during his first term, to be the “pardon czar,” according to three people familiar with the discussions.

It was not immediately clear what the role would entail, but Ms. Johnson, at the end of Mr. Trump’s first term, said she wanted to work on behalf of people she believed should be considered for clemency.

Ms. Johnson’s appointment has not been finalized, and like many things in Mr. Trump’s world, plans could change. When reached by phone, Ms. Johnson declined to comment. A White House spokesman did not respond to a request for comment.

Ms. Johnson, whose case was originally brought to Mr. Trump’s attention by Kim Kardashian, has become a vocal supporter of the president. Some of Mr. Trump’s advisers see her as being politically helpful to him over the years; during the 2020 presidential race, the Trump campaign featured her in a Super Bowl ad in an effort to reach Black voters....

In a November 2024 television interview, Ms. Johnson said that after her release she personally submitted over 100 petitions to the White House after Mr. Trump asked her to compile a list of people she believed deserved clemency. “I’m so blessed to be free myself,” she said. “The work continues. I can’t help but advocate for people who are incarcerated, because I’m really one of them. I’m just a free one of them.”

"State Constitutional Prohibitions against Unnecessary Rigor in Arrest and Confinement"

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

Clauses in five state constitutions prohibit treating people who are arrested or confined with “unnecessary rigor.” Decades ago, scholars concluded that history could teach us very little about these clauses.  Now with the power of digitized records and text-recognition technology, this Article reveals that “unnecessary rigor” was a recognized phrase with deep historical roots.  Courts, meanwhile, have been silent about the unnecessary rigor clauses in two states, and have offered divergent interpretations about the clauses in other states.  Jurisprudence has been limited by the missing historical record and the fact that “unnecessary rigor” does not appear in our modern vernacular, making a plain textual reading challenging.  The trove of historic sources presented in the Article suggest that state courts have interpreted the unnecessary rigor clauses too narrowly.

The Article argues that the animating principle of the unnecessary rigor clause is to protect human dignity against overzealous use of power in state custody, the context in which state power over the individual is at its apex.  To check overzealous state power in this special context, the clause requires all rigor — all rigidity and harshness — to be justified by necessity.  Excessive mandatory sentences, prolonged solitary confinement, failure to provide needed medical treatment, and unduly restrictive visitation policies are just a few examples of practices that can violate this animating principle.

"A More Luminous Beacon"

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

Over the Supreme Court's past four Terms, federal postconviction habeas corpus has been placed on the chopping-block.  Its fate hangs in the balance of an historical debate over the maxim, oft recited by the Court between 1830-1953, that postconviction habeas reaches only "jurisdictional defects" — as opposed to "mere error"on the part of the convicting court.  Justices Gorsuch and Thomas maintain that "jurisdiction" carried then the same narrow meaning it does now: power ab initio over the offense charged and the defendant's person.  Justices Kagan and Jackson contend that in this context, "jurisdictional defect" was understood broadly enough to encompass any error of federal constitutional (or perhaps even statutory) law.  Functionally, Gorsuch and Thomas are arguing to altogether abolish federal postconviction review of even the most serious alleged constitutional violations, while Kagan and Jackson are arguing to perpetuate a status quo that a broad, cross-ideological scholarly consensus recognizes as deeply broken.

Fortunately, the historical record makes abundantly clear that neither the Gorsuch-Thomas position nor the Kagan-Jackson position can be right.  In many pre-1953 cases, the Court did deem alleged constitutional violations to be "jurisdictional," but in just as many other such cases, it refused to make that move.  Not as fortunately, the Court has struggled for 195 years to articulate a clear answer to the question of which constitutional violations implicate "jurisdiction" for habeas purposes, and which do not.  Likewise, of the countless and brilliant scholars who have scoured the historical caselaw for such an answer, none has found one.  As Paul Bator famously put it in 1963, "[o]nce the concept of 'jurisdiction' is taken beyond the question of the [convicting] court's competence to deal with the class of offenses charged and the person of the prisoner, it becomes a less than luminous beacon."

This Article seeks, in the historical concept of "jurisdiction," what had eluded Bator and so many others: a more luminous beacon.  What's different this time, however, is our understanding of the writ's hard-wired conceptual DNA.  As I have recently argued, American habeas principally operates not on a logic of individual physical liberty (as long conventionally assumed), but on one of regulating the principal-agent relationship between We the People and the governmental officials who wield our delegated penal power.  When we approach the historical caselaw from this novel conceptual premise, it finally does yield a luminous beacon for modern habeas jurisprudence to follow: state actors' willful disobedience or systemic disregard of the People's constitutional commands are indeed "jurisdictional defects" cognizable on postconviction habeas review; their good-faith mistakes on federal constitutional questions, however, are not.

Prez Trump pardons former Illinois Gov after prior commutation ... are more clemencies in the works?

As reported in this AP piece, "President Donald Trump on Monday pardoned former Illinois Gov. Rod Blagojevich, whose 14-year sentence for political corruption charges he commuted during his first term."  Here is more:

The Republican president called the Democratic former governor, who once appeared on Trump’s reality TV show “Celebrity Apprentice,” “a very fine person” and said the conviction and prison sentence “shouldn’t have happened.”

“I’ve watched him. He was set up by a lot of bad people, some of the same people I had to deal with,” Trump said at the White House as he signed the pardon.

Blagojevich was convicted in 2011 on charges that included seeking to sell an appointment to then-President Barack Obama’s old Senate seat and trying to shake down a children’s hospital. Blagojevich served eight years in prison before Trump cut short his term in 2020....

At the time that Trump announced Blagojevich’s commutation in 2020, Trump had been investigated for his ties to Russia and their attempts to interfere in the 2016 election. The president made clear that he saw similarities between efforts to investigate his own conduct and those that took down Blagojevich.

I have been wondering ever since Prez Trump's flurry of clemency action his first week back in the oval office (see posts here and here and here and here) if he was going to put away his clemency pen for months or even years to come.  Notably, it has been roughly a half-century since any president has granted a significant number of clemencies during his first few months in office.  But this Blagojevich pardon suggests Prez Trump may be inclined to make clemency a regular (if not quite regularized) part of his second term.

Of course, there is no shortage of federal criminal defendants hoping that Prez Trump will keep his clemency pen active.  Here are just some of the press pieces I have noticed in recent weeks about various folks eager to encourage Prez Trump to see more folks as worthy of his clemency attention:

From The Daily Beast, "Sam Bankman-Fried’s Parents Seeking Trump Crypto Pardon for Son"

From The Economic Times, "Joe Exotic begs Donald Trump for pardon, says Justice department ‘weaponised against me’"

From The Hill, "Democrats accused of corruption look to Trump for clemency"

From the New York Post, "Disgraced ‘Chrisley Knows Best’ fraudster couple to seek Trump pardon" 

Top New York state judge advocates for statute authorizing second-look sentencing

As reported in this New York Times piece, the "chief judge of New York State’s highest court urged the State Legislature on Monday to pass a bill that would allow prisoners who have been locked up for years to apply for reduced sentences."  Here is more:

The judge, Rowan Wilson, who oversees the state’s entire court system, said in his annual address at the Court of Appeals in Albany that the proposed legislation, known as the Second Look Act, would give people who committed crimes years ago an opportunity to show they no longer pose a danger and could be a benefit to society.

“Put simply, our criminal justice system isn’t working. Maybe it hasn’t really ever worked,” Judge Wilson said. “Prolonged incarceration is very expensive, and it does not make us safer.”...

The second-look bill would allow people serving prison terms of 10 years or longer to apply to judges and ask them to re-evaluate their sentences.  The aim is to “address the harms caused by New York’s history of imposing overly harsh sentences, including those required by mandatory minimums,” according to its language....

In his speech, Judge Wilson highlighted what he said were signs that the “traditional” model of the legal system was not working.  He pointed out that the United States is home to 5 percent of the world’s population, but 20 percent of its incarcerated people; that the felony conviction rate is significantly higher for New Yorkers of color than their white peers; and that the age of incarcerated New Yorkers is rising because of longer prison sentences.

“Over-incarceration has everything to do with the courts,” he said. “No prosecutor, jury, legislator or executive branch official imposed a prison sentence. Everyone sentenced to a New York prison was sentenced by a judge of the Unified Court System.”

Updated (but still partial) accounting of Prez Biden's (and others') clemency record

Writing for the Pew Research Center, John Gramlich's has this new updated piece that provides an overview of Prez Biden's clemency record and how it compares to prior presidents. The article is headlined "Biden granted more acts of clemency than any prior president," and here are some excerpts (with links from the original):

Former President Joe Biden granted more acts of clemency than any previous chief executive on record, according to a Pew Research Center analysis of statistics from the U.S. Department of Justice.

Overall, Biden granted 4,245 acts of clemency during his four-year tenure in the White House. That far exceeds the total of any other president since the beginning of the 20th century, including Franklin D. Roosevelt, who granted 3,796 such acts during his 12 years in office. It is also far ahead of the current total of President Donald Trump....

The Justice Department’s statistics do not count clemency granted to entire classes of people by proclamation, such as the actions taken by Presidents Jimmy Carter and Gerald Ford to forgive thousands of Vietnam War-era draft dodgers. Biden granted clemency this way, too: In October 2022 and December 2023, he granted pardons by proclamation to people convicted of certain federal marijuana offenses. And in June 2024, he issued a proclamation granting pardons to former military service members convicted of violating a since-repealed ban on consensual gay sex.

Over four years, Biden issued 80 pardons and 4,165 commutations for a total of 4,245 acts of clemency.

The number of pardons Biden issued is the second lowest on record; only George H.W. Bush granted fewer (74). But the nature of some of Biden’s pardons is historically unique.  Biden issued “preemptive pardons” to several prominent people who had not been convicted of, charged with or even investigated for any crimes....

Unlike his relatively infrequent use of pardons, Biden stands out for the sheer number of commutations he granted. His total was more than double the number granted by the next-closest president, Barack Obama, who issued 1,715 during his eight years in office.

The vast majority of Prez Biden's commutations involved the nearly 1500 sentences bering served by the COVID home confinement cohort in December 2024 and the nearly 2500 sentences bering served for "non-violent drug offenses."  I am hoping we will eventually see a more detailed accounting of the demographics and other aspects of Prez Biden's record-setting commutations.

North Carolina state judge rules that "race was a significant factor" in capital jury selection

As reported in this AP article, "racial bias tainted the decision to strike Black people from the jury pool and to impose the death penalty in the 2009 trial of a Black man in North Carolina, a judge ruled on Friday, part of what he called “glaring” patterns of bias in a prosecutorial district outside the capital." Here is more:

Hasson Bacote was among a group of 15 death row inmates whose sentences were commuted to life without parole last year by Gov. Roy Cooper in one of his final acts in office. That means the ruling won’t make a legal difference for Bacote. However it could help several other death row inmates in similar circumstances, said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation.

In addition to the problems that prejudiced Bacote’s trial, Superior Court Judge Wayland Sermons Jr. found that racial bias tainted jury selection and sentencing in other Johnston County cases. Sermons found “glaring” bias in the fact that Black defendants in capital cases were sentenced to death 100% of the time while similar white defendants received a death sentence only 45% of the time.

The judge said race was a “significant factor” in the decisions to seek the death penalty in the first place and in jury selection, when looking at other cases tried by Assistant District Attorney Gregory Butler as well as other death penalty cases in the same prosecutorial district, which at the time included Harnett and Lee counties.

In Bacote’s case, Butler struck 75% of prospective Black jurors and only 23% of prospective non-Black jurors. In Butler’s other cases, risk of removal from the jury pool by peremptory challenges was more than 10 times higher for Black candidates than for non-Black candidates, Sermons wrote.

Butler testified that he never struck a juror for a “racial reason.” Sermons found that unconvincing. In Bacote’s case, for example, Butler explained his removal of five Black jurors by citing their opposition to the death penalty. However, “Butler did not strike white jurors who expressed similar reservations, in some cases with nearly identical language,” Sermons wrote....

The North Carolina Department of Justice, whose lawyers represented the state in Bacote’s case, have already “notified the court that we intend to appeal,” said Nazneen Ahmed, a spokesperson for Attorney General Jeff Jackson, who leads the department.

Bacote challenged his death sentence under North Carolina’s 2009 Racial Justice Act, which allowed prisoners to receive life without parole if they could show that racial bias was the reason for their death sentence.  The law was repealed in 2013, but the state Supreme Court has ruled that it still applies to any prisoner who had a Racial Justice Act case pending at the time of the repeal.

During a two-week hearing last fall, Sermons listened to evidence that included statistical studies of how the death penalty is implemented in North Carolina and Johnston County in particular. In his Friday ruling, the judge said the weight of the evidence did not prove that racial disparities prejudiced death penalty cases statewide.

The full 120-page ruling(!) is available at this link.

Notable lengthy new district court opinion rules US Sentencing Commission lacked authority to authorize sentence reduction based in part on "changes in law"

A helpful reader made sure I saw a lengthy new opinion issued today addressing the US Sentencing Commission's sentence reduction guideline, § 1B1.13(b), and particularly its provision that a "change in the law" can sometimes provide a basis for a reduction. The full 40-page opinion in US v. Chineag, No. 01-00607  (SD Fla Feb. 6, 2025) (available for download below), is worth a full read, as Judge Rodolfo Ruiz II covers lots of ground and details the long-running legal debate over § 1B1.13(b)(6). Here is a key introductory paragraph from the first few pages of the opinion:

The Court concludes that Mr. Chineag cannot establish that he is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).  Neither his age nor the circumstances of his arrest are sufficient to render him eligible for relief under the Policy Statement’s plain terms. See U.S.S.G. §§ 1B1.13(b)(2), (5).  And Mr. Chineag cannot rely on his unusually long sentence as a basis for relief.  The Court cannot apply that provision of the Policy Statement — section 1B1.13(b)(6) — as a matter of law, because it exceeds the scope of the Commission’s delegated authority in allowing courts to consider expressly nonretroactive changes in law, like section 401(a) of the FSA, as “extraordinary and compelling reasons” for a sentence reduction.  Because Mr. Chineag has failed to establish that he is eligible for a sentence reduction, the Court DENIES the Motion.

This summary sets the basic framework for the analysis that follows, as Judge Ruiz notes in various ways that Congress did not make key sentencing provisions of the First Step Act retroactive.  As suggested above, I recommend the full opiinion to see the full argument, though I will here flag a paragraph from the opinion that helps highlight why I do not think the Commission acted beyond its authority:

The Court does not doubt the well-intentioned policy rationale that led the Commission to promulgate this Policy Statement.  And the Court recognizes the hard work undertaken by the Commission to cabin the terms of section 1B1.13(b)(6). See Public Meeting, supra, at 4–10 (Apr. 5, 2023).  A court may consider a change in law only if (1) the defendant has served at least ten years of their sentence; (2) there would be a “gross disparity” between the sentence being served and the sentence likely to be imposed after the change in law came into effect; and (3) individualized circumstances demand it.  This clearly evinces a good-faith effort on the Commission’s part to narrowly tailor the class of defendants who would be eligible for a sentence reduction.  But “[a]textual good policy cannot overcome clear text.” Ins. Mktg. Coal. Ltd. v. Fed Commc’ns Comm’n, 2025 WL 289152, at *8 (11th Cir. Jan. 24, 2025) (citing Util. Air. Regul. Grp. v. EPA, 573 U.S. 302, 325 (2014)).  If a statute, like section 401(a) of the First Step Act, is clearly nonretroactive, it cannot be rendered retroactive by simply adding the label “extraordinary and compelling.”

Download United States v. Chineag opinion SDFla

Again, I encourage everyone to read this full opinion and its full accounting for its conclusions.  But I must explain why I find the last line quoted above problematic.  As I have explained in prior posts, it does not seem right to me to conclude that § 1B1.13(b)(6) in any way "render[s] retroactive" any change in law.  When a statutory sentencing change is made retroactive, defendants then have an absolute legal right to benefit fully from that change regardless of any other circumstances or sentencing factors.  In contrast, § 1B1.13(b)(6), does not provide any right for anyone to claim any sentencing benefit as a matter of law, it merely says -- in limited circumstances on its own terms and in conjunction with the additional limit of 3553(a) factors -- that a "change in the law" can be a judicial consideration for the exercise of sentence-reduction discretion (which never has to be granted and which, on a case-by-case basis, a judge can find not extraordinary or compelling).

It makes perfect sentence to me that Congress would conclude, when passing major sentencing reductions in the First Step Act, that it ought not give thousands of defendants an unlimited, complete, broad legal right to retroactive sentence reductions (which in many cases might require plenary resentencings), but still would want the expert sentencing agency to set the terms of possible case-by-case sentence reductions attentive to the significant statutory changes it had just enacted.  Put another way, that the Congress did not want to deploy a kind of sentencing "meat cleaver" through retroactivity does not entail or even suggest that it wanted to preclude the US Sentencing Commission from authroizing judges to deploy a sentence reduction scalpel when justified.  And, as noted in other posts, I cannot find any express text in the First Step Act or any other act of Congress seeking to hamstring the Commission on this front.  Indeed, the only on-point text, 28 USC § 994(t), places only one express limit on the Commission's work in this arena.

Spotlighting efforts to address problem of abuse survivors subject to long prison terms

Writing at Bolts, Lauren Gill has this notable new article focused on New Jersey developments that tap into a broader story. The full title of the piece highlights its essentials: "For Abuse Survivors, a New Path to Release from New Jersey Prisons: Governor Phil Murphy commuted the sentences of three women convicted for killing abusers. Now advocates also want a legislative fix, and point to reforms in New York and Oklahoma." Here are excerpts:

On Dec. 13, [Dawn] Jackson was called into a prison administrator’s office and told to sit in front of a computer loaded with a Zoom call. Governor Phil Murphy’s face popped onto the screen. He told her that he was commuting her sentence and she would be released before Christmas.... The governor’s move came as part of a clemency program he launched last summer, inviting applications from people who fell into specific categories that he felt needed additional review.  All three women —Jackson, Denise Staples, and Myrna Diaz — applied under the same category: They were survivors who were either coerced by or committed a crime against their abuser.

Many other women who faced similar circumstances remain imprisoned in New Jersey.  Seventy-two percent of first-time offenders imprisoned for a violent crime at the Edna Mahan Correctional Facility, the state’s women’s prison, were abused by their victim, according to a 2023 report from the New Jersey Criminal Sentencing and Disposition Commission....

Advocates for criminal justice reform are cheering Murphy’s use of clemency, a tool he’d never used since coming into office seven years ago but that he is now promising to wield more often before he finishes his final term and leaves office at the end of this year.  But they also say that clemency is just a short-term solution that doesn’t account for glaring gaps in how the state’s criminal legal system treats abuse survivors.

The ACLU of New Jersey, along with other advocacy groups, are calling on legislators to create lasting protections that would provide relief to more men and women who have suffered abuse, and drafting a bill that they hope their legislative allies will introduce this session.  It would require judges to consider if someone has been abused prior to sentencing and create a process through which survivors who are already incarcerated can petition for a reduced sentence. 

Their proposal is inspired by legislation in New York and Oklahoma, passed in 2019 and 2024 respectively, that provide similar protections.... As of 2023, the most recent year with available data, 40 people had been resentenced under New York’s Domestic Violence Survivors Justice Act. Twenty-eight are people of color, which is in keeping with data showing that people of color are more likely to be prosecuted for fighting back against their abuser. Just one person has been resentenced in Oklahoma since the state enacted the Survivors’ Act last year. Eight petitions are still pending, Oklahoma Appleseed, an advocacy organization that has been leading resentencing efforts, told Bolts.  

"Forfeiture Takings"

The title of this post is the title of this new article authored by Shelley Ross Saxer now on SSRN. Here is its abstract:

Forfeiture laws allow law enforcement to seize property that has been used or possessed in violation of legal rules, often before an owner has a chance to contest the government’s seizure in court.  In the criminal context, forfeiture is an in personam action that requires a criminal conviction and is part of a defendant’s sentence.  In the civil context, however, forfeiture is an in rem proceeding brought against the property derived from or used to commit an offense––not against the person who committed the offense.  As such, a civil forfeiture does not require a criminal conviction or predeprivation hearing, and, under the ‘guilty property’ theory, will even apply to property whose owner may be wholly innocent of any wrongdoing.  But is an innocent-owner not entitled to ‘just compensation’ for government seizure under the Takings Clause of the Fifth Amendment?  Should property owners not be entitled to a predeprivation hearing that conforms with Due Process Clause of the Fourteenth Amendment?  And is civil forfeiture not subject to scrutiny under the Excessive Fines Clause of the Eighth Amendment?

This Article reveals that courts have generally declined to answer these questions in the affirmative, primarily by adherence to a somewhat outdated reliance on the historical justifications for early Anglo-American forfeiture laws and the traditional distinction between criminal and civil remedies.  The problem is that what started as practical way to enforce maritime law in the seventeenth-century has since evolved into a widespread use of modern forfeiture to enforce all types of laws and generate substantial revenue to support law enforcement operating budgets.  Therefore, it is time to reassess the history of forfeiture law and its applicability to modern law enforcement practices.  This Article begins with an examination of the historical background of criminal and civil forfeitures developed in England before eventually being incorporated into the United States judicial system.  It then discusses due process challenges to the seizure and forfeiture of property based on the divide between civil and criminal proceedings; explores takings challenges to civil and criminal forfeitures, impoundments, police damagings and destruction, and tax forfeitures; and examines the role that excessive fine challenges play in civil forfeitures and fines.

The Article proposes a framework for reexamining the historical foundation of modern forfeiture that has allowed government to circumvent constitutional protections and created unmanageable financial incentives for law enforcement to maximize forfeiture actions. In essence, this framework suggests that we discard the legal fiction of “guilty property” theory in favor of a rebuttable presumption that any forfeiture, whether civil or criminal, be treated as punitive and therefore subject to appropriate due process requirements and excessive fines challenges.  And if the government fails to return property to an innocent owner, retains more property than required to compensate the government, or fails to promptly return seized property in the same condition to criminal defendants whom the government fails to prosecute or whom the jury acquits, the government should be responsible for paying just compensation for a taking under the Fifth Amendment.  Finally, the Article denounces the courts’ continuing use of the nonsensical “police power” and “necessity” exceptions to the Takings Clause to dismiss takings claims against the government for civil forfeiture and police destruction of private property.

Notable new compassionate release ruling finds trial penalty/co-defendant disparity to be extraordinary

A helpful colleague flagged for me a notable new federal district court sentence reduction opinion, US v. Cannon, No. 4:95-cr-30 (CDL), 2025 WL 326065 (MD Ga. Jan. 29, 2025).  I recommend the opinion in full (though I have not found a non-Westlaw version), and the very paragraph helps highlight why the opinion is a great read:

‘Tis the season to get out of jail early.  The former President, on his way out the door, commuted the sentences of thousands of federal prisoners, including several sentenced by the undersigned who had received lawful sentences for serious and dangerous criminal conduct.  The incoming President issued hundreds of pardons and commutations before the paint was completely dry on the walls of the refreshed Oval Office.  While the magnitude of these sentence reductions appears unprecedented, the Executive Branch does not have the monopoly on mercy and compassion.  Congress within the last fifteen years has enacted the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 and the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (hereinafter “FSA”). During that time, numerous retroactive amendments to the federal sentencing guidelines and statutory sentencing laws have been adopted, resulting in the reduction of thousands of sentences for federal prisoners.  By recently expanding the grounds for granting “compassionate release,” Congress and the Sentencing Commission have created a pseudo-parole system within the Judicial Branch administered by district judges, federal magistrates and probation officers.  These new justifications for sentence reductions provide hope for prisoners who unsurprisingly respond with motions for compassionate release.  The Defendant in this case has previously filed two such motions, both of which were denied.  He now presents another one; and the third time may very well be the charm.

The opinion is legally notable because the US District Judge Clay Land decided not to rely on USSG § 1B1.13(b)(6) as the basis for the sentence reduction even though a magistrate judge had so recommended.  Instead, Judge Land opted to rely on USSG § 1B1.13(b)(5) (the “catch-all” provision), and here is part of his explanation:

The Court finds that under the limited circumstances here, the disparity of Cannon's sentence compared to that of his codefendants is of similar gravity to warrant a reduction of his sentence.  Here, Cannon suffered a substantial penalty by exercising his constitutional right to require the Government to prove his guilt beyond a reasonable doubt to the satisfaction of a unanimous jury.  As previously explained, Cannon, as the 23-year-old get-away driver, received a sentence of 1,313 months (109 years and 5 months) — essentially a life sentence for a young man four years removed from being a teenager.  Although his conduct was serious and facilitated the criminal conduct of his codefendants, his personal conduct was primarily limited to driving the get-away vehicle.  While a gun was found under the seat of his car, the evidence did not indicate that he ever discharged the gun.  No one was physically harmed as a result of his conduct in driving the car.  At the time of his sentencing, he had a criminal history category of III.  Under later retroactive amendments to the sentencing guidelines, his criminal history category would be considered category II. His codefendants, who arguably engaged in more violent and dangerous conduct by entering the targeted establishments of the robberies and actually holding up the victims at gunpoint, made plea deals with the Government which resulted in sentences of 240 months for one defendant and 300 months for the other.

The Court understands that sentence disparities between codefendants are often ordinary.  But when that disparity is as large as it is here and when the criminal conduct of the defendant who received the substantially higher sentence was clearly less dangerous than that of his codefendants, such circumstances may rise to extraordinary.

Could (and should) a Prez seek to have broad clemency grants reviewed by courts?

The question in the title of this post is prompted in part by a notable opinion from last week authored by US District Judge Gary Brown in US v. Andrews, 20-CR-546 (SDNY Jan. 28, 2025) (available here).  Here is a segment of the interesting opinon:

In less than a month, the federal courts have been inundated by more than 5,500 mass pardons and grants of executive clemency that seemingly bypassed the rigorous vetting processes developed over the last century.  This case is one of them.

This opinion should not be construed as criticism of the reasons underlying the pardons and grants of clemency.  Two presidents of contrasting ideology have issued mass pardons and grants of clemency for very different purposes.  While history may judge the wisdom of these actions, this Court may not.  However, this case, and others like it, spotlight the problems that invariably arise when a president’s unreviewable pardon authority is deployed impetuously, resulting in careless execution of the president’s directives.

In this matter — involving sex trafficking, narcotics distribution and perjury — the grant of executive clemency seems inconsistent with its purported rational.  This Court must abide by this action, while exercising its responsibility regarding the vestige of the sentence imposed, i.e., oversight of the defendant during a four-year period of supervised release.

I recommend the Andrews opinion in full because it provides a good example of a case in which a person who was included within a "mass" (or "blanket" or "class") clemency may not have been someone the President really would have wanted in the class if all aggravating factors had been given case-specific consideration.  That reality, of course, is the inherent risk with any mass clemency: even if nearly all persons within the class merit clemency, there is almost always going to be one or two or ten cases in which other facts or factors make a particular clemency recipient unworthy.  (The "cash for kids" judge is one example from Prez Biden's mass commutation of the home confinement cohort; this Andrews case is one example from Prez Biden's mass commutation of non-violent drug offenders; violent offenders are examples from Prez Trump's mass pardon of Jan 6 defendants.)

The unavoidable problem of a bad apples in a mass clemency bunch should not, in my view, prevent a President from doing broad and blanket clemency grants.  But I wonder if future presidents might do mass clemency grants that include some authority for courts to review/limit grants based on, say, a defendant having an especially violent criminal history or some other specified  factor.  A half century ago, the Supreme Court wrote in Schick v. Reed, 419 U.S. 256 (1974) that "Presidents throughout our history as a Nation have exercised the power to pardon or commute sentences upon conditions that are not specifically authorized by statute.  Such conditions have generally gone unchallenged and, as in the Wells case, attacks have been firmly rejected by the courts."  This dicta would seem to support the idea that a President could grant a mass pardon subject to a condition of some kind of court review.

And yet, even if a President could grant mass pardons and/or clemencies conditioned on some kind of court review, would that be a good idea?  Reading this Andrews opinion gives the impression that the court still views its initial sentence as sound and just, and I suspect most sentencing judges are often going to be inclined to see merit in their judgments before any clemency relief.  Might authorizing some court review of some clemency grants lead to undue court rejection of clemency grants?   

Brennan Center produces focused piece providing "A Federal Agenda to Promote Safety and Justice"

Yesterday, the Brennan Center for Justice published this new 10-page report titled "A Federal Agenda to Promote Safety and Justice." The report, authored by Hernandez Stroud and Rosemary Nidiry, is crafted with the Trump administration and the current Congress in mind, and here are a couple paragraphs from its introductory section:

This agenda presents crucial, targeted measures the Trump administration and Congress should champion over the next four years to prevent crime, reduce incarceration, improve oversight, save taxpayer dollars, and promote the successful reentry of formerly incarcerated people.  The recommendations include ways to improve the federal criminal justice system, where the president and Congress can exert the most direct influence, as well as funding measures to shape policies at the local, state, tribal, and territorial levels.  Some proposals require legislation, while others can be achieved through executive action. Many have been implemented on a small scale in recent years, yielding promising results that merit expansion.

During his first term, President Trump signed the groundbreaking First Step Act of 2018, which comprised a spate of criminal justice reforms.  Among other things, it addressed unfair sentences and offered second chances to people in prison.  Now the president and Congress can build on that legacy and make the criminal justice system work better for all.

Some of the specific proposals that follow seem realtively realistic, while others strike me more as wishful thinking.  But the document serves as one notable accounting of what a progressive criminal justice reform organization may view as sensible reform priorities in 2025 and in the years to follow.

Judge Block continues to make case for broad second-look sentencing mechanisms

In this post from September, I noted Adam Liptak's Sidebar column discussing federal compassionate release issues in conjunction with Judge Frederic Block's new book, "A Second Chance: A Federal Judge Decides Who Deserves It."  I was pleased to see today that Judge Block is continuing to make the case for second-look sentencing via this new press commentary titled "Second Look Act paves the way for sentencing reform."  I recommend the full piece, and here is how it starts and ends:

In November 2022, I freed two people from prison. I could do that as a federal judge, because in 2018 Congress passed the First Step Act, allowing me to assess requests for compassionate release from individuals who, although they may have been convicted of serious offenses, have demonstrated that they deserve an opportunity for a second chance.

New York has the chance to ensure that state judges too have the ability to reevaluate sentences: The "Second Look Act" would allow incarcerated people to apply for a resentencing hearing after 10 years....

[I]n many states, the only relief mechanisms from Draconian sentences are executive clemency or parole boards. Clemency is rarely granted, and parole hearings don’t provide incarcerated individuals a meaningful chance to present their case. In a nationwide grading of state parole boards, the Prison Policy Initiative gave 36 states either an F or an F-.  New York was given a D-. Giving New York state judges the ability to reevaluate sentences would provide a humane mechanism for adjusting overly punitive sentences and correcting past injustices.

California, Colorado, New Jersey, Pennsylvania, Ohio and the District of Columbia have recently passed second-look legislation.  New York should join them and pass the Second Look Act, following Congress' lead and paving the way for statewide sentencing reform to address our unwarranted and inhumane mass incarceration problem.

A couple of interesting items on latest SCOTUS order list

Most of the case dispositions on this morning's Supreme Court's order list are cert denials, though there are a couple of items of interest for sentencing and criminal justice fans. 

First, the Supreme Court issued another Sixth Amendment GVR based on Erlinger, but this one comes in a state case out of Colorado involving application of its habitual offender law.  (Here is a link to the cert petition that secured the GVR in Fields v. Colorado.)

Second, Justice Thiomas, joined by Justice Alito, dissented from the denial of certiorari in a criminal case from Ohio that involved a conviction reversed by the Sixth Circuit on habeas review.  As suggested by the start of his eight-page dissent in Davis v. Smith, Justice Thomas is quite displeased with both the disposition of this case and the Sixth Circuit's habeas work more generally:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) sharply limits the power of federal habeas courts to review state criminal convictions.  The statute permits relief only when there is “no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011).  Unfortunately, some Sixth Circuit judges have “acquired a taste for disregarding AEDPA” and our cases on how to apply it. Rapelje v. Blackston, 577 U.S. 1019, 1021 (2015) (Scalia, J., dissenting from denial of certiorari). The decision below is the latest example of this practice.  Because I would not overlook the Sixth Circuit’s blatant and repeated disrespect for the rule of law, I respectfully dissent.

Prez Trum pardons 23 ant-abortion protesters convicted under the FACE Act

Another day, another set of notable pardond from Prez Donald Trump.  As reported in this Hill piece, "President Trump issued pardons Thursday for nearly two dozen anti-abortion activists who had been convicted of blockading abortion clinic entrances." Here is more:

“They should not have been prosecuted. Many of them are elderly people,” Trump said in the Oval Office. “This is a great honor to sign this.”

Anti-abortion groups and GOP lawmakers have been pressing Trump to pardon the protesters charged with violating the Freedom of Access to Clinic Entrances (FACE) Act, which makes it a federal crime to use “threats of force, obstruction or inflict property damage intended to interfere with reproductive health care services.”

“They have been heartened during their imprisonment and unjust prosecutions by your repeated messages to them during your campaign, urging them to persevere until you were able to take office, review their cases, and free them,” the Thomas More Society wrote in a January letter to Trump.

Trump’s pardons included a group convicted of a 2020 planned blockade of a District of Columbia-area abortion clinic. Protesters bound themselves with chains and locks and physically obstructed clinic staff and patients during the blockade, which was livestreamed on social media.

The FACE Act was passed in 1994 amid a rise of blockades and violent acts against reproductive health care facilities and patients, most notably the murder of David Gunn in Florida and the attempted murder of George Tiller in Kansas. Some GOP lawmakers have called for repealing the law, claiming it has been used disproportionately against anti-abortion protesters, who were being unfairly targeted....

The announcement of the pardons comes ahead of Friday’s annual March for Life anti-abortion protest. Trump is expected to address the crowd in a video.

Prez Trump pardons two DC police officers convicted for deadly chase and coverup

Prez Trump is not yet tired of using his clemency pen, as this new New York Times piece reports: "President Trump on Wednesday issued full and unconditional pardons to two Washington, D.C., police officers convicted after a chase that killed a young Black man in 2020, an episode that led to days of protests and clashes in the nation’s capital." Here is more:

Mr. Trump granted clemency to Officer Terence Sutton of the Metropolitan Police Department, who was sentenced last year to more than five years in prison for second-degree murder and obstruction of justice in the unauthorized pursuit, which killed the man, 20-year-old Karon Hylton-Brown. Officer Sutton was the first D.C. police officer to be convicted of murder for actions on duty.

The other pardon recipient, Lt. Andrew Zabavsky, was sentenced to four years in prison not directly for the killing of Mr. Hylton-Brown, but for conspiring with Mr. Sutton to cover up the deadly police chase. The two had been free pending the outcome of their appeals.

Going beyond his promises, Prez Trump fully pardons Ross Ulbright, who was serving LWOP sentence for drug crimes

When speaking to a libertarian group in May of last year, as noted in this post and reported in this Fox News piece, Donald Trump "vowed to commute the prison sentence of Ross Ulbricht, the founder of the online drug-selling site Silk Road."  But that has proved not quite accurate, as Politico reports here, because Prez Trump used his clemency power even more forcefully by granted a full pardon to Ulbright:

President Donald Trump on Tuesday granted a pardon to Ross William Ulbricht, the imprisoned creator of a dark web marketplace for drugs and other illicit products whose case had become a cause célèbre for libertarians and crypto enthusiasts.

Trump explicitly tied his decision to free Ulbricht, who is serving a life sentence, to the support his campaign drew from people who viewed the Silk Road founder as a pioneer and victim of government persecution.  “I just called the mother of Ross William Ulbricht to let her know that in honor of her and the Libertarian Movement, which supported me so strongly, it was my pleasure to have just signed a full and unconditional pardon of her son,” the president wrote on Truth Social.

He also compared Ulbricht’s treatment by authorities to the investigations that have dogged him in recent years. “The scum that worked to convict him were some of the same lunatics who were involved in the modern day weaponization of government against me,” he said.

In 2015, Ulbricht, who called himself the Dread Pirate Roberts, was sentenced in Manhattan federal court to life in prison for owning and operating Silk Road, the dark web marketplace for buying and selling drugs and other illegal goods. It gained a following among crypto enthusiasts and libertarians in part for being an early user of Bitcoin and challenging governmental authority.  Silk Road had thousands of listings for over 200 million dollars worth of narcotics, which were sold and distributed across more than 10 different countries.

Wowsa!

Prior posts from 2015 when Ulbright was sentenced:

• You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?
• Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht
• Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht
• "Before sentencing, Ulbricht begs for leniency: 'please leave me my old age'"
• Sentencing message sent: blazing a Silk Road for drugs gets you LWOP 

SCOTUS issues another notable 7-2 per curiam procedural reversal in a capital habeas case

The first "opinion" of the current Supreme Court Term was handed down as a curious little per curiam ruling in Hamm v. Smith after a recond number of relists.  As dicussed in this post from early November 2024, the Court by a 7-2 voted GVRed a capital case conderning issues of intellectual disability (with Justices Thomas and Gorsuch indictating they would have granted cert to hear the case on the merits).  And thanks to this new ruling today from the court in Andrew v. White, this per curiam ruling in favor of a capital defendant's cert petition no longer standar alone.   Here is how today's ruling starts:

An Oklahoma jury convicted Brenda Andrew of murdering her husband, Rob Andrew, and sentenced her to death.  The State spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant.  In a federal habeas petition, Andrew argued that this evidence had been so prejudicial as to violate the Due Process Clause.  The Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process.  That was wrong.  By the time of Andrew’s trial, this Court had made clear that when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Payne v. Tennessee, 501 U.S. 808, 825 (1991).

Intriguingly, Justice Alito concurs via an opinion of just one paragraph:

I concur in the judgment because our case law establishes that a defendant’s due-process rights can be violated when the properly admitted evidence at trial is overwhelmed by a flood of irrelevant and highly prejudicial evidence that renders the trial fundamentally unfair. See Payne v. Tennessee, 501 U.S. 808, 825 (1991); Romano v. Oklahoma, 512 U.S. 1, 12 (1994); cf. Rideau v. Louisiana, 373 U.S. 723, 726 (1963).  I express no view on whether that very high standard is met here.

JusticeThomas, joined by Justice Gorsuch, dissents in an opinion that, at 18 pages, runes eight pages longer than the Court's per curiam opinion. Here is how the dissent begins:

Our precedent under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes several rules for identifying clearly established federal law. 28 U.S.C. §2254(d)(1). We have instructed lower courts to avoid framing our precedents at too high a level of generality; to carefully distinguish holdings from dicta; and to refrain from treating reserved questions as though they have already been answered. The Tenth Circuit followed these rules.  The Court today does not. Instead, it summarily vacates the opinion below for failing to elevate to “clearly established” law the broadest possible interpretation of a onesentence aside in Payne v. Tennessee, 501 U.S. 808 (1991). In doing so, the Court blows past Estelle v. McGuire, 502 U.S. 62 (1991), which, months after Payne, reserved the very question that the Court says Payne resolved.  And, worst of all, it redefines “clearly established” law to include debatable interpretations of our precedent.  It is this Court, and not the Tenth Circuit, that has deviated from settled law.  I respectfully dissent.

Prez Trump grants 14 commutations and blanket pardons to all other Jan 6 defendants

Prez Trump, only hours after returning to the presidency, made robust use of his clemency powers by granting commutations and pardons for via this order titled "GRANTING PARDONS AND COMMUTATION OF SENTENCES FOR CERTAIN OFFENSES RELATING TO THE EVENTS AT OR NEAR THE UNITED STATES CAPITOL ON JANUARY 6, 2021."  Here is the full text: 

 

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

This proclamation ends a grave national injustice that has been perpetrated upon the American people over the last four years and begins a process of national reconciliation.

Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I do hereby:

(a)  commute the sentences of the following individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021, to time served as of January 20, 2025: 

•    Stewart Rhodes

•    Kelly Meggs

•    Kenneth Harrelson

•    Thomas Caldwell

•    Jessica Watkins

•    Roberto Minuta

•    Edward Vallejo

•    David Moerschel

•    Joseph Hackett

•    Ethan Nordean

•    Joseph Biggs

•    Zachary Rehl

•    Dominic Pezzola

•    Jeremy Bertino

(b)  grant a full, complete and unconditional pardon to all other individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021;

The Attorney General shall administer and effectuate the immediate issuance of certificates of pardon to all individuals described in section (b) above, and shall ensure that all individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021, who are currently held in prison are released immediately.  The Bureau of Prisons shall immediately implement all instructions from the Department of Justice regarding this directive.

I further direct the Attorney General to pursue dismissal with prejudice to the government of all pending indictments against individuals for their conduct related to the events at or near the United States Capitol on January 6, 2021.  The Bureau of Prisons shall immediately implement all instructions from the Department of Justice regarding this directive.

     IN WITNESS WHEREOF, I have hereunto set my hand this

twentieth day of January, in the year of our Lord two thousand twenty-five, and of the Independence of the United States of America the two hundred and forty-ninth.

Out-going Prez Biden uses final hours and minutes to grant a lot more notable clemencies

Given his many notable clemency actions before his last day in office, I had a feeling out-going Prez Joe Biden was going to keep using his clemency pen up to the very last monment.  These various stories about various grants today report on all the last-minute action (via The Hill):

"Biden pardons Fauci, Milley, Jan. 6 committee ahead of Trump inauguration"

"Biden commutes sentence of Native American activist Leonard Peltier"

"Biden pardons family members in final minutes of presidency"

Though many others are sure to attach many different adjectives to (now former) Prez Biden's clemency record, I will for now stick with the label "historic."

Biden issues five more pardons and two more commutations on last full day in office

As reported in this New York Times piece, "President Biden pardoned five activists and public servants on Sunday, including a posthumous grant of clemency to the civil rights leader Marcus Garvey, who mobilized the Black nationalist movement and was convicted of mail fraud in 1923."  Here is more:

Mr. Biden also commuted the sentence of two other people who are serving sentences for crimes that they committed in the 1990s that would keep them behind bars for the rest of their lives. The two individuals, whose petitions have overwhelming support from civil rights activists, will be released next month, Mr. Biden said.

Mr. Biden, who has issued more individual pardons and commutations than any other president, said that the clemency recipients had “demonstrated remorse, rehabilitation and redemption,” and “each made significant contributions to improving their communities.”

Prez Biden's full statement and details about the latest seven clemency recipients can be found at this link.  Interestingly, this latest statement does not include the phrase found in the last statement that Prez Biden "will continue to review additional commutations and pardons." I doubt that omission is meant to indicate that these seven grants are Prez Biden's last clemency, but perhaps only that he has really has no more time for further review with now less than 24 hours left in the Oval Office.

Prez Biden commutes sentences of "nearly 2,500 people convicted of non-violent drug offenses"

After a notably modest use of his clemency powers prior to the latest election, Prez Biden is on a historic clemency tear over the last eight weeks.  Today's actiona are set forth in this "Statement from President Joe Biden on Additional Clemency Actions":

Today, I am commuting the sentences of nearly 2,500 people convicted of non-violent drug offenses who are serving disproportionately long sentences compared to the sentences they would receive today under current law, policy, and practice.  With this action, I have now issued more individual pardons and commutations than any president in U.S. history.

Today’s clemency action provides relief for individuals who received lengthy sentences based on discredited distinctions between crack and powder cocaine, as well as outdated sentencing enhancements for drug crimes.  As Congress recognized through the Fair Sentencing Act and the First Step Act, it is time that we equalize these sentencing disparities.  This action is an important step toward righting historic wrongs, correcting sentencing disparities, and providing deserving individuals the opportunity to return to their families and communities after spending far too much time behind bars.  I am proud of my record on clemency and will continue to review additional commutations and pardons.

I cannot yet find a list of these notable commutation, but in terms of numbers and the impacts on prisoners and their families, this latest clemency action appears to be the most consequential by Prez Biden to date. And it sound like there might be more coming (though I am inclined to guess any final pardons will most likely be so-called pre-emptive ones).

UPDATE: Now available via the White House is this lengthy list of today's clemency recipients, a total of 2,490 persons.

Split Florida appeals court finds First Amendment violation in "sexual predator" label on state IDs

Florida’s Fifth District Court of Appeal handed down an interesting ruling late last week in Crist v. Florida, No. 5D2022-2966 (5th App. Fla. Jan. 10, 2025) (available here).  This press piece explains the basics effectively, and it starts this way:

A divided appeals court Friday ruled that a state requirement for convicted sexual predators to have the words “SEXUAL PREDATOR” on their driver’s licenses violates First Amendment rights.  The 2-1 decision by a panel of Florida’s 5th District Court of Appeal said the required designation is compelled speech that is not narrowly tailored to meet the state’s goals of informing the public about the presence of sexual predators.

Here is a notable passage from the majority opinion in Crist:

The point of strict scrutiny is that the government must carefully tailor a compelled speech policy that is no broader than necessary to advance its interest in protecting the public. In this regard, not every situation calls for the compelled public disclosure that an individual has previously committed a sex crime. A requirement that a registrant publicly wear a governmentally compelled tee shirt or badge saying SEXUAL PREDATOR would be highly effective in notifying the public about the person’s past sexual criminality; but it is doubtful such a requirement would be narrowly tailored to pass constitutional analysis.  The same would be true of tee shirts or badges saying FELON, STALKER, MURDERER, and so on for those released into society but who may have committed crimes with elevated risks of recidivism. In a similar way, the SEXUAL PREDATOR designation on driver licenses is not a narrowly tailored means to inform only those persons who have the greater need to know about an individual’s past sexual criminality.

Here is how the dissenting opinion starts:

Is it constitutional for the People of Florida to require a convicted sexual predator such as Michael Crist — as a consequence of his conviction — to have his state-issued Florida driver license marked with the words “SEXUAL PREDATOR” as one means of protecting vulnerable children from those who may desire to sexually abuse them?  Of course it is.

Yet, remarkably, the majority in its ill-conceived opinion concludes otherwise and declares unconstitutional sections 322.212(5)(c) and 322.141(3)(a), Florida Statutes (2021).  Undeterred by the long-standing and strong presumption that duly enacted Florida statutes are constitutional, the majority races into a dangerously wayward opinion that ends in a repugnant result with deleterious effect.

I presume we will hear from the Florida Supreme Court on this issue, and its ruling might in turn lead to US Supreme Court attention.

Sleeper or dud? False or misleading? More questions than answers in SCOTUS argument over federal false statement law

The Supreme Court heard oral argument today in Thompson v. US, which has the potential to be a major white-collar criminal case because it could narow (or expand) how federal criminal law defines a "false statement."  But this review of this oral argument at SCOTUSblog by Amy Howe suggest what and how the Court might rule is quite uncertain.  I recommend the full review, and here is how it starts:

The Supreme Court on Tuesday grappled with the case of Patrick Daley Thompson, a former Chicago alderman and member of Chicago’s most storied political dynasty. Thompson served four months in a federal prison for making false statements to bank regulators about loans he took out and did not repay. He contends that the federal law under which he was convicted does not apply to statements -- like his -- that are misleading but not false. But after just over 75 minutes of oral arguments, it wasn’t clear whether the justices would actually decide that legal question, or whether a majority of the justices believed that a ruling on that question would even help Thompson.