Sentencing Law and Policy

Hunter Biden indicted on nine new federal tax charges

As reported in this AP piece, "Hunter Biden was indicted on nine tax charges in California on Thursday as a special counsel investigation into the business dealings of the president’s son intensifies against the backdrop of the looming 2024 election." Here's more:

The new charges — three felonies and six misdemeanors — come in addition to federal firearms charges in Delaware alleging Hunter Biden broke a law against drug users having guns in 2018.

Hunter Biden “spent millions of dollars on an extravagant lifestyle rather than paying his tax bills,” special counsel David Weiss said in a statement. The charges are focused on at least $1.4 million in taxes he owed during between 2016 and 2019, a period where he has acknowledged struggling with addiction.

If convicted, Hunter Biden could face up to 17 years in prison. The special counsel probe remains open, Weiss said. Hunter Biden had been previously expected to plead guilty to misdemeanor tax charges as part of a plea deal with prosecutors. Defense attorneys have signaled they plan to fight any new charges, though they did not immediately return messages seeking comment Thursday....

The criminal investigation led by Delaware U.S. Attorney David Weiss has been open since 2018, and was expected to wind down with the plea deal that Hunter Biden had planned to strike with prosecutors over the summer. He would have pleaded guilty to two misdemeanor tax evasion charges and would have entered a separate agreement on the gun charge. He would have served two years of probation rather than get jail time.

The agreement also contained immunity provisions, and defense attorneys have argued that they remain in force since that part of the agreement was signed by a prosecutor before the deal was scrapped. Prosecutors disagree, pointing out the documents weren’t signed by a judge and are invalid.

After the deal fell apart, prosecutors filed three federal gun charges alleging that Hunter Biden had lied about his drug use to buy a gun that he kept for 11 days in 2018. Federal law bans gun possession by “habitual drug users,” though the measure is seldom seen as a stand-alone charge and has been called into question by a federal appeals court.

Prior related posts:

• Hunter Biden agrees to plea deal seeking to avoid prison time on tax and gun charges
• A "sweetheart deal"?: Minor (mostly uninformed) musings about Hunter Biden's prosecution and plea deal
• Some reflections in headlines on Hunter Biden's "sweetheart" plea deal 
• On eve of plea hearing for Hunter Biden, House Committee Chair urges district court to consider "improper conduct" surrounding prosecution
• Not a done deal: Hunter Biden ends up pleading not guilty to federal charges after district judge raises concerns about plea deal particulars 

In a different context, some more notable circuit caterwauling over the categorical approach to criminal history

In this post a few days ago, I flagged the notable opinion from a Third Circuit judge in US v. Harris, No. 17-1861 (3d Cir. Nov. 27, 2023) (available here), lamenting the ugly story of the Armed Career Criminal Act's reliance on the "categorical approach" to assess criminal priors required by Supreme Court precedent.   Today, I see a Second Circuit jurist authoring a distinct chapter of this ugly story in a different sentencing context.  Concurring in US v. Chaires, No. 20-4162 (2d Cir Dec. 7, 2023) (available here), Judge Sullivan explains why he thinks his circuit has it all wrong in its approach to "the 'controlled substance offense' predicate to U.S.S.G. § 4B1.1 — the career offender enhancement."  Hard-core sentencing fans may be uniquely able to work through the whole opinion, but it is worth the full read.  And Judge Sullivan's opinion ends this way:

Given the Commission’s indecision and the Supreme Court’s reluctance, I think it imperative that the courts of appeal converge on the best reading of the career offender enhancement.  To my mind, there can be little doubt which of the two options is that best reading.  The state-dependent approach is firmly grounded in section 4B1.2(b)’s text and will permit a relatively straightforward inquiry.  The categorical approach lacks any foothold in that text, has proven to be hopelessly difficult to administer, and illogically disqualifies untold numbers of state and federal narcotics convictions from serving as predicate offenses — even though those convictions were in fact premised on a federally controlled substance.  For these reasons, I continue to believe that section 4B1.2(b) calls for a state-dependent approach to controlled substance offenses, as six of our sister circuits have already held.  See Jones, 81 F.4th at 599 n.5.  I therefore urge the Second Circuit to correct this error through an en banc or mini en banc proceeding that would overrule our currently binding precedent in Townsend and bring us in line with the majority of circuits to have addressed this issue.   

The Sentencing Project releases latest report on racial disparities, "One in Five: Racial Disparity in Imprisonment - Causes and Remedies"

As noted in this October post, The Sentencing Project is "producing a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms."  Today, The Sentencing Project released this latest report in this series, the third I believe, titled "One in Five: Racial Disparity in Imprisonment — Causes and Remedies."  Here is part of this new report's executive summary:

The United States experienced a 25% decline in its prison population between 2009, its peak year, and 2021.  While all major racial and ethnic groups experienced decarceration, the Black prison population has downsized the most.  But with the prison population in 2021 nearly six times as large as 50 years ago and Black Americans still imprisoned at five times the rate of whites, the crisis of mass incarceration and its racial injustice remain undeniable. What’s more, the progress made so far is at risk of stalling or being reversed.

This third installment of the One in Five6 series examines three key causes of racial inequality from within the criminal legal system. While the consequences of these policies and issues continue to perpetuate racial and ethnic disparities, at least 50 jurisdictions around the country — including states, the federal government, and localities — have initiated promising reforms to lessen their impact.

1. Laws and policies that appear race-neutral have a disparate racial impact....

2. Racial bias influences criminal legal practitioners’ use of discretion....

3. A financially burdensome and under-resourced criminal legal system puts people with low incomes, who are disproportionately people of color, at a disadvantage....

Prior related posts:

• Sentencing Project releases first in series of reports on the "narrowing and persistence" of racial disparities CJ system
• The Sentencing Project releases latest report on racial disparities, “One in Five: Disparities in Crime and Policing”

"The Verdict on Private Criminal Justice"

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

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

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

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

"Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws"

The title of this post is the title of this notable new report produced by the Collateral Consequences Resource Center and authored by Margaret Love and Nick Sibilla. Here are parts of the report's introduction:

This report offers a comprehensive and up-to-date picture of the differing ways states have responded to the 1996 federal ban on access to SNAP and TANF benefits for those with a felony drug conviction, either by opting out of the ban or by modifying it, and includes illustrative maps and relevant sections of statutory text to facilitate analysis and comparison.

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) imposed a lifetime ban on federal food assistance benefits (SNAP) and Temporary Assistance for Needy Families (TANF) for anyone with a drug felony conviction obtained after passage of the Act. PRWORA allowed states to opt out of the ban or to modify it, and over the years all but one state has opted out of the ban or modified it for at least one of the two benefit programs. That said, fully half the states remain committed in some fashion to this outdated artifact of the War on Drugs.

Over the years there have been numerous reports critical of the policy underpinnings of the categorical ban on public welfare benefits imposed by PRWORA, and researchers have generally concluded that the ban is counterproductive even in modified form, including in criminal justice terms. Indeed, a recent empirical study of modified versions of the SNAP/TANF bans concluded that by “introducing greater state scrutiny of recipients’ conformity to state-sanctioned behavioral norms,” modified bans are “not inherently less punitive” than full bans.

We do not intend to dwell on the policy arguments against the PRWORA ban in this report. Rather, our purpose here is the more modest one of providing a detailed description of state laws that currently modify participation in the SNAP/TANF bans, for use by policymakers and advocates seeking further reforms. Surprisingly, this has not been done in the more than 25 years since PRWORA’s enactment. Two recent private sector studies have identified the extent of state participation in one or both of the PRWORA bans, but their conclusions are not consistent with one another or, in all cases, with our own research. Notably, neither of these studies documents the specific features of modified bans, which can vary widely from state to state in scope and effect.

Significantly, no previous report on the SNAP/TANF bans has included statutory text that would permit analysis of the ways various states have modified them, and comparisons between and among states. Our report attempts to remedy this shortcoming. We illustrate the national landscape of participation in the SNAP/TANF bans through a set of maps: one map shows the national landscape of participation in the PRWORA ban for all 50 states, and two additional maps show how states have modified the ban for each of the two benefit programs. A 30-page Appendix includes the text and an analysis of each state’s relevant law(s), providing additional detail about how access to benefits may be controlled differently even within the same general category of modification.

We hope that advocates in states that have not yet fully opted out of both the PRWORA bans will find this unique collection of research tools helpful as they work to complete this important law reform project.

Notable new Gallup polling on views about legal treatment of teens who commit violent crimes

Gallup released this new story about its latest polling on the treatment of juvenile offenders under the headline "Americans Divided on Treatment of Violent Juvenile Offenders."  Here are excerpts:

Americans divide evenly on whether the criminal justice system should treat teens who commit violent crimes the same as adults (46%) or give more lenient treatment in juvenile courts (47%).  This marks a shift in attitudes from two decades ago, when majorities of 65% in 2000 and 59% in 2003 felt juveniles aged 14 to 17 who commit crimes should be treated the same as adult criminals.

The latest results are from Gallup’s annual Crime survey, conducted Oct. 2-23.  The issue of how violent juveniles should be treated is increasingly relevant given the increase in mass shootings, particularly at U.S. schools, with the majority of K-12 school shootings perpetrated by children under age 18....

The views of Democrats, independents and younger adults have changed more than the opinions of Republicans and older adults.  However, all key subgroups show some movement away from believing that violent juvenile offenders should be treated the same as adults.  In fact, in 2000, the various political party and age subgroups generally held similar views, with between 60% and 68% of each believing juveniles should be treated the same as adults.

As a result of the disproportionate changes in opinion, Democrats and adults under age 50 now come down on different sides of the debate than Republicans and older Americans do.  Majorities of Democrats (61%) and adults under age 50 (56%) believe 14- to 17-year-olds who commit violent crimes should get more lenient treatment in a juvenile court, while majorities of Republicans (59%) and adults over age 50 (53%) believe such teens should be treated the same as adults. Political independents are evenly divided on the issue.

College graduates tend to believe juveniles should get more lenient treatment in the justice system, while those without a college degree tend to think juveniles should be treated like adults.  Parents of children under 18 (54%) are more likely than non-parents (45%) to favor teens receiving more lenient treatment in juvenile court....

Criminal justice statistics indicate that fewer young offenders are being tried as adults today than in the past.  Many states with separate juvenile justice systems have changed laws so children under age 18 are no longer automatically charged as adults for certain crimes.  Those laws may have changed because of a new understanding of adolescent development, a greater realization of the role poor mental health can play in teen criminal activity, and the possibility that young people with a criminal history can be rehabilitated.

"'Progressive' Prosecutors and 'Proper' Punishments"

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

After decades of relative inattention to prosecutorial elections, academics and activists recently have focused on “progressive prosecutors” as a promising avenue for criminal justice reform.  That said, the growing literature on progressive prosecutors reflects little clarity about what makes a prosecutor “progressive.”  Recent campaigns suggest disparate visions of how to operationalize “progressive prosecution.”  In this chapter, I describe four ideal types of progressive prosecutor: (1) the progressive who prosecutes, (2) the proceduralist prosecutor, (3) the prosecutorial progressive, and (4) the anti-carceral prosecutor.  Looking to sentencing policy as a case study, I examine how these different ideal types illustrate different visions of criminal justice reform. 

Impressive hand-wringing about the "categorical approach" to criminal history from Third Circuit judges

A helpful colleague made sure that I saw the notable opinion authored by Judge Jordan and joined by a half-dozen of his Third Circuit compatriots in US v. Harris, No. 17-1861 (3d Cir. Nov. 27, 2023) (available here).  The opinion is a concurrence in denial of rehearing en banc sought by the government hoping to overturn a key Third Circuit precedent, Mayo.  Mayo ruled a Pennsylvania's aggravated assault conviction did not qualify as "violent" to be a predicate for applying the Armed Career Criminal Act due to the "categorical approach" to criminal priors required by Supreme Court precedent. 

The full 42-page Harris opinion, which is filled with Mayo and mustard, is a must-read for anyone eager to better understand the mess that is federal law seeking to categorize state criminal priors.  I will here quote a number of paragraphs, mostly from the start and end of the opinion, though many more are worth reading: 

We recognize that our decision today declining en banc reconsideration of this matter will be a source of great frustration for the government.  Frustration is the gift that the “categorical approach” keeps on giving.  This peculiar analytical construct has forced us and other courts to reach perverse outcomes in many, many cases, this one being only the latest.  And even when the result of applying the categorical approach sometimes makes sense, time and effort is often wasted because a more obvious route to the sensible result is readily available.  Even worse is the difficulty of justifying the categorical approach and its outcomes to the citizenry we serve.  The public may not care whether anyone finds the categorical approach frustrating, but they do care about justice, and we are unable to explain how our holding in this case satisfies basic notions of right and wrong.  Despairing of that, we write to describe why the outcome here is compelled by precedent and to highlight why changes in the categorical approach are needed.

For those who may not be familiar with the categorical approach, we provide a brief overview of its origin and development, with particular focus on the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), the legislation that, along with another firearms statute, 18 U.S.C. § 924(c), and the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq., has been the primary seedbed for this extraordinary doctrine.  We then explain how application of the categorical approach regularly generates unjust results and taxes judicial resources.  We conclude by explaining our support for a more fact-based approach that would maintain key aspects of Supreme Court precedent while allowing courts to take account of an individual’s actual conduct and, hence, provide real justice....

Time and again, federal courts have been required to hold that state law felony convictions for conduct that plainly involved the use of force — including convictions for voluntary manslaughter, aggravated assault, assault with a deadly weapon with intent to kill, attempted rape, first-degree sexual abuse, sexual abuse by forcible compulsion, taking indecent liberties with a child, maliciously damaging or destroying property by means of an explosive, first-degree robbery, second-degree robbery, first-degree burglary, and second-degree burglary — do not qualify as “violent felonies” under ACCA.  Today, we are likewise compelled to reiterate, bizarre though it sounds, that shooting at a fleeing victim is not a “violent felony,” Harris, 68 F.4th at 141, while in Mayo, we were forced to say that bashing a victim in the head with a brick was not “violent” under ACCA....

Considering the well-intentioned provenance of the categorical approach, it is ironic that it has come to be such an impediment to the sound administration of justice.  Last year, Justice Thomas chose a different metaphor than hole digging, but his point seemed much the same when he memorably observed that the “‘categorical approach’ has led the Federal Judiciary on a ‘journey Through the Looking Glass,’ during which we have found many ‘strange things.’” Taylor, 142 S. Ct. at 2026 (Thomas, J., dissenting) (quoting Lewis Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982)). We hope the journey, and the digging, ends soon.

In the meantime, we have no choice but to deny the government’s petition for en banc review.

"Courtroom workgroup dynamics and implementation of Three Strikes reform"

The title of this post is the title of this new article published online through the journal Law & Policy and authored by Elsa Y. Chen, Emily Chung and Emily Sands.  Here is its abstract:

In 2012, California's voters passed a ballot initiative that scaled back the state's “Three Strikes” sentencing law and permitted certain individuals who were serving 25-to-life prison terms to petition for resentencing and potentially release.  Using analysis of original qualitative interview data supplemented with court administrative records, this study examines how characteristics of courtroom workgroup members; their intergroup dynamics; political, professional, and administrative considerations; and allocated resources were perceived by court officials to facilitate or impede the implementation of this reform in county courts.

Availability of staff and budget was associated with a higher proportion of completed case dispositions in the first 2 years of implementation, but resources were not the only factor associated with timely case processing.  Courtroom actors' seniority, experience, and professional security facilitated agreement on processes, schedules, and other details.  Small, stable, close-knit groups established routine procedures and developed expertise more quickly, but could not always avoid bottlenecks or delays.  Less stable workgroups had higher rates of denial of petitions for resentencing.  Positions toward Proposition 36 shaped by political, professional, or other priorities were perceived to influence some elected DAs' positions and line prosecutors' behavior, manifesting in cooperation, opposition, or mixed messages.

In (sentencing) memoriam: noting a few major sentencing majority opinions by Justice O'Connor

Justice Sandra Day O'Connor was nominated to be the first female Supreme Court Justice by President Ronald Reagan when I was in middle school, and I had been a law professor for nearly a decade by the time she stepped down from being an active member of the Court.   As is true for nearly every Justice, sentencing rulings do not comprise a major part of the notable and consequential corpus of opinions that Justice O'Connor authored during a quarter century on the Court.  (SCOTUSblog reports in this lengthy tribute that "during her nearly quarter-century as a justice, O’Connor wrote 645 opinion.")  But there are still more than enough notable sentencing rulings from Justice O'Connor to make a very long list if I were to detailed them all.  As a memorial, I figured I would take a few moments to provide an abridged list of just some sentencing highlights among the hundreds of controlling opinions authored by Justice O'Connor:

Tison v. Arizona (1987)

Miller v. Florida (1987)

Penry v. Lynaugh (1989)

Coleman v. Thompson (1991)

Monge v. California (1998)

Ewing v. California (2003)

By keeping this list abridged and focused on sentencing-related opinions for the Court, I have left off many of Justice O'Connor's other major contribution in the criminal justice space.  In terms of other big court opinions in the criminal justice arena, Justice O'Connor's work in Teague v. Lane (1989) is arguable the most consequential; with a focus on separate opinions, her major dissents in Apprendi v. New Jersey (2000) and Blakely v. Washington (2004) are especially memorable.

I suspect readers may recall fondly (or perhaps not so fondly) lots of other criminal justice opinions authored by Justice O'Connor not listed above.  I welcome thoughts about her sentencing legacy and any sorts of comments about Justice O'Connor's role in shaping our modern criminal justice jurisprudence.

DPIC releases year-end report emphasizing small number of executing and death sentencing states in 2023

The Death Penalty Information Center this morning released its annual report here under the heading "The Death Penalty in 2023: Year End Report Only Five States Conducted Executions and Seven States Imposed New Death Sentences in 2023, the Lowest Number of States in 20 Years." Here is the part of the report's introduction, with lots of data and details following thereafter:

This year is the 9th consecutive year with fewer than 30 people executed (24) and fewer than 50 people sentenced to death (21, as of December 1). The 23 men and one woman who were executed in 2023 were the oldest average age (tied with 2021) and spent the longest average number of years in prison in the modern death penalty era before being executed. As in previous years, most prisoners had significant physical and mental health issues at the time of their executions, some of which can be attributed to the many years they spent in severe isolation on death row. Continued difficulties obtaining lethal injection drugs led some states to explore new, untested methods of execution or revive previously abandoned methods. Other states enacted or continued pauses on executions while the state’s method of execution was studied....

The Supreme Court granted only one stay of execution, reflecting the view of some members of the Court that prisoners bring “last-minute claims that will delay the execution, no matter how groundless.” The Court granted certiorari in only four death penalty cases, all of which pertained to procedural issues, and turned away the overwhelming majority of petitions filed by death-sentenced prisoners. Some state officials and legislatures may once again feel unrestrained by the risk of judicial oversight or correction; Florida directly flouted Supreme Court precedent with new legislation making a non-homicide crime a death-eligible offense, while states like Alabama announced plans to use nitrogen gas in an untested, risky method of execution.

Notable resources and notice from the US Sentencing Commission

Via an official US Sentencing Commission email this afternoon, I received word on two new items of note and will just cut-and-paste the details here:

Public Meeting Scheduled for December 14, 2023 at 2:00pm (ET)

We invite you to join us on Thursday, December 14, 2023 at 2 p.m. (ET) for a public meeting of the U.S. Sentencing Commission.  The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby). The Commission will also livestream and record this event at the link below. The agenda follows:

• Vote to Adopt August 2023 Meeting Minutes
• Report from the Chair
• Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment

Livestream Link

Problem-Solving Court Resources

(November 30, 2023) As part of its policy priority work this year, the Commission collaborated with chief judges, clerks of court, and chief probation officers from all 94 federal judicial districts to compile and publicly release information in support of problem-solving court program development. Access an interactive map, table of program documents, and a timeline of Commission work at the link below.

• Explore Here

The big-ticket item here, of course, is "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."  Last year's proposed guideline amendments were quite significant and consequential, and I am excited to see in about two weeks if this year's proposals will merit the same description.

Oklahoma completes execution despite clemency recommendation by Oklahoma Pardon and Parole Board

As detailed in this new PBS News Hour piece, "Oklahoma executed death row inmate Phillip Hancock on Thursday, despite his claims of self defense and a recommendation for clemency by the Oklahoma Pardon and Parole Board."  Here is more:

Republican Gov. Kevin Stitt’s decision to allow the execution to move forward comes as some state Republicans and advocates call for a pause in executions and a review of Oklahoma’s 36 pending death row cases.

Hancock, 59, was convicted of two murders in 2001.  His attorneys and supporters maintain that he acted in self-defense, saying he was unarmed when he entered an Oklahoma City residence where Robert Jett Jr., 37, and James Lynch, 58, the two murder victims, were present.  Hancock has said he was attacked, beaten with a breakover bar, and threatened with a gun before managing to retrieve the weapon and fatally shooting the two men.  Hancock’s defense team argued the trial lacked physical evidence supporting the prosecution’s version of events.  A woman present during the incident testified that she could not witness the struggle, further complicating the narrative over what happened.

The state board voted 3-2 in favor of clemency in early November.  It was the fourth such recommendation since the state resumed executions in 2021, following a six-year moratorium. Stitt, who previously commuted the sentence of Julius Jones in 2021, did not intervene this time. He denied Hancock’s request for clemency just after 10 a.m. local time, when the execution was scheduled to begin....

Oklahoma has executed 122 people since 1976, the highest number of executions per capita in the country. 

“We are profoundly disappointed that Gov. Stitt has rejected the Pardon and Parole Board’s recommendation of clemency for Phillip Hancock,” Brett Farley of the Oklahoma Conservatives Concerned About the Death Penalty said in a statement. Oklahoma’s practice of capital punishment continues to be riddled with problems, including the inability of the state to prevent the execution of innocent people. Should the state proceed with the scheduled execution on Thursday, it will be yet another gross miscarriage of justice. Phillip’s case is one more reminder why we must insist state leaders reinstate a moratorium in order to correct these problems.”

Republican state Reps. Kevin McDugle and Justin J.J. Humphrey have been critical of Oklahoma’s death row sentences, saying people have been subject to system-wide failures in the state’s justice system, from ineffective defense counsel to prosecutorial overreach.  McDugle said that Hancock was undeserving of such a punishment.  “Right now I don’t believe in the death penalty in Oklahoma. I don’t,” McDugle told the PBS NewsHour in October.  “That’s why we are trying to fix it because if we can’t fix it to where we can execute those who deserve to be executed and quit executing those who don’t deserve to be executed … then we need to get rid of it.”

Earlier this year, supporters of Hancock, including his attorneys, provided the state board with key declarations.  One statement from Hancock’s former girlfriend claimed she arranged with one of the victims to lure Hancock to the house to be “taken care of.”  Hancock’s trial attorney, who admitted to a relapse of drug and alcohol addiction during the case, expressed embarrassment about his representation.  The foreperson of the jury that convicted Hancock provided a declaration that the majority of jurors believed Hancock initially acted in self-defense but later became the aggressor.

Prison Policy Initiative sets out long list of "Winnable criminal justice reforms" for state systems

Prison Policy Initiative has produced this new 16-page document titled "Winnable criminal justice reforms: A Prison Policy Initiative briefing on promising state reform issues for 2024."  I believe this kind of publication is now an annual production by PPI, and this year's version lists 32 suggested reforms.  Here is how the report describes its mission, followed by links to the main reform areas identified:

In this year’s guide to winnable criminal justice reforms, we’ve added information on how Medicaid and Medicare laws can be changed to better serve people in reentry, and we’ve added a section on efforts around the country to legalize marijuana and decriminalize other drugs.  As always, we’ve also updated our list of Winnable criminal justice reforms and added new example bills and resources where you can learn more.

While this briefing is not intended to be a comprehensive platform, we’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts on reducing incarceration and ameliorating harms experienced by those with a conviction history, without further investments in the carceral system.  We have also included some talking points and resources that can be used to push back when carve-outs to criminal justice reforms (that is, categorical exclusions of people who would benefit from reforms) are being discussed.

Because each state’s criminal legal system varies so much — from law and procedures, the data collected, and even how the same words are defined — it can be difficult to apply lessons from other states to the same problem in one’s own.  This guide is designed to facilitate the sharing of ideas and information across states.  That said, while we point to multiple bills, model legislation, and regulations in this document, we also recognize that many of these examples reflect compromise and could be strengthened or made more comprehensive.  This information is intended to serve as a resource as you determine which problems are a priority in your state and which lessons from elsewhere are most useful.

The reforms focus on nine areas:

• Expanding alternatives to criminal justice system responses to social problems
• Reducing the number of people entering the “Revolving doors” of jails and prison
• Improving sentencing structures and release processes to encourage timely and successful releases from prison
• Reducing the footprint of probation and parole systems and supporting success on supervision
• Protecting incarcerated people and families from exploitation
• Promoting physical and mental health among incarcerated and formerly incarcerated people
• Giving all communities equal voice in how our justice system works
• Setting people up to succeed upon release
• Eliminating relics of the harmful and racist “war on drugs”

Does Justice Gorsuch's praise for juries suggest he would be a vote against acquitted conduct sentencing?

The question in the title of this post flows from the notable comments made by Justice Gorsuch in today's Supreme Court oral argument in McElrath v. Georgia.  The full argument can be found here; and this Washington Post piece provides the essentials and starts this way:

Under delusions that she was poisoning him, a teenage Damian McElrath stabbed his mother, Diane, to death in 2012. He washed up, called 911 and told the dispatcher what he had done and why he was right to have done it. A few years later, when the state of Georgia prosecuted him, a jury found that McElrath was insane at the time — and also, not insane.

The jury found him “not guilty by reason of insanity” on the charge of “malice murder,” meaning that he lacked the capacity to distinguish right from wrong or that his delusions meant he lacked criminal intent. But on charges of felony murder and aggravated assault, the jury found him “guilty but mentally ill.”

When the Georgia Supreme Court reviewed the case, it said the conflicting verdicts were so illogical as to be “repugnant” and told prosecutors they could try McElrath again on all three charges. That decision created an exception to the U.S. Constitution’s double jeopardy clause, which says that once acquitted, a defendant cannot be retried on the same charge.

At a hearing Tuesday before the U.S. Supreme Court, the justices appeared ready to tell their Georgia counterparts that it is their turn for a do-over. Justices across the ideological spectrum seemed to believe that once a person has been acquitted of a charge — for whatever reason the jury chooses — the matter is closed.

As Justice Neil M. Gorsuch put it, for “230 years in this country’s history, we have respected acquittals without looking into their substance and without looking into how they fit with other counts and said a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system, and we do not ever talk about whether they make sense to us.”

Regular readers likely know I wholeheartedly agrees with Justice Gorsuch's vision that "a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system...." But, of course, if prosecutors can pursue, and a judge can impose, a sentence based on acquitted conduct, then a jury does not serve as much of a check on judges or prosecutors or overreach, and we do not respect the democratic design of our Constitution.  If the Justices ever get around to taking up the issues of acquitted conduct, which they should at some point feel duty bound to do, I certainly hope Justice Gorsuch gives meaning to his words in that context.

Some division in headlines covering SCOTUS divisions in ACCA drug priors cases

I flagged here yesterday the Supreme Court's oral arguments scheduled for today in the ACCA cases of Brown and Jackson.  Like so many ACCA cases, the task here of sorting out what prior drug offenses trigger ACCA's 15-year mandatory minimum prison term for illegal gun possession is not for the faint of heart.  The full 85 minutes of argument can be accessed here, and I welcome thoughts about where the Court may seem headed.  The press accounts of the argument, partially linked below, seem to highlight the Justices' division though also suggest that the defense seem perhaps more likely to prevail:

From Bloomberg Law, "Justices Back Criminal Defendants in Firearm Sentencing Rule"

From Courthouse News Service, "Justices split over longer sentences for defunct drug charges"

From Law360, "Justices Hear Dueling Rules In ACCA Drug Definition Case"

From the New York Times, "Justices Search for Middle Ground on Mandatory Sentences for Gun Crimes"

From the Washington Examiner, "Supreme Court divided on how firearm sentencing law applies to criminal drug offenders"

Notable accounts of implementing Florida's new non-unanimous capital sentencing

This afternoon brought up two notable new items in my news feed concerning Florida's new experiences with its new laws for administering the death peanlty:

From the Death Penalty Information Center, "Florida Judge Imposes Life Sentence for Joshua McClellan, Overriding Non-Unanimous Jury Recommendation for Death":

On November 20, Florida Circuit Judge Heidi Davis sentenced Joshua McClellan to life in prison after a non-unanimous jury returned a recommendation of death in September by a 10-2 vote.  Judge Davis noted the mitigation evidence presented by Mr. McClellan’s defense, including mental health evaluations and testimony regarding his traumatic upbringing, as an explanation for her decision.  Mr. McClellan was one of the first defendants to receive a non-unanimous death recommendation under a new law signed earlier this year by Governor and presidential candidate Ron DeSantis, allowing death sentences when only 8 jurors vote in favor.

From the Tampa Bay Times, "Court weighs if Tampa rapper’s jury should be unanimous on death penalty: State law now allows death by a jury vote of 8-4. Courts disagree whether the new law can apply to pending cases":

This spring, the Legislature and Gov. Ron DeSantis approved a law that eliminated the requirement that juries be unanimous if they are to recommend the death penalty. The new minimum threshold is a vote of 8-4. Thus, even if four jurors vote for life in prison, a court can still impose capital punishment.  But the question lingers: What to do with defendants, like Adams, whose cases were pending when the law changed? Should they be subject to the new 8-4 rule?

Lawyers for [Billy] Adams argued in a court hearing last week that the change would amount to an ex post facto law — a law that applies retroactively — which is explicitly prohibited in the U.S. and Florida constitutions.

Assistant Public Defender Jamie Kane told a judge that the new law creates new pressure for the defense. Under the previous law, the defense only had to convince one juror that a life sentence was appropriate. Under the new law, they have to convince at least five.  “That is a big difference,” Kane said. “Our burden has increased dramatically.”

Hillsborough prosecutors responded that the new 8-4 standard was merely a procedural change in the law, and therefore it should apply to cases going forward, including Adams’. “Does this retroactively increase punishment for this crime?” Assistant State Attorney Lindsay Hodges said in the hearing.  “The answer is no. ... The punishment is still death.”

SCOTUS hearing two criminal cases to start latest argument session

The Supreme Court is back to in-person work on Monday with the start of its final oral argument session for 2023.  And this one begins with two criminal cases over the first two days, as described in this SCOTUSblog post by Amy Howe:

The justices will kick off the December argument session on Nov. 27 with oral argument in a pair of consolidated cases, Brown v. United States and Jackson v. United States, involving the Armed Career Criminal Act.  The ACCA [provides a 15-year]  minimum sentence ... for an individual who had been convicted of a felony and possesses a firearm when that person has at least three “serious drug offenses.”  The question before the justices is how to define “serious drug offense” for purposes of the ACCA. Eugene Jackson and Justin Rashaad Brown argue that the definition should incorporate the federal drug schedules that were in effect either when the individual committed the federal firearm offense (Jackson) or at the time of sentencing for that offense (Brown), while the federal government argues that it should instead incorporate the schedules that were in effect at the time of the state drug offenses.

On Tuesday, the justices will confront double jeopardy issues in the case of Damian McElrath, a Georgia man who was found not guilty by reason of insanity on one murder charge arising from the stabbing death of his mother, while he was found guilty but mentally ill on a different murder charge (as well as an aggravated assault charge).  On appeal, the Georgia Supreme Court threw out both of the jury’s verdicts and sent the case back for a new trial on all charges. It concluded that the verdict was “repugnant”: McElrath’s acquittal on one murder charge required the jury to find that he was insane when he killed his mother, but he could only be convicted on the other charges if the jury found that he was not insane.

When the case returned to the lower court, McElrath argued that the Constitution’s ban on double jeopardy barred the state from trying him again on the murder charge on which he had been acquitted.  But the Georgia Supreme Court rejected that argument.  It explained that a “repugnant” verdict is essentially “void” and therefore does not create a double jeopardy problem.  McElrath renews that argument in the Supreme Court, while the state defends the Georgia Supreme Court’s ruling.  Under state law, Georgia contends, there was never a valid verdict in McElrath’s case, and he can therefore be retried.

UPDATE: I just noticed that LawProf Michael Dorf has this lengthy post about the ACCA cases, titled “Today at SCOTUS: Guns or Drugs?,” which makes some great statutory interpretation points.  Here is a taste:

Each of the briefs proceeds as though the rule it proposes is somehow dictated by the statutory text understood in light of well-accepted background understandings. In fact, however, it's perfectly clear that the statutory language, even read in light of those background understandings, is highly under-determinative as to the question presented.

In such cases, we are accustomed to the Justices indulging (whether or not consciously) their ideological priors. Here those priors are unclear. The more liberal Justices don't like guns but are probably inclined to think that Congress has over-criminalized drug offenses. The more conservative Justices are not especially troubled by drug criminalization; nor are their Second Amendment sensors likely to be activated by the "bad guy with a gun" scenarios these cases present

Pardon stories focused on humans to close out the Thanksgiving weekend

In this post a few days ago, I bemoaned the recent headlines about governors and presidents exercising clemency that were mostly about "fowl" pardons.  But in the days that followed, I was pleased to see a couple of notable new stories about actual humans getting pardoned by governors with notable clemency records.  Here are headlines and some details:

From Missouri, "Missouri governor granting pardons at pace not seen since WWII era":

For a dozen years as a rural sheriff, Mike Parson was the face of justice, the man ultimately responsible for catching and locking up local lawbreakers. Now governor, Parson also has become the face of mercy by pardoning more than 600 people in the past three years, more than any Missouri governor since the 1940s.

“I still believe in law and order. I believe criminals need to be treated as such, and they’ve got accountability,” Parson said in an interview with The Associated Press. But “it doesn’t mean they’re a criminal all their life,” Parson added. “I think you’ve got to be able to look at it.”...

Parson's staff began systematically tackling the backlog in December 2020, even as more requests poured in. They set a goal of evaluating around 100 cases each month, weighing applicants' work and education history, community involvement, character references and contrition for their crimes. The types of crimes, how young offenders were and how much time had passed also came into play as Parson made his decisions. So far, Parson has denied about 2,400 clemency requests while granting 613 pardons and 20 commutations.

From Wisconsin, "Gov. Tony Evers extends pardons to 1,111 with 82 more ahead of Thanksgiving"

Gov. Tony Evers extended his pardon count to 1,111 with 82 more announced ahead of Thanksgiving, mostly for people convicted of low-level drug offenses or minor theft. “It continues to be a privilege to hear about individuals’ lives, work, and what they have done to overcome their past mistakes and build positive, rewarding lives for themselves and their families,” said the Democratic governor, who has pardoned far more people than any of his predecessors.

The pardons announced Wednesday include a carpenter who was found with marijuana in his home over 20 years ago, a middle school teacher who tried to cash a fraudulent check in her late teens and a general labor supervisor who stole propellers from boats over two decades ago. About one third of the 82 pardons were for people convicted of possessing or selling marijuana. Another third had been convicted of possessing or selling other controlled substances.

A mid-holiday weekend round-up of various sentencing opinions

I am taking much of the holiday weekend off from blogging (which may make many thankful).  And that provides an excuse to keep up a bit by rounding-up here some opinion pieces that have caught my eye recently:

From Forbes, "Bureau Of Prisons Backtracking On First Step Act Law"

From Governing, "No, Criminal Justice Reform Isn’t Driving Rising Crime"

From the New Republic, "The Turkey Pardon Is a Perfect Emblem of Our Very Dumb Politics"

From the New York Post, "Thank NY’s criminal justice ‘reforms’ for this double murder"

From Rolling Stone, "I’m Serving Life in Prison. It’s a Slow-Motion Death Sentence"

From the Times Union, "Parole reform saved New York money. Invest it in helping people stay out of the criminal justice system."

From the Wall Street Journal, "Tech Can Keep Ex-Offenders Out of Jail"

 

And a notable pair of commentaries from a notable pair of commentators at Reason:

From Josh Blackman, "A Reversal in Rahimi Will Be Tougher to Write Than Critics Admit"

From Will Baude, "It's Not So Hard to Write an Opinion Following Bruen and Reversing in Rahimi

"Gideon at 60: A Snapshot of State Public Defense Systems and Paths to System Reform"

The title of this post is the title of this lengthy and detailed new report, authored by Marea Beeman and Claire Buetow, which was produced for the the National Institute of Justice in collaboration with the Justice Department’s Office for Access to Justice.  This NIJ webpage provides the report's executive summary, and here is how that summary starts:

In 1963, the Supreme Court decided in Gideon v. Wainwright that, for criminal cases to be fair, defense lawyers are “necessities, not luxuries.”  States must ensure that people who cannot afford defense lawyers are provided with them at government expense.  The Court has clarified Gideon’s scope over time but has left decisions about the administration, funding, and oversight of public defense to the states, which have created a variety of models.

In collaboration with the U.S. Department of Justice’s Office for Access to Justice (ATJ), the National Institute of Justice (NIJ) sponsored this report on contemporary public defense system models in recognition of the 60th anniversary of Gideon.  The report presents findings from a national scan of the models currently used for adult, trial-level, criminal cases in U.S. state, local, and tribal jurisdictions.  Key research questions were to identify the prevalence of different models, factors contributing to how jurisdictions select different models, and variations in case and other outcomes associated with each model.  Findings are based on (1) a review and synthesis of publicly available materials, including research reports, law review articles, government agency websites, and news accounts, and (2) interviews with 17 subject matter experts, including academics, researchers, civil rights advocates, a representative of people directly impacted by the criminal legal system, indigent defense commission staff and members, public defense program staff, a current court administrator, a former prosecutor, a former judge, and a former legislator (some stakeholders reflect multiple roles).

The researchers find that 60 years on, whether Gideon has been fulfilled is, at best, an open question in most state and local criminal courts.

Quite the SCOTUS Term shaping up for those intrigued by drugs on the docket

Regular readers recall my eagerness to flag the work of the Drug Enforcement and Policy Center at The Ohio State University in the form of our "Drugs on the Docket" podcast.  As noted in prior posts when the podcast was first released, a set of six episodes comprises the first season, with each episode running under an hour.  The whole original season is fully available on Apple Podcasts, Google Podcasts and YouTube.  As noted last month, the "Drugs on the Docket" team (of which I am a member) this fall produced some updated content through shorter recordings covering new developments related to issue each of the full episodes of Season 1. 

I have noted before my (admittedly biased) view that the curated discussions in this "Drugs on the Docket" podcast are all interesting and informative, and I am persistently eager to encourage everyone to check out this podcast webpage and to add the podcast to their holiday listening plans.   But it dawned on me today, as I was thinking about some of the Supreme Court's recent cert grants in criminal justice cases, that the current SCOTUS Term is full of drugs on their docket.  Specifically, I count at least five criminal cases on the Supreme Court's docket that are integrally connected to big issues in drug prosecutions and sentencings.  With help from SCOTUS blog, consider:

Pulsifer v. U.S., No. 22-340 [argued 10.2.2023]: sentencing in federal drug cases

Culley v. Marshall, No. 22-585 [argued 10.30.2023]: due process rules for forfeitures (often in drug cases)

Brown v. U.S., No. 22-6389 [to be argued 11.27.2023]: defining serious drug offenses for ACCA sentencing

Smith v. Arizona, No. 22-899 [to be argued: 1.10.2024]: Confrontation Clause rules for experts (often in drug cases)

Diaz v. U.S., No. 23-14 [still to be set for argument]: expert testimony on mens rea in drug offense

And this list leaves out some other notable criminal cases, like Rahimi dealing with the reach of the Second Amendment and the new Erlinger case dealing with ACCA application (among others), that will surely echo through the prosecution of drug defendants in various ways.  We are already hard at work on Drugs on the Docket season 2, and SCOTUS may be helping to ensure we have plenty of content for many seasons to come.

Thanksgiving week filled with clemency headlines ... so far involving only turkeys

I used to blog a lot advocating for greater use of executive clemency powers, especially during the holiday season.  But, perhaps unsurprisingly, lame-duck times rather than turkey times still tend to be when governors and presidents finally dust off their clemency pens.  But, since my feed was filled today with news of Prez Biden's courageous "fowl" clemency efforts, I figure it worthwhile to do a brief round-up of recent clemency headlines:

From Arkansas, "Sarah Huckabee Sanders Pardons Turkey But Denies Clemency for Wrongly Imprisoned Man"

From Michigan, "Dolly Pardon announced as winning name of turkey receiving executive clemency for Thanksgiving"

From Missouri, "Governor issues clemency for turkeys from Manson: Birds raised by teen get traditional pardon"

From the White House, "‘Congratulations, birds’: Biden jokes fall flat as he pardons Thanksgiving turkeys"

From interested observers, "Turkeys Pardoned While 18,000 Wait"

After Rahimi(?): mapping out the next big Second Amendment cases

After the Supreme Court in Heller in 2008 (and McDonald in 2010) first established an enforceable individual Second Amendment right, we all had to wait another dozen years until the Supreme Court in Bruen explained more fully how that right is supposed to be applied.   But, perhaps unsurprisingly, with the more individual-right-friendly Second Amendment standard created by Bruen leading to more individuals prevailing on Second Amendment claims in federal criminal cases, it now seems quite likely that the Justices will be taking up a number of Second Amendment gun cases in the coming Terms.  Of course, the Court already has the notable Rahimi case pending, but a few recent major articles from major papers are already flagging what might be the next big Second Amendment cases.  Consider:

From the New York Times: "The Supreme Court’s Search for a More Attractive Gun Rights Case"

    Subhead: "The next big Second Amendment case, after one on domestic violence, could be about whether the government can disarm a man who lied to get food stamps."

From USA Today, "This man fudged his income to put his family on food stamps. Should he be denied a gun?"

    Subhead: "Second Amendment appeals are arriving at a moment of uncertainty over just how far the Supreme Court's conservative majority is willing to go to roll over gun laws."

Of course, regular readers know these issues have been percolating in lower courts in the roughly 17 months since the Bruen ruling. Indeed, as spelled out in the posts below, I have been flagging these issues since the hours after Bruen was handed down:

• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?

Supreme Court grants cert on application of Sixth Amendment rights for key issue for applying ACCA

In this post two weeks ago, I flagged the Supreme Court filing by the United States in response to a cert petition in an Armed Career Criminal Act (ACCA) case in Erlinger v. US, No. 23-370.  In that post, I noted the feds wanted cert granted in this case:

Petitioner [contends] that the Sixth Amendment requires a jury to find (or a defendant to admit) that predicate offenses were committed on different occasions under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v. United States, 595 U.S. 360 (2022), the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context.  This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires. 

This morning, via this order list, the Supreme Court granted cert in Erlinger. Here is the formal Question Presented from the federal government's cert petition:

Whether the Constitution requires that a jury find (or the defendant admit) that a defendant’s predicate offenses were “committed on occasions different from one another” before the defendant may be sentenced under the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(1).

And though this case deals with a relatively little issue in the application of ACCA, I cannot help but wonder if this case could prove to be a big Sixth Amendment case.  Notably, we have not had a significant Sixth Amendment case on sentencing issues before SCOTUS since Haymond, and that was before Justices Barrett and Jackson were member of the Court. Moreover, as I noted in my prior post, Justice Thomas has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights (on originalist grounds), so maybe this ACCA issue could even provide the Court an opportunity to reconsider that (historically suspect) exception altogether.

I assume Erlinger v. United States, will get argued in the spring and may end up one of the last (small?) cases to get decided by the Justices this Term.  I also expect that SCOTUS will end up appointing someone to defend the Seventh Circuit's decision below since both the feds and the defendant here have the same (pro-defendant) view of this issue.

You be the political operative: should Donald Trump lean into his sentencing reform record?

The New York Times has this notable new piece, headlined "Pardon Recipients Seek to Sell Trump on His Own Sentencing Law," which prompts the question in the title of this post.  The article meanders a good bit, and it does not really get that deep into either modern sentencing policy and politics.  But, with now less than a year until the 2024 election, it serves as a useful reminder that there will be lots of sentencing policy and politics worth discussing in coming months.  Here are excerpts:

In early July, former President Donald J. Trump received a somewhat unlikely visitor at his golf club and estate in Bedminster, N.J.: Michael Harris, the founder of Death Row Records, who had been imprisoned for drug trafficking and attempted murder, came to meet privately with the man who had pardoned him....

Mr. Harris is the type of high-profile Black celebrity that some Trump associates hope will next year highlight the former president’s signature criminal justice reform law, the First Step Act, which was one of Mr. Kushner’s key priorities during his time as an adviser in the White House.

Although Mr. Harris is not a beneficiary of the sentencing law, having received his pardon on Mr. Trump’s last full day in office after serving decades in prison as part of a series of clemency grants, he has nonetheless become an evangelist for it....

Mr. Harris declined to discuss what took place in their meeting, but he expressed gratitude toward the Trump administration in a statement and praised the sentencing law. “The passing of the First Step Act and similar initiatives surrounding” criminal justice reform “has provided much needed relief for so many deserving individuals and families,” he said....

Not everyone around the former president believes that he should highlight the First Step Act, which Mr. Trump himself soured on soon after signing it. Mr. Trump, who is often influenced by what he thinks his core voters want, felt affirmed in that view after a number of hard-core Republicans began to criticize it in 2021 and 2022 amid a rise in crime. Some of his conservative associates, who see the bill as problematic with Republicans, said privately that they were unhappy that he had met with Mr. Harris....

He has also grown increasingly violent in his rhetoric about crime in America, saying that he admires the freedom that despots have to execute drug dealers and that shoplifters should be shot on the spot.

At the same time, he has made clear that he viewed the law, which, among other things, sought to reduce mandatory minimum sentences for some crimes, as something that should have won him support from Black voters.  “Did it for African Americans,” he wrote to this reporter for a book in 2022 when asked about his repeated expressions of regret about the law. “Nobody else could have gotten it done.  Got zero credit.”...

It remains to be seen how willing Mr. Trump will be, if at all, to speak about the criminal justice law, or whether Mr. Harris might be asked to speak publicly.

The same week that Mr. Harris met with Mr. Trump, the former president received a call from Alice Johnson, whose life sentence on charges related to cocaine possession and money laundering was commuted after a meeting between Mr. Trump and the celebrity Kim Kardashian. Ms. Johnson was the person who recommended to Mr. Kushner and Ms. Trump that Mr. Harris be granted clemency.

“My whole conversation was just encouragement” about the criminal justice reform bill, said Ms. Johnson, who spoke at the Republican National Convention in 2020 and was pardoned by Mr. Trump a short time later. She said no one had asked her to call him or engage in politics for him next year. But, she added, “he actually is proud of that piece of legislation.”

The title of this post reflects my sense that former Prez Trump himself seems to approach sentencing issues (like many others) through the lens of a political operative.  Though a variety of his actions and statements reflect a "tough on crime" posture, Trump proved while he was president that he would be willing to support reforms if he thought there could be potential political advantage therein.  What this exactly this might mean for Trump and the GOP going forward on a wide range of criminal justice issues, especially with Trump himself subject to multiple criminal indictments, remains to be seen.

New Clean Slate Act signed into law in New York with an estimated five million criminal records to be sealed

As reported in this New York Times piece, "roughly two million people convicted of crimes in New York may be eligible to have their records sealed as part of a broad criminal justice initiative that was signed into law on Thursday by Gov. Kathy Hochul."  Here is more:

Under the so-called Clean Slate Act, people who complete their sentences and remain out of trouble for a set period — three years for misdemeanors, eight for eligible felonies — will have their convictions sealed.  The most serious crimes, including sex crimes, murder and most other class A felonies, will not be eligible for automatic sealing.

New York is now one of a dozen states that have enacted such laws, which are aimed at interrupting the cycle of recidivism by enabling formerly incarcerated people to access jobs and housing. The law will go into effect a year from now, though it will take three more years to clear the records of those currently waiting.

Ms. Hochul said that she was proud to sign the legislation, which she said would provide economic opportunities while protecting public safety. “The best crime-fighting tool is a good-paying job,” she said.

The bill’s signing is a victory for criminal justice advocates who spent years lobbying stakeholders on behalf of the measure. By the time it passed New York’s Democrat-dominated Legislature earlier this year, it boasted an impressive coalition of business, labor, government and advocacy groups who preached of its economic, moral and public safety benefits.

Indeed, one of the biggest ostensible hurdles was Ms. Hochul herself, who over her two years in power has split with progressives over some criminal justice measures, citing public safety concerns.  While Ms. Hochul was supportive of the general concept of the initiative, and included a scaled-back version in her legislative agenda last year, she expressed concern over the scope of the initial bill.

Ultimately, the governor was able to extract concessions from its sponsors before its passage, including an extended waiting period and liability protections for businesses that hire people who have criminal records.  Records will remain visible to law enforcement and court personnel, as well as certain sensitive employers.  Unlike previous iterations of the bill, the final version makes all class A felonies, except those related to drug possession, ineligible for sealing.

The concessions helped to quiet opposition, including from law enforcement groups.  While the major sheriffs', police and prosecutors’ associations have not backed the measure, they have refrained from publicly criticizing it.

An analysis from the Division of Criminal Justice Services showed that roughly 1 million felonies and up to 4 million misdemeanor convictions would be eligible for sealing....

Many Republicans still oppose the legislation, saying it may seal records that they believe ought to remain public.  They point to the existing process for sealing records, in which a judge approves each request.

Senate Minority Leader Robert Ortt, who represents the Niagara Falls area, said he was disappointed in Ms. Hochul’s decision and skeptical of the law’s projected economic benefits.  “I do not think this is going to solve the employee shortage that our employers are seeing here,” he said.  “We continue to pass legislation like this that is really geared toward those who have broken the law, the criminal class, and not those who might be victims,” he lamented.

"The Embarrassing Sixth Amendment"

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

In his 1989 essay “The Embarrassing Second Amendment,” Sanford Levinson suggested that left-leaning scholars avoid studying the Second Amendment because they are embarrassed that its text might mean what gun-rights proponents claim it means — an individual right to bear arms.   Levinson urged such scholars to better engage the text, both to model intellectual integrity and to avoid unnecessarily ceding the terms of a critical constitutional debate.

This Article makes a similar argument with respect to the right to counsel.  The Sixth Amendment guarantees the “the assistance of counsel” in “all criminal prosecutions.”  To be sure, the Supreme Court held in Scott v. Illinois (1979) that the right is not “fundamental” in state cases where a defendant is not sentenced to jail time, citing federalism and budget concerns.  Relying on Scott, courts routinely subject defendants to criminal conviction, fines, pretrial detention, and significant collateral consequences like deportation, all without a lawyer.  Yet Scott appears squarely at odds with the Sixth Amendment’s text.  To retain Scott, the Court would either have to concede that “all criminal prosecutions” should not be enforced as written, or apply the text only in federal court, not state court.  Either concession would be hard for the current Court to make, given its ostensible commitments to textualism and to “single-track incorporation.”

Why, then, have progressives not pushed harder to overturn Scott on text-based grounds?  This Article suggests they may be embarrassed by the argument’s implications, for three reasons.  First, many scholars assume that the Sixth Amendment, under a textualist or originalist lens, does not guarantee a right to appointed counsel for indigent defendants.  It follows that progressives must avoid critiquing Scott on textualist grounds to avoid jeopardizing the right to appointed counsel under Gideon.  Second, progressives might be wary that the Court would embrace “dual-track incorporation,” justifying the dilution of other rights in state court.  Third, progressives appear to increasingly believe that an expanded right to counsel, like other procedural rights, is unimportant or even counter-productive.  This Article rebuts each of these concerns in turn and ultimately argues — as did Professor Levinson in the Second Amendment context — that scholars and litigants should engage the text and follow it where it leads: a right to counsel in all criminal prosecutions.

Federal court rules Second Amendment precludes felon-in-possession prosecution for defendant facing 15-year ACCA mandatory minimum

I have not sought to keep track of all the on-going litigation in district courts over whether federal felon-in-possession prosecutions under 18 USC § 922(g)(1) are still constitutional after Bruen.  But this new story in the Chicago Tribune, headlined "Chicago judge rules federal statute barring felons from possessing guns is unconstitutional but says it’s a ‘close question’," seemed notable because it appears that a federal district judge in Chicago has concluded that it violated the Second Amendment to prosecute for gun possession someone who would qualify for the Armed Career Criminal Act's 15-year mandatory minimum federal prison term.  Here are some of the reported details:

As a five-time convicted felon, Glen Prince was facing a mandatory minimum 15 years behind bars when he was charged in federal court with being a felon in possession of a handgun stemming from an armed robbery on CTA train in 2021. Instead, Prince’s case was tossed out earlier this month by a federal judge who ruled the statute barring felons from possessing handguns is unconstitutional in light of a recent U.S. Supreme Court decision.

The ruling by U.S. District Judge Robert Gettleman is the first of its kind to come down in Chicago’s federal court and joins a host of other similar cases that have thrown the decades-old law into a sort of legal limbo as the issue works its way back to the high court. The implications are particularly large in Chicago, where there are hundreds of pending felon-with-firearm cases stemming largely from the U.S. attorney’s office efforts to throw federal law enforcement resources into the fight against the city’s relentless gun violence.

Gettleman’s Nov. 2 ruling in Prince’s case was immediately appealed by the U.S. attorney’s office. The 7th Circuit U.S. Court of Appeals has set a Dec. 19 deadline for prosecutors to file a brief, court records show. It contradicts a handful of recent rulings by other district judges here upholding the felon-with-firearm law, saying that Second Amendment protections on gun possession have traditionally applied only to “law-abiding citizens.”

On the national level, the U.S. Justice Department last month urged the Supreme Court to overturn a lower-court ruling in Philadelphia that the law violated the constitutional rights of a man who possessed a weapon after pleading guilty years earlier to food-stamp fraud. The Biden Administration argued in its petition that the ruling conflicts decisions from two other appeals courts upholding the ban and “opened the courthouse doors to an untold number of future challenges by other felons.”...

In his opinion throwing out the charge against Prince, Gettleman wrote that while the government has historically prohibited certain people from possessing guns, prosecutors had not met their burden “to prove that felons are excluded from ‘the people’ whose firearm possession is presumptively protected by the plain text of the Second Amendment.”

Gettleman said the blanket ban on felons having guns “imposes a far greater burden” on gun rights than other historical categorical exclusions, such as one during the Revolutionary War when “individuals who refused to declare a loyalty oath to the emerging government” were barred from having firearms. The judge also wrote the fact that modern guns are more deadly and violence is more prevalent in today’s society doesn’t “justify a different result.”

“This nation’s gun violence problem is devastating, but does not change this result under Bruen, which this court finds rests on the severity of (the felon-with-firearm law) rather than its categorical prohibition.” Gettleman did, however, note the issue was a “close question” in his mind, as “violence plagues our communities and that allowing those who potentially pose a threat to the orderly functioning of society to be armed is a dangerous precedent.”

Prince, 37, was ordered released from the Metropolitan Correctional Center the day after Gettleman’s decision — but he didn’t walk free, records show. Court records show Chicago police arrested him at the jail at 71 W. Van Buren St. on new charges filed in Cook County accusing him of being an armed habitual criminal. He’s now being held without bond in the Cook County Jail.

According to the charges filed in federal court, Prince was a suspect in the armed robbery of three men on a CTA train in September 2021. After following the usage of a Ventra card stolen during the robbery, police arrested Prince on Sept. 12, 2021, on a CTA train platform in the 200 block of South State Street. He was allegedly carrying a loaded 9mm Smith and Wesson handgun as well as a fully loaded magazine, cocaine, and the victims’ Ventra card. He was originally charged in Cook County with aggravated unlawful use of a weapon by a felon, but those charges were dropped by state prosecutors after the federal indictment was filed last year, records show.

Prince’s criminal history includes three other armed robbery convictions as well as 2014 conviction for aggravated battery to a police officer, court records show.... Prince’s federal case was among more than 600 similar cases filed by the U.S. attorney’s office over the past five years where investigations by Chicago police and other local law enforcement are later removed to U.S. District Court. At least 50 people have been charged in 2023 alone with violating the felon-with-firearm ban, court records show.

The reasons to charge a defendant in federal court vary, but prosecutors generally promote it as a tool to get the city’s most violent, repeat offenders off the street instead of putting them back into the Cook County justice system. The potential penalties also are typically much tougher. Not only does the federal charge of unlawful possession of a weapon by a felon carry a maximum 10-year prison sentence, defendants must serve 85% of their sentence, instead of being eligible for day-for-day credit in the state system. If a defendant, such as Prince, has previously been convicted of three or more violent felonies, federal prosecutors can seek an enhanced, mandatory minimum sentence of 15 years behind bars, or up to life.

UPDATE: The 22-page opinion in US v. Prince, No. 1:22-cr-00240 (N.D. Ill Nov. 02, 2023), is available at this link.

New US Sentencing Commission releases new updated report on "Demographic Differences in Federal Sentencing"

The US Sentencing Commission this morning released this notable new research report titled "Demographic Differences in Federal Sentencing."  As noted in this 2020 post, the USSC has completed similar reports looking at federal sentencing outcomes and the way its advisory guidelines function about every five or six years since the Booker ruling, and this latest report is summarized on this USSC webpage in this way:

The Commission has studied the issue of demographic differences in sentencing throughout its history.  In four prior reports, studying various time periods, the Commission has examined whether differences in the length of federal sentences imposed on individuals were associated with demographic characteristics of those individuals. 

Based on continued interest in this issue and consistent with best practices, the Commission re-examined and refined the analytical methods used in its previous reports to better understand sentencing disparity in the federal courts. Using new analytical techniques and newly available data, this report examines federal sentencing practices in the five fiscal years after the 2017 report to determine if the differences observed in the Commission’s prior reports continued to persist. 

This report presents the results of that work, and furthers the Commission’s mandates to establish sentencing policies and practices that eliminate unwarranted sentencing disparities and to serve as a center for information on federal sentencing practices.

The USSC webpage also sets forth these "Key Findings":

Sentencing differences continued to exist across demographic groups when examining all sentences imposed during the five-year study period (fiscal years 2017-2021). These disparities were observed across demographic groups — both among males and females.

• Specifically, Black males received sentences 13.4 percent longer, and Hispanic males received sentences 11.2 percent longer, than White males.
• Hispanic females received sentences 27.8 percent longer than White females, while Other race females received sentences 10.0 percent shorter.

The sentencing differences in the data the Commission examined largely can be attributed to the initial decision of whether the sentence should include incarceration at all rather than to the length of the prison term once a decision to impose one has been made. In particular, the likelihood of receiving a probationary sentence varied substantially by gender and race.

• Black males were 23.4 percent less likely, and Hispanic males were 26.6 percent less likely, to receive a probationary sentence compared to White males.
• Similar trends were observed among females, with Black and Hispanic females less likely to receive a probation sentence than White females (11.2% percent less likely and 29.7% less likely, respectively).

The sentencing differences were less pronounced when the analyses focused solely on cases in which a sentence of imprisonment was imposed, which comprise 94 percent of all cases sentenced during the five-year study period.

• Focusing solely on these cases, Black males received lengths of incarceration 4.7 percent longer, and Hispanic male received lengths of incarceration 1.9 percent longer, than White males.
• There was little difference among females receiving a sentence of imprisonment. The only statistically significant difference in the length of imprisonment among females was among Hispanic females, who received lengths of incarceration 5.9 percent shorter than White females.

Differences in the length of imprisonment across demographic groups were concentrated among individuals who received relatively short sentences.

• Among individuals sentenced to 18 months or less incarceration, Black males received lengths of incarceration 6.8 percent longer than White males. The difference narrowed to 1.3 percent for individuals who received sentences of greater than 18 months to 60 months; but for sentences longer than 60 months, Black males received lengths of incarceration approximately one percent shorter than White males. Few differences were statistically significant when comparing sentences for females.

Across all analyses, females received sentences that were shorter, on average, than males.

• When examining all sentences imposed, females received sentences 29.2 percent shorter than males. Females of all races were 39.6 percent more likely to receive a probation sentence than males. When examining only sentences of incarceration, females received lengths of incarceration 11.3 percent shorter than males.

Some early chatter and speculation about Sam Bankman-Fried coming federal sentencing

A lot of folks had a lot of interesting comments in response to my first post about the future sentencing of Sam Bankman-Fried following his conviction on all seven federal criminal counts brought against him at his first trial.  Since that post, I have seen a number of press pieces with various early takes on his sentencing (which is scheduled for March 2024 and, I would guess, will take place even later).  Here is a partial round up:

From CNBC, "Sam Bankman-Fried faces over 100 years in prison at sentencing. Experts weigh in on how much time he’ll actually get"

From CryptoSlate, "SBF will likely serve 25 years rather than max sentence, former DOJ prosecutor says"

From the Daily Mail, "Sam Bankman Fried, 31, likely faces 50 YEARS behind bars, legal expert believes: $10bn FTX crypto fraudster's crimes carry maximum of 115 years behind bars"

From Forbes, "Sam Bankman-Fried Faces 110-Year Max Sentence After FTX Trial — Here’s How Long Experts Think He’ll Be Behind Bars"

From the New York Times, "Sam Bankman-Fried Could Get 100 Years in Prison. What Is Fair?"

Because I do not trust my money in crypto, I am not sure I want to trust my sentencing predictions to CryptoSlate.  That said, and though I am never inclined to place any actual bets on any actual legal proceedings, I do think 25 years may serve as a reasonable over/under for Judge Lewis Kaplan's coming sentencing decision.  

Prior related post:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 

Three Justices dissent from denial of cert in Illinois lawsuit over solitary confinement of mentally ill inmate

As mentioned in this prior post, this morning's new Supreme Court order list included a cert grant in a federal drug case and a lengthy dissent from the denial of cert in a state prison conditions case.  The cert grant in Diaz v. US could touch on a variety of interesting issues that might provide to divided the Justices in ways other than the now "usual" 6-3 divide.  But the state prison conditions case, Johnson v. Prentice, did produce the usual 6-3 split, with Justice Jackson authoring a lengthy dissent joined by Justices Sotomayor and Kagan.  Here is how this dissent starts:

This Court has long held that the test for evaluating an Eighth Amendment challenge to a prisoner’s conditions of confinement involves determining whether prison officials acted with “deliberate indifference” to a substantial risk to an inmate’s health or safety.  Estelle v. Gamble, 429 U. S. 97, 104 (1976).  With respect to the Eighth Amendment claim at issue in this case, the Court of Appeals for the Seventh Circuit affirmed the grant of summary judgment to prison officials without applying that well-established standard. Given this indisputable legal error, I would grant certiorari and summarily reverse.

According to the dissent, the case involved an "unusually severe" example of solitary confinement for Johnson.  But I am not too surprised from reading the dissent if this may have seemed to other Justices like an error-correction case, especially with the dissent suggesting the case only concerned whether there was "a genuine issue of material fact for the jury, under the facts and circumstances presented here, such that summary judgment was not appropriate."  I certainly would like to see the full Court take up some of the issues surrounding "severe" use of solitary confinement, but I am not sure this Johnson case would have been ideal for addressing important broader issues.

Supreme Court grants cert on federal drug case concerning expert testimony on defendant's knowledge

This morning brings this new Supreme Court order list that finally has something interesting for criminal justice fans.  Actually, there are two matters of interest, a cert grant in a federal drug case and a lengthy dissent from the denial of cert in a state prison conditions case.  In this post I will cover the cert grant and follow up with a separate post on the cert denial.

The cert grant comes in Diaz v. US, and John Elwood here at SCOTUSblog effectively summarized this case last week after it prompted a relist:

Delilah Diaz was stopped returning from Mexico to her home in California.  Officers were suspicious that Diaz’s window made a “crunching” noise when she rolled it down, so they searched the car and found nearly 28 kilograms of methamphetamine — worth almost $400,000 — in the door panels.  Diaz said that she had borrowed the car from her boyfriend and did not know about the drugs.  At her trial, prosecutors called a law-enforcement agent as an expert witness to testify that in most cases, couriers know they are transporting large quantities of drugs across the border and that traffickers rarely risk the potential of large losses on “blind mules” — couriers who are unaware what they’re carrying. Diaz was convicted.

On appeal, Diaz argued that the testimony was inconsistent with Federal Rule of Evidence 704(b), which states that “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged,” which is a question “for the trier of fact alone.” The U.S. Court of Appeals for the 9th Circuit affirmed Diaz’s conviction.  It concluded that Rule 704 only bars expert witnesses from stating an express opinion about whether a particular person knew they were committing a crime, not from stating general opinions about similar defendants and the likelihood of their culpability.

Diaz has now petitioned the Supreme Court for review.  She argues that that the testimony would have been thrown out in the U.S. Court of Appeals for the 5th Circuit, which has held that such testimony is inadmissible.  The 5th Circuit, she notes, includes Texas and, therefore, nearly all of the rest of the southern border, and she argues that the conflict between two border states’ appellate courts must be resolved. The government acknowledges a “disagreement between the Fifth Circuits and other circuits” but it contends that any disagreement “does not warrant this Court’s review.”  The 5th Circuit’s test, the government claims, is heavily “fact dependent.”  The government also argues that any error from admitting the agent’s testimony was harmless because the evidence of guilt in Diaz’s case was strong, because her story was “flimsy”: She didn’t know where her supposed boyfriend lived or his phone number, and although she claimed to dislike driving at night, she arrived at the border at 2 a.m. 

Here is how the petition for cert presents the question in Diaz:

Federal Rule of Evidence 704(b) provides: “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Fed. R. Evid. 704(b).

The question is: In a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — does Rule 704(b) permit a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters?

Former Prez Trump again talking up the death penalty as a way to address drug problems

Back in March 2018, as noted in this post, then Prez Donald Trump started talking up the idea of the death penalty for drug dealers as part of his stump speeches.  Way back then, I noted that constitutional questions about any such law would be sure to reach the Supreme Court and also that, at that time, there had not been any federal execution for well over a decade.  I also noted that the then-GOP-controlled Congress was working on a sentencing reform bill that could have been a vehicle for adding his Trump's capital sentencing idea.  

Fast forward five+ years, and now Prez-candidate Donald Trump is again talking up the idea of the death penalty for drug dealers as part of his stump speeches.   This Hill article, headlined "Trump doubles down on death penalty for drug dealers," explains:

Former President Trump doubled down on calling for the death penalty for drug dealers Saturday. “President Xi in China controls 1.4 billion people, with an iron hand, no drug problems, you know why they have no drug problems?” Trump said at a campaign event in New Hampshire Saturday. “Death penalty for the drug dealers.”

“You want to solve your drug problem, you have to institute a meaningful death penalty for… a drug dealer,” the former president continued.

This isn’t the first time the former president has called for the death penalty for drug dealers.  Back in June, Trump notably advocated for drug dealers getting the death penalty in a Fox News interview, despite the fact it would have applied to Alice Johnson, a woman whose sentence Trump commuted in 2018.

Though I consider Trump's comments to be more political posturing than policy proposal, I am struck by how the legal landscape has changed since I was commenting about these ideas back in March 2018.  With Justices Kennedy and Ginsburg replaced by (Trump-appointees) Justices Kavanaugh and Barrett, the current Supreme Court seems much more likely to uphold broader applications of the federal death penalty.  I make that statement in part because these Justices expressed no concerns about the 13 federal executions that were carried out in the final six months of Trump's presidency.  And, of course, the sentencing reform bill I was talking about in March 2018 became the FIRST STEP Act that was signed into law by Trump toward the very end of that year.  (Might Trump sometime start describing his "Death penalty for the drug dealers" proposal as a second step in sentencing reform?)     

Prior related posts from 2018:

• Prez Trump reportedly "would love to have a law to execute all drug dealers here in America"
• Prez Trump talks up "very strong" criminal penalties "with respect to the pushers and to the drug dealers" 
• Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed? 

Continuing coverage of DOJ efforts to continue prosecuting recipient of commutation by Prez Trump

Back in June of this year, I had the honor of serving as a witness at a congressional hearing to discuss federal clemency.  Specifically, the House Judiciary Subcommittee on Crime and Federal Government Surveillance conducted a hearing titled "The Examination of Clemency at the Department of Justice," and the hearing page noted that one goal of the hearing was to "examine the Department of Justice's unprecedented re-prosecution of Philip Esformes, whose prison sentence was originally commuted by President Donald Trump."   I explained in my written testimony why,  though I was "only somewhat familiar with the intricacies of the Esformes case," I found "deeply troubling any Justice Department efforts to re-prosecute any clemency recipient for conduct related to a clemency grant."

Perhaps unsurprisingly, the Esformes case and related issues continue to garner attention.  Indeed, in recent weeks, I have now seen a number of new press pieces on these matters:

From Mother Jones, "Donald Trump Freed a Convicted Medicare Fraudster. The Justice Department Wants Him Back."

From Salon, "Ex-prosecutor: DOJ targeting freed fraudster a 'reminder of Trump's gross abuse of pardon power'"

From the Washington Post, "Fraudster freed from prison by Trump faces prosecution under Biden"

Looking at these issues beyond the specifics of the Esformes case, there is quite an interesting forward-looking political component to these matters given that former Prez Trump is a leading candidate for President in the 2024 election.  Because the Supreme Court has ruled there are few formal legal limits on the clemency power set forth in the US Constitution, political accountability serves as the only significant functional restraint on this executive power. 

If "the people" were truly troubled by how Trump used his pardon power as president, voters can hold him accountable at the ballot box in the upcoming election.  But I have not yet heard any of former Prez Trump's political rivals directly assailing his past clemency record nor his stated promise to pardon a "large portion" of those convicted of federal offenses for involvement with January 6 riot.  It seems, at least within the GOP primary field, that there is little expectation that Trump's clemency record or promised would be a real political vulnerability. 

Notably, this Fox News piece from June quoted a former staffer for former VP Mike Pence stating that "we have to have a real conversation of what would people actually do with the power of the pardon ... [and] when you look at Donald Trump's record when it came to pardons, it was indefensible."  But VP Pence has already dropped out as a candidate for 2024, and I have yet to see on the political trail any high-profile efforts to have a "real conversation" about federal clemency past, present or future.  I doubt the Esformes case alone will prompt such a political conversation, but I do think possible clemency discussions could still be worth watching in the 12 months ahead.

Texas completes execution for murder committed 33+ years ago after two death sentencings

As reported in this Texas Tribune piece, "Texas executed Brent Brewer, who spent three decades on death row on Thursday evening for the 1990 murder of Robert Laminack. It was the seventh execution of 2023."  Here is more about this execution:

In late appeals, Brewer's lawyers argued that his death should be delayed to consider the issue of unreliable testimony, or what his lawyers called “junk science,” but late Thursday afternoon the U.S. Supreme Court denied that request. Earlier this week, Texas’ highest criminal appeals court declined similar motions to stay Brewer’s execution.

The Texas Board of Pardons and Paroles unanimously rejected Brewer clemency appeal on Tuesday. Brewer’s legal team requested a lesser penalty for him on the grounds that one of the state’s expert witnesses used unreliable methodologies to testify and that a juror says they mistakenly sentenced Brewer to death.

At 6:23 p.m., Brewer was injected with a lethal dose of pentobarbital. He died 15 minutes later. “I would like to tell the family of the victim that I could never figure out the words to fix what I have broken. I just want you to know that this 53-year-old is not the same reckless 19-year-old kid from 1990. I hope you find peace,” Brewer said in a final statement.

Brent Brewer was convicted of killing Laminack, who owned a business in Amarillo, according to court documents. Brewer asked Laminack for a ride to a Salvation Army with his girlfriend Kristie Nystrom. While en route, Brewer stabbed the 66-year-old Laminack and stole $140 in cash.

Brewer was sentenced to death in 1991 for the murder, but in 2007 the U.S. Supreme Court found that his jury was not given sufficient opportunity for the jury to consider a less severe punishment. Two years later, another jury also sentenced Brewer to death.

Michele Douglas was one of the 2009 jurors. After listening to the evidence, Douglas believed that Brewer didn’t intend to kill Laminack, “things simply got out of hand, with a tragic outcome,” she wrote in an Houston Chronicle opinion piece last week, requesting clemency for Brewer. During the trial, Douglas did not want to vote in favor of capital punishment for Laminack’s murder, which she did not think was premeditated. Douglas said she misunderstood the jury instructions. “Believing — incorrectly — that my vote was meaningless, I acquiesced in the majority’s death penalty verdict. I cried when it was read in court. I was haunted afterwards,” Douglas wrote last week.

A death sentence requires a unanimous vote from the jury in Texas. Over the years, jurors in different capital cases across the state have said the instructions are not clear and they would have voted for life sentences without the possibility of parole if they had known that was an option. Lawmakers in the Texas House have passed legislation during several sessions attempting to clarify the instructions but those bills failed to get support from the Senate....

"Thor is not subject to destruction as a direct punishment for Richards’ violation of the ordinance until the express prerequisites have been met"

The title of this post is a sentence from a state appellate court decision handed down earlier this week.  Eugene Volokh, via the Volokh Conspiracy post "Let Us Kill Your Dog or Go to Jail for a Year," gets credit for flagging the remarkable sentence and ruling in State v. Richards, No. 56949-3-II (Wash. Ct. App. Nov. 7, 2023)(available here).  Here are the basic facts and part of the sentencing discussion:

Jennifer Richards’ dog, Thor, twice bit another dog unprovoked.  As a result, Wahkiakum County determined that Thor was a dangerous dog under chapter 16.08 of the Revised Code of Wahkiakum County (RCWC).  One evening, Richards left Thor alone and unsecured on her property.  The county charged Richards with violating RCWC 16.08.050(F), an ordinance that makes it unlawful for a dangerous dog to be outside a proper enclosure unless the dog is muzzled and restrained by a substantial leash or physically restrained by a responsible person.  Neither state statute nor the county code authorizes destruction of the dog without an opportunity to cure a violation like this one.

After a bench trial on stipulated facts, the district court found Richards guilty and imposed the maximum jail time of 364 days.  However, the district court told Richards that it would suspend the sentence if Richards were to turn Thor over to animal control the next day....

At sentencing, the prosecution recommended that the district court impose the maximum sentence of 364 days in jail and a $5,000 fine, to be served until Richards gave Thor to the local animal control authority so he could be “put down.”   Richards asked for any sentence to be stayed pending appeal to the Wahkiakum County Superior Court. 

The district court imposed the maximum jail time of 364 days.  But it told Richards, “You shall not be required to go into custody if you provide written proof that the dog, Thor, has been surrendered . . . by tomorrow at 3:00 p.m.”  The district court added that if Richards were to fail to surrender Thor by that time, she would have to report to jail and remain there until she surrendered him.  Although the district court did not explicitly say Thor would be destroyed upon surrender, it appears that the judge, attorneys, and Richards all understood that Thor would be destroyed...

Richards asked if she could have a week to surrender Thor so that her boyfriend, who was away, would have a chance to say goodbye.  The district court denied her request.  It said, “Ms. Richards, you’ve had since . . . April of 2019 to come into compliance with the dangerous dog registration requirements.”  The district court added, “We are giving you a bit over 24 hours so that you can get your affairs in line, with both your daughter and your pet responsibilities here, and that is how much time the [c]ourt is willing to allow under the circumstances of this case.”... 

Richards argues that the district court could not impose a sentence that forced her to choose between having her dog destroyed and going to jail for 364 days.  She contends that while a district court “has broad discretion to impose sentencing conditions tending to prevent future commission of crimes,” it was unjust to order “the relinquishment of Thor as a condition of” avoiding imprisonment.   And she contends that tying her “personal freedom to the tormenting choice to kill her and her daughter’s dog is beyond cruel and unusual” under the federal and state constitutions.  The state responds that the district court had authority to impose Richards’ sentence under State v. Deskins, 180 Wn.2d 68, 322 P.3d 780 (2014). We conclude that the sentence imposed was outside the scope of the district court’s discretion....

While the crime of dangerous dog at large is a gross misdemeanor, under the plain language of RCW 16.08.100(1) and RCWC 16.08.110, Thor is not subject to destruction as a direct punishment for Richards’ violation of the ordinance until the express prerequisites have been met. The district court acted outside the scope of its discretion by imposing a condition for achieving a suspended sentence that was untethered from these state and county laws.  The district court, therefore, abused its discretion when it imposed Richards’ sentence.

Because there is no evidence in the record that the district court would have imposed the 364-day term of confinement without the condition allowing suspension of a sentence, we reverse and remand for a new sentencing hearing. Given that we remand, we need not reach Richards’ constitutional argument that the punishment was cruel and unusual.

Split Oklahoma Pardon and Parole Board recommends clemency for condemned inmate based on (jury-rejected) self-defense claim

As detailed in this AP piece, the "Oklahoma Pardon and Parole Board narrowly voted Wednesday to recommend sparing the life of a man set to be executed later this month for what he claims were the self-defense killings of two men in Oklahoma City in 2001." Here is more:

The board voted 3-2 to recommend clemency for Phillip Dean Hancock, who has long maintained he shot and killed Robert Jett Jr., 37, and James Lynch, 58, in self-defense after the two men attacked him.  Republican Gov. Kevin Stitt must now decide whether to grant clemency to Hancock, who is scheduled to receive a lethal injection on Nov. 30.

The board’s decision came after it heard from Hancock, 59, his attorneys, lawyers from the state and members of Jett and Lynch’s families.  Two Republican state legislators who say they strongly support the death penalty, Reps. Kevin McDugle and Justin Humphrey, also testified on Hancock’s behalf. “If any one of us were in that same exact situation ... we would have fought for our lives,” said McDugle, R-Broken Arrow.

Hancock’s attorneys claim that Jett and Lynch were members of outlaw motorcycle gangs who lured Hancock, who was unarmed, to Jett’s home and that Jett ordered him to get inside a large cage before swinging a metal bar at him. After Jett and Lynch attacked him, Hancock managed to take Jett’s pistol from him and shoot them both....

But attorneys for the state argued Hancock gave shifting accounts of what exactly happened and that his testimony didn’t align with the physical evidence at the scene.  Assistant Attorney General Joshua Lockett said the jury took all of this into account before rendering its verdict, which has been upheld by numerous state and federal appeals courts. “Hancock’s credibility was absolutely eviscerated at trial because his claims conflicted with the evidence,” Lockett said.

Lockett also said after Hancock shot Jett inside the house, a witness who was at the scene testified Hancock followed Jett into the backyard and heard a wounded Jett say: “I’m going to die.” Hancock responded, “Yes, you are,” before shooting him again, Lockett said. “Chasing someone down, telling them you are about to kill them and then doing it is not self-defense,” Lockett said.

Jett’s brother, Ryan Jett, was among several family members who testified and urged the panel not to recommend clemency.  “I don’t claim that my brother was an angel by any means, but he didn’t deserve to die in the backyard like a dog,” Ryan Jett said.

Hancock also was convicted of first-degree manslaughter in a separate shooting in 1982 in which he also claimed self defense. He served less than three years of a four-year sentence in that case....

Stitt has granted clemency only one time, in 2021, to death row inmate Julius Jones, commuting his sentence to life without parole just hours before Jones was scheduled to receive a lethal injection.  Stitt has denied clemency recommendations from the board in two other cases: Bigler Stouffer and James Coddington, both of whom were later executed.

Some press pieces reviewing SCOTUS argument in Rahimi Second Amendment case

As previewed in this post, the Supreme Court today heard oral argument in US v. Rahimi to consider how its (new originalist) Second Amendment test applies to the federal criminal firearm prohibition of gun possession by persons subject to domestic violence restraining orders, 18 USC § 922(g)(8).  The 90+ minute oral argument (and its transcript) is available at this link.  As highlighted by the press coverage, most SCOTUS watchers expect the Court to uphold the federal law against a Second Amendment challenge:

From CBS News, "Supreme Court wary of striking down 1994 law protecting domestic violence victims in high-stakes gun case"

From Reuters, "US Supreme Court leans toward allowing domestic-violence gun curbs"

From Vox, "The Supreme Court appears poised to rein in its worst decision on guns"

From The Washington Post, "Court seems likely to allow gun bans for those under protective orders"

Upon listening to the oral argument, I share the view that there seems to be a majority of Justices (and perhaps even all the Justices) who are prepared to rework the Bruen originalist approach to the Second Amendment to uphold the federal criminal firearm prohibition in Rahimi.  But I still found the entire oral argument quite interesting, and I was especially struck by the claim by Rahimi's lawyer that there were no complete criminal bans on the possession of guns by certain people until 1968.  If originalism as a mode of constitutional interpretation really cared about history, that would seem to be a quite significant bit of history for resolving this case.  We shall see in a few months if history and originalism really matters in this context.

Intriguing numbers in latest Gallup polling on US views on the death penalty

Gallup yesterday released this report, headlined "New 47% Low Say Death Penalty Is Fairly Applied in U.S.," which discusses the results of its latest polling about capital punishment views in the United States.  Here is some of the descriptions of the results:

For the first time since Gallup started asking about the fairness of the death penalty's application in the U.S. -- a trend that dates back to 2000 -- more Americans say it is applied unfairly (50%) than fairly (47%). This represents a five-point increase in the percentage who think it is applied unfairly since the prior measurement in 2018.

From 2000 through 2015, between 51% and 61% of Americans thought capital punishment was used fairly in the U.S., but since 2016, readings on the measure have averaged 49%. The latest reading is from Gallup’s annual Crime survey, conducted Oct. 2-23.

Solid majorities of Republicans since 2000 have consistently said the death penalty is fairly applied, including 68% currently. Meanwhile, Democrats have been far less likely to say the death penalty is applied fairly, barely reaching the majority level twice -- in 2005 and 2006. The current 28% reading among Democrats is the lowest for the group, while independents’ 46% reading ties their lowest, from 2000.

Gallup first asked Americans whether they supported the death penalty for convicted murderers in 1936 and found 59% favoring it. With the exception of several readings between 1957 and March 1972, including the record-low 42% in 1966, majorities have supported it since then.

Even after the U.S. Supreme Court ruled the death penalty unconstitutional in June 1972, majorities continued to back it, and after it was reinstated in 1976, public support for it grew, eventually peaking at 80% in 1994. At least 60% of U.S. adults favored capital punishment until 2017, when support dipped below that level. The current 53% of Americans who favor the death penalty is the lowest since 1972, though it is not statistically different from 54% and 55% readings over the past three years.

Partisans' views of the death penalty continue to differ sharply, with most Republicans (81%) and a slim majority of independents (51%) favoring it, but most Democrats (65%) opposing it. The 32% of Democrats who currently support capital punishment for murderers is the lowest in Gallup’s trend. Support for the death penalty in 2023 among independents and Democrats falls well below these groups' recent averages of 60% and 48%, respectively, while Republican support is similar to the 79% average.

A separate question gauging Americans’ opinions of how frequently the death penalty is imposed finds that 39% think it is not used often enough and equal 28% shares saying it is used too often and not enough. This general pattern -- whereby a plurality or majority think capital punishment is not used enough, while smaller percentages are divided between thinking it is used about the right amount or too often -- has been the case since the inception of this Gallup trend question.

US Solicitor General supports SCOTUS review and application of Sixth Amendment rights for key issue for applying Armed Career Criminal Act

A helpful reader made sure I saw a notable Supreme Court filing by the United States in response to a cert petition in an Armed Career Criminal Act (ACCA) case. Specifically, in Erlinger v. US, No. 23-370, a case scheduled to be conferenced by SCOTUS this week, the Solicitor General starts the discussion section of this filing in this way:

Petitioner renews his contention (Pet. 14-18) that the Sixth Amendment requires a jury to find (or a defendant to admit) that predicate offenses were committed on different occasions under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v. United States, 595 U.S. 360 (2022), the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context. This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires.

Here is more from the filing:

In Wooden, this Court considered the proper test for determining whether prior convictions were committed on different occasions for purposes of the ACCA.  See 595 U.S. at 364. The government advocated an elements-based approach to determining whether two offenses occurred on different occasions, which it viewed as consistent with judicial determination of a defendant’s ACCA qualification.  See Gov’t Br. at 46, Wooden, supra (No. 20-5279); see also, e.g., Gov’t Br. in Opp. at 5-11, Walker v. United States, 141 S. Ct. 1084 (2021) (No. 205578).  The decision in Wooden, however, rejected the government’s elements-based approach to the different-occasions inquiry. 595 U.S. at 366.

The Court held instead that the inquiry is “holistic” and “multi-factored,” and that “a range of circumstances may be relevant to identifying episodes of criminal activity.” Wooden, 595 U.S. at 365, 369....

In light of the holistic and multi-factored standard adopted in Wooden, the government now acknowledges that the Constitution requires the government to charge and a jury to find beyond a reasonable doubt (or a defendant to admit) that ACCA predicates were committed on occasions different from one another....

It has recently become clear, however, that the courts of appeals will not embrace that analysis without this Court’s intervention. The question presented — which is important to the administration of criminal law — accordingly warrants this Court’s review this Term....

Through both their actions and their words, the courts of appeals have made the need for this Court’s review apparent. The Fourth Circuit’s denial of rehearing en banc — premised on the insufficiency of review by a lower court — means that the underenforcement of defendants’ constitutional rights will persist there.  The Eighth Circuit’s refusal to resolve the Sixth Amendment question, after granting en banc rehearing, suggests that its pre-Wooden precedent is also likely to endure.  And despite more than a year having passed since Wooden, no other circuit has reconsidered its pre-Wooden approach.

Wooden it be nice if SCOTUS would grant cert ASAP in this ACCA case?  Notably, Justice Thomas has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights, so maybe this (little?) ACCA issue could even provide the Court an opportunity to reconsider that (historically suspect) exception altogether.

Just a few of many press pieces previewing SCOTUS argument in Rahimi Second Amendment case

Regular readers know that right after the Supreme Court's big 2022 Second Amendment decision Bruen, I have suggested that a number of broad federal criminal firearm prohibitions are now constitutionally suspect (see, eg, early posts here are here).  After Second Amendment challenges started producing mixed outcomes in lower federal courts, SCOTUS finally selected US v. Rahimi to be the first case to adumbrate how Bruen is to be applied to at least one form of federal firearm possession criminalization.   Oral argument in Rahimi is tomorrow morning (Nov 7), and here is a partial round-up of some argument previews from various press sources:

From the New York Times, "Texas Man at Center of Supreme Court Case Says He No Longer Wants Guns"

From Roll Call, "Supreme Court to hear arguments in case that could limit Congress on gun control"

From SCOTUSblog, "Court to hear major gun-rights dispute over domestic-violence restrictions"

From USA Today, "A blockbuster gun rights case lands at the Supreme Court. Here are three justices to watch."

From the Washington Post, "Supreme Court weighs impact of gun ruling on domestic-abuse protections"

A few prior related posts:

• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• Some early commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
• Some more commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
• Notable defender amicus briefs submitted in support of Second Amendment claims in Rahimi 

"How Victim Impact Statements Promote Justice: Evidence from the Content of Statements Delivered in Larry Nassar's Sentencing"

The title of this post is the title of this notable new paper now available via SSRN and authored by Paul Cassell and Edna Erez. Here is its abstract:

Whether crime victims should present victim impact statements (VISs) at sentencing remains a subject of controversy in the criminal justice literature.  But relatively little is known about the content of VISs and how victims use them.  This article provides a content analysis of the 168 VISs presented in a Michigan court sentencing of Larry Nassar, who pleaded guilty to decades of sexual abuse of young athletes while he was treating them for various sports injuries.  Nassar committed similar crimes against each of his victims, allowing a robust research approach to answer questions about the content, motivations for, and benefits of submitting VISs. Specifically, it is possible to explore the question of whether (roughly) the same crimes produce (roughly) the same VISs.  The VISs reveal the victims’/survivors’ motive for presenting VISs, their manner of presenting the impact of sexual abuse, their interactions with the sentencing judge and the defendant, and other features of the VISs.  Analyzing the VISs’ contents confirms many of the arguments supporting using VISs at sentencing and challenges some lingering objections to them. The findings support the desirability of VISs for informational, therapeutic, and educational purposes in criminal sentencings.

Were lots of new PRISMs filled in federal court last week as the new § 1B1.13 guideline became law?

The question in the title of this post is mostly designed to try to embrace a new term, PRISM, to refer to federal motions that are typically (and inaptly) called "compassionate release" motions.  Credit goes entirely to Doug Passon, who coins the term in the first part of this latest episode of his Set for Sentencing podcast.  Her explains that PRISM stands for "Prisoner Reduction In Sentence Motion."

Notably, federal law does not anywhere speak of "compassionate release" or making a motion for compassionate release.  Rather, 18 USC § 3582(c)(1)(A) describes the circumstances under which a prisoner can request a judge to "reduce the term of imprisonment."  That statutory section sets forth criteria that are about a lot more than just "compassion," and the US Sentencing Commission's key (and newly amended) guideline, titled "§1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A)", also addresses many topics that are not simply about "compassion."  Consequently, I see the term "compassionate release" motion to be an inaccurate term, whereas PRISM is an accurate and memorable acronym for the actual filings that prisoners can now bring directly to courts under the FIRST STEP Act.

Sadly, I fear that a long history of use of the term "compassionate release" in this context might mean that PRISM is not likely going to happen (like fetch, I fear).  But if PRISM has any hope to become a new moniker, now would seem to be the right time in light of the US Sentencing Commission's amended guideline officially becoming law on November 1.  As of that day last week, a lot more prisoners, I suspect, had a lot more opportunities to seek a sentence reduction.  I am not sure if anyone is keeping track of new PRISM filings, but I am sure this new guideline story will be worth watching closely under any name.

"Justice by Algorithm: The Limits of AI in Criminal Sentencing"

The title of this post is the title of this new article authored by Isaac Taylor just published online for the journal Criminal Justice Ethics. Here is its abstract:

Criminal justice systems have traditionally relied heavily on human decision-making, but new technologies are increasingly supplementing the human role in this sector.  This paper considers what general limits need to be placed on the use of algorithms in sentencing decisions.  It argues that, even once we can build algorithms that equal human decision-making capacities, strict constraints need to be placed on how they are designed and developed.  The act of condemnation is a valuable element of criminal sentencing, and using algorithms in sentencing — even in an advisory role  — threatens to undermine this value.  The paper argues that a principle of “meaningful public control” should be met in all sentencing decisions if they are to retain their condemnatory status.  This principle requires that agents who have standing to act on behalf of the wider political community retain moral responsibility for all sentencing decisions.  While this principle does not rule out the use of algorithms, it does require limits on how they are constructed.

Could Professor John Pfaff help make criminal justice blogging cool again?

The question in the title of this post reflects my (slightly tongue-in-cheek) excitement from seeing that CrimLaw Prof John Pfaff has started this new blog titled "Prisons, Prosecutors, and the Politics of Punishment."  Professor Pfaff, who I consider a friend and whose terrific (often empirical-minded) work is always a must-read, was one of a number of astute law professors who used Twitter creatively and extraordinarily effectively to develop and promulgate ideas.  But now, as he explains in this "Welcome" post, it seems that the decline of Twitter has led him to a new (albeit now old) forum:

I realize that 2023 may be a little late to decide to start blogging, but I am also suddenly appreciating the extent to which I used to use the late, lamented, and now lamentable Twitter to work out new ideas, and to try to share new empirical findings quickly and in an aggressively non-academic way.   With the collapse of Twitter, and feeling some FOMO from watching everyone launch Substacks, I figured it was probably time.

As this intro notes, "substacking" seems to have become the new form of blogging; indeed, I suspect I would be inclined to go the substack route if I had not been in the habit of blogging for nearly two decades(!).  But I am quite pleased to see Professor Pfaff doing something he calls blogging, and here are some of his early substantive posts:

Millions of Uncounted People in Prison (Sort Of)

Mass Shooters, Mental Illness, and a Critical Statistical Mistake

Reform Prosecutors: The Winners and the Losers

I have already updated my blogroll to include "Prisons, Prosecutors, and the Politics of Punishment," and I am looking forward to seeing what Prof. Pfaff has to see in this new (albeit now old) forum.

Prohibiting Punishment of Acquitted Conduct Act receives unanimous bipartisan support in US House Judiciary Committee

I noted in this post a few days ago that the US House of Representative Committee on the Judiciary on November 2 had a markup scheduled on a set of bills including the Prohibiting Punishment of Acquitted Conduct Act of 2023 (HR 5430).   I predicted that HR 5430 bill would move forward, but I was still pleased to see this press release from a bill sponsor about what transpired:

Congressman Steve Cohen (TN-9) today led the Prohibiting Punishment of Acquitted Conduct Act through the Judiciary Committee.  His bipartisan measure was approved 23 to 0.  In September, Congressman Cohen introduced the bipartisan, bicameral measure with Representative Kelly Armstrong and Senators Dick Durbin and Chuck Grassley. This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  It will now advance to the full House of Representatives for a floor vote.

During today’s markup of the bill, Congressman Cohen said in part:  “I would like to emphasize that Kelly Armstrong (R-N.D.) was a strong supporter and an excellent cosponsor and I appreciate him and Senators (Dick) Durbin and (Chuck) Grassley on the Senate side as sponsors. Just about every Supreme Court Justice who’s been around lately – John Paul Stevens, Anthony Kennedy, and Antonin Scalia…Ruth Bader Ginsberg, Clarence Thomas, going down to (Neil) Gorsuch and (Brett) Kavanaugh have all said this needs to be changed.  So with that I would ask that we move forward and arrive at justice.  People should be convicted of proven crimes and sentenced for those crimes. That’s why we need this bill – to make sure that people are only sentenced for the crimes they were convicted of.”

So now we know that there is a least one issue that can garner bipartisan and even unanimous support in the US Congress, namely a statutory reform to prohibiting federal punishment based on acquitted conduct.  This notable vote committee certainly does not ensure Congress will get this bill to the desk of the President, but it should serve as a strong message to the US Sentencing Commission that it should have bipartisan support for any acquitted conduct reforms it might be considering during its current amendment cycle.

You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts?

This CNBC article reports on the high-profile federal jury convictions handed down this evening.  Here are the highlights with an eye on sentencing prospects:

A jury has found Sam Bankman-Fried guilty of all seven criminal counts against him. The FTX founder faces a maximum sentence of 115 years in prison.

Bankman-Fried, the 31-year old son of two Stanford legal scholars and graduate of Massachusetts Institute of Technology, was convicted of wire fraud and conspiracy to commit wire fraud against FTX customers and against Alameda Research lenders, conspiracy to commit securities fraud and conspiracy to commit commodities fraud against FTX investors, and conspiracy to commit money laundering.

He had pleaded not guilty to the charges, which were all tied to the collapse late last year of FTX and sister hedge fund Alameda. “Sam Bankman-Fried perpetrated one of the biggest financial frauds in American history,” Damian Williams, U.S. attorney for the Southern District of New York, said in a briefing after the verdicts were read. “The cryptocurrency industry might be new. The players like Sam Bankman-Fried, Fried might be new. But this kind of fraud, this kind of corruption, is as old as time and we have no patience for it.”

The trial, which began in early October, pitted the testimony of Bankman-Fried’s former close friends and top lieutenants against the sworn statements of their former boss and ex-roommate. The jury returned a swift verdict after receiving the case at around 3:15 p.m. on Thursday....

Judge Kaplan thanked the jurors for their service, and they were escorted out. Kaplan then asked about the second trial Bankman-Fried is facing on March 11. The government has until Feb. 1 to to let the court know if it it plans to still proceed. The sentencing date is March 28 at 9:30 a.m....

The monthlong trial was highlighted by testimony from the government’s key witnesses, including Caroline Ellison, Bankman-Fried’s ex-girlfriend and the former head of Alameda, and FTX co-founder Gary Wang, who was Bankman-Fried’s childhood friend from math camp. Both pleaded guilty in December to multiple charges and cooperated as witnesses for the prosecution. Most of the defense’s case was built on the testimony of Bankman-Fried himself, who told the court that he didn’t commit fraud or steal customer money, but just made some business mistakes.

The central question for jurors to consider was whether Bankman-Fried acted with criminal intent in taking customer funds from FTX and using that money to pay for real estate, venture investments, corporate sponsorships, political donations and to cover losses at Alameda after crypto prices plunged last year....

Bankman-Fried now awaits sentencing. His case has been compared to that of Elizabeth Holmes, the founder of medical device company Theranos, which ceased operations in 2018. Holmes, 39, was convicted in early 2022 on four counts of defrauding investors in Theranos after testifying in her own defense. She was sentenced to more than 11 years in prison, and began serving her punishment in May at a minimum-security facility in Bryan, Texas.

For sentencing purposes, I do not think Elizabeth Holmes is a perfect comparison for Sam Bankman-Fried.  But I expect SBF's lawyers are going to be eager to argue that Holmes and her sentence provide a proper benchmark for SBF's sentencing.  But I also expect the guideline range calculated for SBF to be higher than Holmes' calculated guideline range; in fact, it seem likely that the guidelines will recommend a life sentence for SBF.

But, of course, because the guidelines are only advisory, Judge Lewis Kaplan will have to assess all the 3553(a) factors to decide what sentence for SBF is "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress in 3553(a)(2). Though sentencing is not scheduled to take place for nearly five months, it is surely not too early for folks to use the comments to share their own views on a "sufficient, but not greater than necessary," sentence for SBF.

Notable coverage of Third Circuit's latest jolt to loss calculation in federal fraud guidelines

In this post more than 30 months ago, I asked "Did a Sixth Circuit panel largely decimate the federal sentencing fraud guidelines (and perhaps many others)?"  That post was focused on US v. Riccardi, No. 19-4232 (6th Cir. Mar. 3, 2021) (available here), where the panel ruled that a quirky part of the commentary to the 2B1.1 fraud guideline improperly expanded the guideline term "loss."  I thought that ruling could further undermine the key 2B1.1 guideline commentary stating that "loss is the greater of actual loss or intended loss."  Notably, last year in US v. Banks, No. 19-3812 (3d Cir. Nov. 30, 2022) (available here), a Third Circuit penal embraced that thinking when holding that "the loss enhancement in the Guideline’s application notes impermissibly expands the word 'loss' to include both intended loss and actual loss." 

Savvy administrative law folks (or regular readers) likely know that this jurisprudence flows from the Supreme Court's work in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which recast  "the deference [courts] give to agencies ... in construing agency regulations."  (Of course, the Kisor case had nothing to do with the federal sentencing guidelines, but lower courts have since grappled with whether and when Kisor means that the commentary to the guidelines no longer should always be followed.)  And savvy white-collar practitioners  likely know that this jurisprudence can be an especially big deal in high-profile fraud cases.  And this week, Bloomberg News has this lengthy discussion of some of the fall-out of the Banks ruling under the headline "Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling."  I recommend the piece in full, and here are extended excerpts:

In the case of [Gary] Frank, who pleaded guilty in 2019 to inflating the revenue of his legal benefits company to borrow millions, there was a big difference between the amount he intended to cheat his victims (as much as $150 million) and their actual losses (as much as $34 million).  And that just may help him get out of prison early.

The fallout started last year after the 3rd Circuit US Court of Appeals ruled that Frederick Banks, a Pennsylvania man convicted of attempting to dupe Gain Capital Group LLC out of $246,000, should be resentenced.  The online trading company, the court found, suffered no actual losses given that it never sent him the funds.  The Banks decision is significant since the gap between actual and intended losses in fraud cases can be vast, greatly skewing the amount of prison time from barely any to more than a decade.

“The No. 1 variable that moves the needle in sentencings for white collar cases is the loss amount,” said Andrew Boutros, a white-collar defense attorney at Dechert. “The loss amount has a huge impact on the ultimate advisory sentencing range that the court calculates.”...

The ruling has sparked a debate on how much deference to give the US Sentencing Commission’s interpretation of its own guidelines, which includes a scale for federal judges across the country to follow for ratcheting up prison time based on losses to victims.  The commission suggests in its commentary using the greater of actual or intended loss when determining sentences.  But the appellate panel in Banks used a Supreme Court decision to challenge the commission’s authority to interpret its own rules in finding that only actual loss should be used to calculate sentences.

Prosecutors have tried to persuade judges that the sentencing commission’s interpretation deserves deference.  The Justice Department has warned that relying only on actual losses would let certain defendants off the hook who are unsuccessful in pulling off a scheme.  Defense attorneys for years have argued that relying on intended loss under the commission’s guidelines leads to overly harsh sentences that don’t reflect the criminal conduct. “We are getting these absurd results where nonviolent criminals are getting extraordinary sentences,” said defense attorney Tama Kudman.

Kudman successfully used the Banks ruling in Florida to persuade a judge that actual losses should only be taken into account when sentencing a lab owner found guilty of billing Medicare for unnecessary genetic tests.  Minal Patel billed Medicare for more than $463 million in tests but the actual loss to taxpayers was $187 million.

The Banks decision could significantly reduce prison time for defendants in securities and commodities cases since it is difficult to figure out actual losses in those situations.  “Prosecutors often rely upon intended loss as a proxy for actual loss in securities and commodities fraud cases,” wrote Paul Hastings attorneys in a client alert.  “This practice has allowed the government to calculate large loss amounts and seek high guidelines sentences where actual loss is incalculable or impractical to determine.”  It could also impact charging decisions, especially in 3rd Circuit territory, where prosecutors may think twice about devoting resources to cases with small actual losses.

In the year since the Banks ruling, defense attorneys have had limited success using the decision outside of the 3rd Circuit, which covers Pennsylvania, New Jersey, Delaware and the Virgin Islands.  In December, a federal judge in Michigan sided with the Banks ruling in a case involving a defendant who pleaded guilty to fraud against JPMorgan.  The judge reasoned that she didn’t have to defer to the sentencing commission because the definition of loss isn’t “genuinely ambiguous.”

In June, a North Carolina federal judge also agreed with the 3rd Circuit decision in supporting a lower sentencing guideline for a man who pleaded guilty to bank fraud against several financial giants, including JPMorgan, Wells Fargo and crypto exchange Coinbase Global Inc.  But the following month, a 6th Circuit panel shot down an attempt by a chemical engineer to rely on the ruling after she was convicted of stealing trade secrets from her former employers.  The panel criticized the 3rd Circuit for imposing a “one-size-fits-all definition” for loss that could “lead to vastly different sentences for similarly culpable defendants.”

In other cases, the 1st and 4th Circuits declined to take a position. “This is a new and fast-developing area of the law, and as of now, we do not have the kind of robust consensus in other circuits,” the 4th Circuit panel wrote.  That’s why some legal experts believe the Supreme Court will need to decide even though it has so far refused to take up the issue.

Judges, prosecutors and defendants have all urged the sentencing commission to make changes.  One defendant who is serving 95 years in prison for a cyber financial fraud scheme argued in an email to the commission to get rid of the intended loss interpretation since “it’s not based on fact, but rather off of subjective interpretation or ‘guess work.’”

"Does type of counsel matter? A Comparison of outcomes in cases involving retained- and assigned counsel"

The title of this post is the title of this new empirical article just published in the Journal of Crime and Justice and authored by Ronald Burns, Brie Diamond and Kendra N. Bowen.  Here is its abstract:

Existing research yields inconsistent results with regard to differences among type of counsel in criminal cases.  Studies in the area generally compare the effectiveness of indigent versus retained counsel, and public defenders versus assigned counsel, and focus on broad categories of crime.  The present work expands this literature through comparing case outcomes between assigned and retained counsel in the processing of criminal trespassing cases.  It also contributes through measuring type of counsel in relation to the imposition of charge enhancements, a variable largely absent from the research literature.  Results suggest that type of counsel does impact case outcomes, as defendants with assigned counsel were more likely to have a charge enhancement, be sentenced to jail, and spend more time in jail.  Focusing on less serious offenses provides a more reflective account of what often occurs in court given that most crimes are less serious in nature.