Sentencing Law and Policy

AG Garland rescinds federal execution protocol citing "risk of pain and suffering" in using pentobarbital for lethal injection

Via this new substack post by Chris Geidner, I see that Attorney General Merrick Garland sent this letter to the Director of the Bureau of Prisons to order rescinding the the federal execution protocol "which provides for lethal injection of pentobarbital."  The two-page letter provides this accounting for the action:

The Office of Legal Policy has coordinated review of the [protocol] and the Department's regulations governing the manner of execution, including, as directed by the 2021 Memorandum, in "consultation with all relevant Department components, including the Bureau ofJustice Statistics, Bureau of Prisons, Drug Enforcement Administration, Civil Division, Civil Rights Division, Criminal Division, National Institute ofJustice, and U.S. Marshals Service; other state and federal agencies, including the Department of Health and Human Services; medical experts; experienced capital counsel; and other relevant stakeholders, including members ofthe public, as appropriate."   Having assessed the risk of pain and suffering associated with the use ofpentobarbital, the review concluded that there is significant uncertainty about whether the use ofpentobarbital as a single-drug lethal injection for execution treats individuals humanely and avoids unnecessary pain and suffering.

Because it cannot be said with reasonable confidence that the current execution protocol "not only afford[ s] the rights guaranteed by the Constitution and laws ofthe United States" but "also treat[s] individuals [being executed] fairly and humanely," [2021 AG Memo on Death Penalty] at 1, that protocol should be rescinded, and not reinstated unless and until that uncertainty is resolved. In the face of such uncertainty, the Department should err on the side oftreating individuals humanely and avoiding unnecessary pain and suffering.

The 25-page report of the Office of Legal Policy serving as the foundation of this action is available at this link.

Of course, the incoming Trump Administration can and likely will reconsider these actions and institute a new (or renewed) execution protocol.  But, Prez Biden's commutation of 90%+ of federal death row left only three persons currently subject to execution and none of them has exhausted all of their appeals.  Thus, AG Garland's action may not have any immediate impact on execution possibilities, though it means some more work for any future adminstration seeking to complete any executions.

Also, because there is always considerable state-level litigation over execution protocols, this AG letter and the OLP report could prove of some consequence in some state courts.  It certainly will be cited by death row defendants seeking to preclude use of of pentobarbital in executions.

AG nominee Pam Bondi talks up First Step Act and criminal justice reform

I only had a chance to listen to a small portion of the hearings today in the Senate Judiciary Committee involving Prez-Elect Trump's nominee for Attorney General of the United States, Pam Bondi.  What I did hear leads me to expect her to be confirmed, and I was especially intrigued to see that her short opening statement to the Committee included these two paragraphs on criminal justice reform issues:

Making America safe again also requires reducing recidivism.  We must fix the Bureau of Prisons and follow through on the promise of the First Step Act by building new halfway houses.  The Bureau has suffered from years of mismanagement, lack of funding, and low morale.  Federal corrections officers serve in challenging conditions on minimal pay and need more support.  Our prison system can and will do better.

President Trump’s leadership on criminal justice reform demonstrates what is possible when a President is unafraid to do things that have been deemed “too difficult” and to reach across the aisle to bring about real solutions.  Like the President, I believe we are on the “cusp of a New Golden age” where the Department of Justice can and will do better.

For a host of reasons, effective BOP reform and "follow[ing] through on the promise of the First Step Act" is a very big job.  But it is hearting to hear the likley next Attorney General pledge that our "prison system can and will do better."  More generally, Bondi's praise for both the First Step Act and "President Trump’s leadership on criminal justice reform" makes me hopeful that the incoming administration may be not just open to, but also supportive of, further reforms that build and improve on the criminal justice work done during the first Trump Administration.

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

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

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

Interesting accounting of "6 areas of uncertainty" regarding Jan 6 clemency plans

The day after Donald Trump was elected to serve a second term in the Oval Office, I asked in this post "How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?".  Though a number of press outlets have started focusing on this notable clemency question (round up here, this new Politico piece is among the most interesting of the genre.  The extended piece is headlined "Puzzling over Jan. 6 pardons: 6 areas of uncertainty in Trump’s clemency plans," and here are excepts from the start of the piece and its headings:

Since winning the election, President-elect Donald Trump has avoided providing specifics about his promise to pardon Jan. 6 defendants. And it’s led to rampant speculation — especially among the 1,600 defendants who have been prosecuted for their role in the Capitol riot — about just how far he’s willing to go.

Vice President-elect JD Vance supercharged their angst Sunday when he said violent Jan. 6 defendants “obviously” shouldn’t be pardoned, but quickly elaborated after Trump’s MAGA allies lit him up. Vance then laid out some additional clemency criteria that are tricky to parse.

A week before Trump takes power, here are six big questions about Trump’s clemency plan:

Will Trump blanket pardon all Jan. 6 misdemeanor defendants?...

Will Trump pardon people who committed assault? What about other felonies?...

What Does Vance mean by a “garbage trial?”...

What happens to leaders of the Proud Boys and Oath Keepers?...

How will Trump’s DOJ handle ongoing Jan. 6 cases?...

What does Pam Bondi tell the Senate?

I think these good questions are only part of what is likley to be a long-running story regarding how Donald Trump uses his clemency powers in his second time in the oval office.  And, as is always true when it comes to the use of this authority, a whole lot of lives hang in the balance. 

A few of many recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants 
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Prez-Elect Trump reiterates pledge to grant Jan 6 pardons on "first day" in office
• Lots of January 6th discussions of possible Trump pardons of Jan 6 defendants 
• Recording of DEPC panel on "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

US Sentencing Commission notices public meeting for possible additional proposed guideline amendments (and releases data on past ones)

When the US Sentencing Commission's promulgated a set of proposed guideline amendments last month (details here), it also indicated in a press release that more proposed amendments might be in the works.  Specifically, here were the words then of USSC Chair Judge Carlton Reeves:  “Over the next month, the Commission will consider whether to publish additional proposals that reflect the public comment, stakeholder input, and feedback from judges that we have received over the last year -- including at the roundtables we have held in recent months on drug sentencing and supervised release.”

Sure enough, today the USSC sent out a formal "Notice of Public Meeting," which provides in pertent parts as follows:

The Commission scheduled a public meeting for January 24, 2025 at 1:00 pm (EST). The meeting will be streamed live. The agenda is as follows:

• Vote to Adopt December 2024 Meeting Minutes
• Report from the Chair
• Possible Vote to Publish Additional Proposed Guideline Amendments and Issues for Comment

The USSC also noted in its email about the public meeting that it has recently released two separate data briefings relating to: (1) the career offender guideline at §4B1.1 and (2) the treatment of machinegun conversion devices under §2K2.1.  As the USSC explained via email, this "information presented by Commission staff is intended to facilitate public discussion of the amendments proposed by the Commission in December."

Justices in their usual (but still somewhat unpredicatable) roles as they consider 924(c) resentencing in Hewitt

The Supreme Court heard oral argument in Hewitt (et al.) v. U.S. to consider this formal question: "Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the FSA’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the FSA’s enactment."  In this substack essay last week, titled "Liberty’s absence in jurisprudence and practice regarding extreme prison sentences," I lamented that the briefing in this Hewitt case was "devoted to parsing the words 'sentence' and 'imposed' and debating statutory syntax rather than engag[ing] with liberty as a fundamental value or with limits on the state’s power to punish extremely."  Perhaps unsurpringly, as folks can hear/read here from the Supreme Court website, this morning's oral argument reflected the same deficiencies.

This Bloomberg Law piece reporting on the argument highlights that the Court did not readily signal where it might be headed.  Here are excerpts:

US Supreme Court justices struggled with how broadly to read a federal law meant to reduce harsh criminal sentences, with one saying the case was “really close.”

The question at the heart of arguments on Monday was whether the First Step Act’s reduced mandatory minimums apply to defendants originally sentenced before the law was enacted but later had the punishment vacated, or only to those who’ve never been sentenced. The answer turns on the meaning of “imposed,” as the law applies retroactively to those who committed a crime before it came into force in 2018 but who haven’t yet been sentenced.

Justice Sonia Sotomayor said the term “imposed” is ambiguous because it can mean either a “historical act,” meaning whether a sentence was ever imposed, or a “continuing application,” meaning that a valid sentence is in place. Because of that, the court should consider the context in which the law was passed, Sotomayor said. She said it was clearly meant to help defendants who faced what Congress saw as unfair sentencing.

But Justice Brett Kavanaugh said context doesn’t resolve the case. Congress wanted to apply the reduced sentences retroactively, but there was a limit because lawmakers didn’t open it up to everyone, Kavanaugh said. “I think this is a really close case,” he said.

The case is likely to affect a small number of defendants but it will be critical for those to whom it applies.

Based on a (too) quick read of the transcript, I sense the defendants can reasonably expect to get four votes (Justices Sotomayor, Kagan, Gorsuch and Jackson), but it is not clear that any other Justice will provide the key fifth vote.  If the rule of lenity had any real force in statutory interpretation, this ought to be a fairly easy case.  But. notably, it was barely mentioned in the oral argument.  It was mentioned that perhaps only a few dozen defendants will be impacted by this case; there is a lot of prison time at stake for a few, but this ruling seems unlikley to impact any other no matter who prevails.

"Booker at 20": reflections on the impact and import of plea agreements

As set out in this prior post, I have started a series of posts here on the topic of "Booker at 20," partially in conjunction with a forthcoming issue of the Federal Sentencing Reporter on the topic.  A few FSR authors for that issue have allowed me to post here some modified excerpts from their forthcoming articles, and today's entry (on Booker's actual 20th anniversary) comes from Sam Merchant: 

For understandable reasons, Booker was expected to expand judicial discretion at sentencing.  But around 98% of federal criminal cases are resolved through guilty pleas, and around 71% of those involve written plea agreements. These agreements often dictate sentencing outcomes, raising questions about the true extent of judicial discretion.

Despite their ubiquity, most plea agreements remain opaque to outside observers.  The U.S. Sentencing Commission collects data on the reasons that judges deviate from guideline ranges but it does not systematically collect that information for sentences within guideline ranges (where plea agreements frequently play a decisive role).  As long as the parties can confabulate a sentence that fits within a guideline range, the true reasons for the sentence may be forever obscured. 

This is a potential problem, particularly in cases I’ve studied involving “fictional pleas” or “hidden departures,” where the plea and guideline range don’t match the real offense conduct.  I and others have identified this in around a third of federal cases (conservatively).  While I’m not necessarily against the practice, it does undermine the stated goals of uniformity and transparency.  (Of course, these might not actually be desirable goals, but they are included in Congress’s stated goals.)  And when parties withhold information from judges, it directly challenges the traditional story about the extent of post-Booker judicial discretion.  The system we’ve created gives sentences the appearance of being guided by Article I and Article III, when in reality, the influence of Article II is underappreciated.  Post-Booker, there is a sense that “sentencing is for judges, so if a judge imposed the sentence, I’m sure everything is fine.”

There is probably little interest in changing the framework of fictions we’ve created.  Members of Congress can continue appearing “tough on crime,” knowing that their laws will be (inconsistently) circumvented.  Prosecutors can threaten astronomical but ultimately fictional criminal exposure to induce pleas.  Defendants plead guilty for less than that fictional exposure, often for conduct they didn’t actually commit.  Busy judges accept those pleas.  The significant investment required to reform the system and hold more trials is almost certainly politically untenable.  So the system prioritizes efficiency over truth and fairness.  The system churns on — efficient, opaque, and quietly complicit in its own contradictions, perpetuating a framework of fictions that seems to primarily serve the designers and operators.

Brown paper bags come to mind. In the 1950s and 1960s, most American city councils passed laws that prohibited the consumption of alcohol in public places.  Police lacked the capacity to prosecute every offender, but ignoring obvious violations would foster disrespect for the law.  In an act of “ghetto diplomacy,” consumers began putting paper bags over their beverages.  Police then had the discretion to look the other way and focus resources on more serious crimes. Passersby had plausible deniability — maybe there isn’t really an alcoholic beverage inside that bag? City leaders could take the win for cleaning up the streets, at least well enough for government work.

Just as the participants agreed and society accepted the bag as a willful delusion, the criminal system gives us plausible deniability about how “justice” is administered.  The participants do what they can to keep cases moving, and enough members of the public don’t want to know or simply don’t care what’s inside. Perhaps it’s not justice the public seeks, but the illusion of it, wrapped in systems that give us permission to look the other way.

Prior post in this series:

• "Booker at 20": introducing a coming series of posts (and more)
• "Booker at 20": has much really changed in federal sentencing? 

"New Acquitted Conduct Guideline: An Analysis"

The title of this post is the title of this recent New York Law Journal essay by Paul Shechtman. The piece merits a full read, as it highlights recent developments on acquitted conduct sentencing and various aspects of the new guideline.  The closing paragraphs highlight some themes:

May a judge consider acquitted conduct in deciding where within the guideline range a defendant should be sentenced? May she vary upward from the guideline range based on acquitted conduct?  In neither instance is the judge including acquitted conduct in calculating relevant conduct, but an affirmative answer to these questions would end run the amendment.

Notably, along with the amendment to §1B1.3, the Commission amended §6A1.3 to reiterate that “nothing in the Guidelines Manual abrogates a court’s authority under 18 U.S.C. §3661.”  That section states that “[n]o limitation may be placed on information…a court…may receive and consider for the purpose of imposing an appropriate sentence.”

If ever a Sentencing Guideline amendment is well intentioned but perplexing, the acquitted conduct amendment may be it.  Its saving grace may be that in fiscal year 2022, of the 62,529 sentenced individuals, 1,613 were sentenced after trial (2.5%) and, of those, only 286 (.04% of all sentenced defendants) were acquitted of one or more offense or found guilty of only a lesser-included offense.  Thus, the potential issues are nettlesome, but won’t arise often.

"Booker at 20": has much really changed in federal sentencing?

As noted in this prior post, I have started a series of posts here on the topic of "Booker at 20," partially in conjunction with a forthcoming issue of the Federal Sentencing Reporter on the topic.  Helpfully, a few FSR authors for that issue have allowed me to post here some modified excerpts from their forthcoming articles, starting with Jonathan Wroblewski.  Here are some excerpts from his article:

Jury Trials:  The foundation of the decision was that juries were being wrongfully cut out of the process.  The data shows that juries are playing a lesser role now than they were pre-Booker.  In Fiscal Year 2003, the last full fiscal year before the Supreme Court's decision in Blakely v. Washington and the year arguably best for comparison, 95.7% of sentenced federal defendants resolved their case through a guilty plea (there were 2,996 trials reported that year by the Commission).  In 2023, 97.2% of sentenced federal defendants resolved their cases through a guilty plea (there were 1,824 trials reported that year, a 39% reduction from 2003).   So fewer trials post-Booker.  

Sentence length:  At least one measure of severity suggests that it has increased post-Booker.  In FY 2003, the Commission reported that the average federal sentence for all cases was 47.9 months imprisonment.  In FY 2023, the Commission reported that it was 52 months imprisonment.   Since Booker, there have certainly been changes in the kinds of cases prosecuted in the federal system, changes that impact the average sentence imposed.  In Fiscal Year 2003, the Commission reported that 69,680 were sentenced in federal courts for felonies and Class A misdemeanors.   Of those, 38.1% were sentenced for drug offenses, 21.6% for immigration offenses, and 17% for fraud and theft offenses.   In Fiscal Year 2023, 64,124 were sentenced in federal courts for felonies and Class A misdemeanors.   Of those, 29.9% were sentenced for drug offenses, 30.0% for immigration offenses, and 8.1% for fraud and theft offenses. Comparing average sentences by certain crime types, in FY 2003, the average sentence for drug trafficking offenders was 76.9 months imprisonment.  In FY 2023, it was 82 months.  In FY 2003, the average sentence for fraud offenders was 14.4 months.   In 2023, it was 22 months. 

Disparity:  In 2010, the Department of Justice's annual report to the Commission noted that post-Booker, “federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes.  On the one hand, there is the federal sentencing regime that remains closely tied to the sentencing guidelines. . . .  On the other hand, there is a second regime that has largely lost its moorings to the sentencing guidelines.”   The available data suggests this is even more so today.  The Commission itself has studied inter- and intra-district sentencing disparities, and its findings are unambiguous.  On inter-district disparities, the Commission said that “[v]ariations in sentencing practices across districts increased in the wake of the Supreme Court's 2005 decision in Booker.  These inter-district sentencing differences have persisted in the 13 years after Booker and six years after the Commission's 2012 analysis.”   

On intra-district disparities, the Commission said, its “current analysis measured judges’ average percent differences from the guideline minimums in their cases in relation to their city’s average during three periods between 2005 and 2017.  It demonstrated a clear increase in the extent of differences in sentencing practices in a majority of the cities studied following the Supreme Court’s 2005 decision in Booker and continuing after the Court's 2007 decisions in Gall and Kimbrough.” 

A glance at the percentage of cases sentenced within the guidelines by district further shows the increased post-Booker disparities.  For example, in FY 2023, only 42.4% of cases were sentenced within the guideline range,  while in FY 2003, 69.4% were sentenced within the range.   This is not surprising, given the post-Booker requirement that offender characteristics be considered in every case and the lack of guideline reform implementing it.  But the change in non-guideline sentences has not been consistent across districts or across judges, and the numbers suggest growing disparities.  

For example, the highest rate of within-guideline sentences in FY 2003 was in the First Circuit, where 77.3% of cases were sentenced within the range.  The lowest rate that year was in the Ninth Circuit, where 59.6% of cases were sentenced within the range.   This resulted in a difference between the highest and the lowest rates of 17.7 percentage points.  In FY 2023, by contrast, the highest rate of within-guideline sentences was in the Fifth Circuit, where 63.9% of cases were sentenced within the range, while the lowest rate that year was in the Ninth Circuit, where 22.5% of cases were sentenced within the range.  This was a difference of 41.4 percentage points.  Examination of other circuit and district data similarly show expanding disparities.

The thesis of the article is that, contrary to what some argued when Booker was decided, Booker was not “the fix.

Prior post in this series:

• "Booker at 20": introducing a coming series of posts (and more)

Voting 5-4, Supreme Court denies Donald Trump's motion to stay his New York state sentencing

Via this order, the Supreme Court this afternoon turned back Prez-Elect Donald Trump's motion to stay his state court sentencing in Trump v. New York.  The Court was divided 5-4, and her is the full order:

The application for stay presented to Justice Sotomayor and by her referred to the Court is denied for, inter alia, the following reasons.  First, the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal.  Second, the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of “unconditional discharge” after a brief virtual hearing.

Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.

"Unlocking State Punishment Clauses"

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

The United States Supreme Court has applied the Eighth Amendment in two ways with respect to criminal sentencing. It uses the “evolving standards of decency” doctrine for capital and juvenile life without parole cases.  And it uses the “gross disproportionality” test for all non-capital cases.  Almost every state has its own punishment clause, an analogue to the Eighth Amendment.  The language in most of these punishment clauses is similar to the Eighth Amendment.  The result is that many states have “lock-stepped” their interpretation of the state constitution with the Supreme Court’s interpretation of the Eighth Amendment.

As scholars and jurists have long noted, lock-stepping state constitutional provisions with federal constitutional provisions constitutes a flawed and problematic interpretive approach.  Lock-stepping substitutes the Supreme Court’s interpretation of the federal constitution for the state court’s reading of its own constitution.  It disregards the will of state citizens in passing their own constitution, contravenes states’ rights, and ignores important differences in text, context, and history of state constitutional provisions.

Some states have taken note and elected to interpret their state constitutions independently of the federal constitution.  Even so, where state supreme courts say that their punishment have separate meanings from the Eighth Amendment, their analysis largely mirrors aspects of one or both of the Court’s two doctrines.  So even states that explicitly do not lock-step with the Eighth Amendment nonetheless engage in a sort of analytical lock-stepping by relying largely on Eighth Amendment doctrines.  The courts engage in such approaches despite a long and well-developed literature criticizing Eighth Amendment doctrines from many different directions.

The goal of this symposium article is to unlock these punishment clauses from Eighth Amendment doctrine.  State punishment clauses have distinct meanings, meanings which may depart far from Eighth Amendment doctrine.  And even if a state court chooses to stay within the confines of the principles of the Eighth Amendment doctrine, the application of these principles can arguably be quite different in the context of a state as opposed to an entire nation.

As such, this Article creates a taxonomy of possible interpretations of state punishment clauses.  Specifically, it explores what the language of “cruel,” “and,” “unusual,” and “punishment” might mean.  This analysis gives rise to a number of doctrinal interpretations state courts might choose to adopt, particularly in light of the textual, contextual, and historical anomalies of their particular state.

Part I of the Article briefly describes the Court’s application of the Eighth Amendment.  Part II provides a brief survey of state punishment clauses.  In Part III, the Article explains why lock-stepping is problematic.  And in Part IV, the article “unlocks” state punishment clauses by providing a taxonomy of possible approaches state courts can adopt in reading and applying their state constitutions.

What kind of Second Amendment case will be next for SCOTUS after Bruen and Rahimi?

Anyone and everyone following Second Amendment litigation since the Supreme Court's landmark Bruen ruling knows that it is not a question of whether, but just a matter of when, the Justices will take up challenges to various federal criminal gun prohibitions to continue adumbrating for lower courts just how they think originalistism is supported to work here.  The Rahimi ruling, perhaps unsurprisingly, only deepened uncertainties (and lower court splits) on various issues, and a number of recent pieces highlighting just some of the Second Amendment jurisprudential messiness has me feeling somewhat more sure another Second Amendment cert grant will be coming soon.  But these articles and other matters also have me feeling somewhat less sure about what particulars issues and cases the Court will decide to take up:  

From Bloomberg Law, "Gun Litigation Will Keep Federal Appeals Courts Busy in 2025"

From the New York Times, "Courts in ‘State of Disarray’ on Law Disarming Felons"

From Reason, "5th Circuit Reaffirms That Prosecuting a Marijuana User for Illegal Gun Possession Was Unconstitutional"

From Stateline, "Judges topple gun restrictions as courts chart an uncertain path forward"

From The Volokh Conspiracy, "Ohio Court Strikes Down Categorical Prohibition on Gun Possession by People Under Indictment"

As some of the above articles highlight, there is a wide array of churning lower-court litigation assailing gun restrictions well beyond federal criminal prohbitions in 18 USC § 922(g), and so it is certainly possible that the Justices might take up disputes over restrictions on types of guns or other regulatory matters before addressing federal possession prohibitions again.  In addition, because the incoming Trump administration could be more supportive of a more expansive view of the Second Amendment, the Supreme Court's approach to 922(g) disputes migth get influence by some new advocacy coming soon from the Justice Department.

Interesting times.

Two federal death row inmates seeking to reject Biden's commutation as they press innocence claims

As reported in this notable new NBC News piece,  "[t]wo prisoners who are among the 37 federal inmates whose death sentences were commuted last month by President Joe Biden — a move that spares them from the death chamber — have taken an unusual stance: They're refusing to sign paperwork accepting his clemency action."  Here is more:

Shannon Agofsky and Len Davis, both inmates at the U.S. Penitentiary in Terre Haute, Indiana, filed emergency motions in federal court in the state's southern district on Dec. 30 seeking an injunction to block having their death sentences commuted to life in prison without parole. The men believe that having their sentences commuted would put them at a legal disadvantage as they seek to appeal their cases based on claims of innocence.....

"To commute his sentence now, while the defendant has active litigation in court, is to strip him of the protection of heightened scrutiny. This constitutes an undue burden, and leaves the defendant in a position of fundamental unfairness, which would decimate his pending appellate procedures,” according to Agofsky's filing.

Davis wrote in his filing that he "has always maintained that having a death sentence would draw attention to the overwhelming misconduct" he alleges against the Justice Department. He also wrote that he "thanks court for its prompt attention to this fast-moving constitutional conundrum. The case law on this issue is quite murky."

But inmates face a daunting challenge in having their death sentences restored, said Dan Kobil, a professor of constitutional law at Capital University Law School in Columbus, Ohio, who has represented defendants in death penalty and clemency cases.  A 1927 U.S. Supreme Court ruling, for example, maintains that a president has the power to grant reprieves and pardons, and "the convict's consent is not required."...

In his filing seeking an injunction for Biden's commutation, Agofsky, 53, said that he is disputing how he was charged with murder in the stomping death and that he is also trying to "establish his innocence in the original case for which he was incarcerated."...  Davis, 60, "has always maintained his innocence and argued that federal court had no jurisdiction to try him for civil rights offenses," his filing says.  Both Davis and Agofsky are asking a judge to appoint a co-counsel in their requests for an injunction of the commutations.

If nothing else, these efforts to refuse a capital commutation seem likely to help ensure these defendants get more attention for their claims of innocence than many others.  And I have often asserted to students in my sentencing classes that convicted murderers claiming to be wrongfully convicted on death row are likely to get more attention for their claims of innocence than convicted murderers given LWOP.  These two defendants certainly seem to agree with this assertion.

Lots of January 6th discussions of possible Trump pardons of Jan 6 defendants

The day after Donald Trump was elected to serve a second term in the Oval Office, I asked in this post "How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?".  Perhaps unsurprisingly, a lot of press outlets are focusing on this notable clemency question on January 6, 2025.  Here is just a partial round-up of new pieces on this front:

From the AP, "Lawmakers brace for Trump’s promised Jan. 6 pardons. Some are urging restraint"

From CBS News, "4 years after Capitol attack, Jan. 6 cases hang in the balance with Trump pardons on the horizon"

From The Guardian, "Trump promised pardons for January 6 rioters in ‘first hour’ of his second term. What might this mean?"

From USA Today, "Will Donald Trump pardon January 6 Capitol rioters? Here's what he has said"

From the Wall Street Journal, "Trump’s Pardon Promise for Jan. 6 Rioters: Does it include the ex-meth trafficker who brought a metal baton and swung it at police?"

From the Washington Post, "The fate of nearly 1,600 Jan. 6 defendants depends on Donald Trump"

With exactly two weeks to go before Inauguration Day, I am wondering if January 20, 2025 might prove historic with two presidents granting clemency on that day.  I am certainly expecting incoming Prez Trump to use his clemency power on first first day back in office, and Prez Biden might be reasonably expected to make use of his clemency power on his last day in office.  Interesting times. 

A few of many recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants 
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations 
• Another report on how pardon possibilities are impacting Jan 6 prosecutions 
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Prez-Elect Trump reiterates pledge to grant Jan 6 pardons on "first day" in office
• Recording of DEPC panel on "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

US Sentencing Commission now officially without two of its seven voting members

With help from a colleague, I can report on significant news relating to the US Sentencing Commission that goes along with the new Congress.  As reported in this post, back in August 4, 2022, the Senate confirmed Prez Biden’s seven nominees to the US Sentencing Commission, fully reconstituting the Commission after many years of being down some members and after 3+ years without a quorum.  Since August 2022, the Commission has been fully loaded as well as quite active.  The seven commissioners were confirmed for staggered terms, with two of those terms — for former Judge John Gleeson and current Judge Claria Horn Boom — expiring October 31, 2023.  President Biden renominated both Judges Gleeson and Boom, and both nominations were reported favorably out of the Senate Judiciary Committee back in April 2024.  Judge Glesson’s nomination was reported by a bare majority, and Judge Boom’s nomination was reported unanimously. 
 
Both Judge Gleeson and Judge Boom were able to continue to serve after the expiration of their terms, pursuant to 28 U.S.C. § 992. That law authorized their continued service until "the date on which the Congress adjourns sine die to end the session of Congress that commences after the date on which the member’s term expired.”  But on Friday, January 3, 2025 at noon, Congress adjourned the second session of the 118th Congress sine die, the nominations of Judges Gleeson and Boom were returned to the White House, and, pursuant to section 992, the terms of these two Commissioners ended.  This development leaves the Commission now with only five voting members, three Democrats and two Republicans.  Pursuant to 28 U.S.C. § 994, it will require four of these five — a supermajority — to vote for any proposed amendments to the Sentencing Guidelines for those proposed amendments to be promulgated and sent to Congress.

The reduction in the number of active members on the Commission raise lots of questions, including whether President Trump will make nominations to the Commission to fill the two vacancies anytime soon, whether the Commission will move forward with additional proposed amendments to the drug guidelines and others as hinted at at their December public meeting (when they already published notable proposed amendments), whether and how the need for a supermajority of commissioners to amend the Guidelines and for other actions will impact the Commission’s agenda and plans, how Chair Reeves will guide this new Commission configuration to work with the new Administration and the new leadership of the 119th Congress and its two judiciary committees, and many more.  (Speaking of the new Administration, I am tempted to joke that whoever is gearing up DOGE might consider taking  premaure credit for the downsizing of Commission.  Jokes aside, the Commission always seemed more productive and effective when fully staffed.)

In the next few months, some of these questions will begin to be answered, and Commission membership dynamics are sure to impact federal sentencing law and policy in this new year and beyond.  Stay tuned.

Judge Merchan upholds Donand Trump's NY state convictions, suggests he will impose sentence of "unconditional discharge" next week

As reported in this AP piece, "a judge Friday set President-elect Donald Trump’s sentencing in his hush money criminal case for Jan. 10 — little over a week before he’s due to return to the White House — but indicated he wouldn’t be jailed." Here is more:

Manhattan Judge Juan M. Merchan, who presided over Trump’s trial, signaled in a written decision that he’d sentence the former and future president to what’s known as an unconditional discharge, in which a conviction stands but the case is closed without jail time, a fine or probation. Trump can appear virtually for sentencing, if he chooses.

Rejecting Trump’s push to dismiss the verdict and throw out the case on presidential immunity grounds and because of his impending second term, Merchan wrote that only “bringing finality to this matter” would serve the interests of justice.

He said he sought to balance Trump’s ability to govern, “unencumbered” by the case, against other interests: the U.S. Supreme Court’s July ruling on presidential immunity and the public’s expectation “that all are equal and no one is above the law,” and the importance of respecting a jury verdict. “This court is simply not persuaded that the first factor outweighs the others at this stage of the proceeding,” Merchan wrote in an 18-page decision.

Judge Merchan's full 18-page ruling, which is available at this link, is primarily concerned with rejecting the defense team's various arguments for dismissing all charges. As the very end, here is is how he explains his sentencing thoughts at the end of the decision:

While this Cout as a matter of law must not make any determination on sentencing prior to giving the parties and Defendant an opportunity to be heard, it seems proper at this juncture to make known the Court's inclination to not impose any sentence of incarcetation, a sentence authorized by the conviction but one the People concede they no longer view as a practicable recommendation.  As such, in balancing the aforementioned considerations in coniunction with the undetlying concerns of the Presidential Immunity doctrine, a sentence of an unconditional discharge appears to be the most viable solution to ensure finality and allow Defendant to pursue his appellate options.  Further, to assuage the Defendant's concerns regarding the mental and physical demands during this transition period as well as the considerations set forth in the 2000 OLC Memorandum, this Court will permit Defendant to exercise his right to appear virtually for this proceeding, if he so chooses.  People v. Reyes,72 Misc 3d 1133 [Sup Ct New York County 2011].

"Toward Pretrial Criminal Adjudication"

The title of this post is the title of this new paper authored by Eric Fish and Chesa Boudin now available via SSRN. Here is its abstract:

The American criminal justice system faces a crisis of adjudication.  Courts rarely decide facts, hear arguments, or hold adversary hearings.  Trials are an endangered species.  Convictions nearly always happen when defendants declare themselves guilty pursuant to plea bargain agreements.  This crisis of adjudication undermines the system's legitimacy.  The rule of law has little purchase in a regime governed by guilty pleas.  Legal rights are not asserted. The government's evidence is not tested.  The values of neutrality, transparency, and legality are sacrificed as power moves from the courtroom to the prosecutor's office.  And case outcomes are dictated by punishment leverage, not by in-court presentation of evidence.  This has created a persistently high risk of wrongful convictions.  It has also eroded the rule of law and facilitated the growth of incarceration.

To address this crisis, academics and reformers have mostly focused on reviving the criminal jury trial.  This Article proposes instead to reframe criminal procedure in a way that emphasizes robust pretrial adjudication.  There are a variety of hearings and other legal proceedings that can happen before a jury trial.  These include grand juries, preliminary hearings, witness depositions, suppression hearings, and bench trials.  In most American jurisdictions, these procedures are weak or nonexistent.  But in some places, they are powerful.  California has an unusually demanding grand jury process.  Florida gives defendants broad rights to depose witnesses before trial.  North Carolina provides misdemeanor defendants both an initial bench trial and a subsequent jury trial.  This Article examines these and other unique practices to propose a fresh way of thinking about criminal adjudication.  It should not be an all-or-nothing proposition that begins and ends with the jury trial.  Adjudication is, at its core, the testing of evidence and law, before a neutral tribunal, carried out in public by trained legal experts.  And adjudication, thus understood, can be incorporated into the pretrial criminal process much as it is in civil cases.  Robust pretrial adjudication serves many of the criminal trial's essential functions-producing evidence, creating transparency, imposing burdens, dignifying the parties, and preserving the rule of law.  Such procedures can supplement the rarely exercised right to a jury trial.  And, if made effective, they can help restore the power of courts in a system that has mostly abandoned adjudication.

Chief Justice discusses importance of, and threats to, "independence of judges" in his annual year-end report

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary.  This year, the Chief's "2024 Year End Report on the Federal Judiciary" is a quite lenthy and interesting essay on the history, importance and threats to judicial independence.  The whole essay is worth multiple reads, and here are a few notable paragraphs from the middle of the essay:

At the end of the day, judges perform a critical function in our democracy. Since the beginning of the Republic, the rulings of judges have shaped the Nation’s development and checked the excesses of the other branches.

Of course, the courts are no more infallible than any other branch.  In hindsight, some judicial decisions were wrong, sometimes egregiously wrong. And it was right of critics to say so.  In a democracy — especially in one like ours, with robust First Amendment protections — criticism comes with the territory. It can be healthy.  As Chief Justice Rehnquist wrote, “[a] natural consequence of life tenure should be the ability to benefit from informed criticism from legislators, the bar, academy, and the public.”

Unfortunately, not all actors engage in “informed criticism” or anything remotely resembling it.  I feel compelled to address four areas of illegitimate activity that, in my view, do threaten the independence of judges on which the rule of law depends: (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.

In addition to an interesting essay, the 2024 year-end report includes federal "workload of the courts" data in an appendix. Here are some of the provided data that might most interest federal criminal justice fans:

In the regional courts of appeals, filings remained fairly stable, falling less than one percent from 39,987 in fiscal year (FY) 2023 to 39,788 in FY 2024. This was an 18 percent drop from FY 2019, the last full fiscal year prior to the COVID-19 pandemic. Total civil appeals were down two percent from the prior year to 21,270. Criminal appeals increased four percent to 10,067.

Appeals by pro se litigants, which amounted to 48 percent of filings, increased three percent to 19,101. Prisoner petitions accounted for 21 percent of appeals filings (a total of 8,388), and 87 percent of prisoner petitions were filed pro se, compared with 38 percent of other appeals filings....

The federal district courts docketed 69,673 criminal defendant filings (excluding transfers) in FY 2024, an increase of six percent from the prior year and a reduction of six percent from FY 2020. The largest categories were filings for defendants accused of immigration offenses, which increased 30 percent to 25,446, and filings for defendants charged with drug offenses, which fell eight percent to 16,735.

Ninety percent of total filings for defendants charged with immigration-related offenses were received by the five districts on the southwestern border: the District of Arizona, the Southern District of California, the District of New Mexico, the Southern District of Texas, and the Western District of Texas....

A total of 121,777 persons were under post-conviction supervision on September 30, 2024, a decrease of one percent from the prior year and a reduction of five percent from FY 2020. Of that number, 109,174 were serving terms of supervised release after leaving correctional institutions, a decrease of one percent from FY 2023.

Cases activated in the pretrial services system, including pretrial diversions, rose two percent to 72,899.

Outgoing North Carolina Gov issues capital communtations and other notable clemency actions

I believe today is the last full day in office for North Carolina's Governor Roy Cooper, and he is going out with two notable sets of clemency actions as reported in this press releases from this office:

"Governor Issues 2 Commutations and 2 Pardons of Forgiveness"

"Governor Cooper Takes Capital Clemency Actions"

Here is part of the statement regarding the capital clemencies:

Today, Governor Roy Cooper announced that he has commuted the sentences of 15 people on death row in North Carolina to life without the possibility of parole. He commuted these sentences after a thorough review of detailed petitions for clemency submitted by the defendants, input from district attorneys and the families of victims, and close review by the Governor’s Office. 

“These reviews are among the most difficult decisions a Governor can make and the death penalty is the most severe sentence that the state can impose,” said Governor Cooper. “After thorough review, reflection, and prayer, I concluded that the death sentence imposed on these 15 people should be commuted, while ensuring they will spend the rest of their lives in prison.”

No executions have been carried out in North Carolina since 2006 due to ongoing litigation. Before today’s commutations, North Carolina had 136 offenders on death row and the Governor’s Clemency Office received petitions for clemency from 89 of them. The Governor’s Office carefully reviewed, researched, and considered these 89 petitions for commutations, which included the 15 that were granted today.

A little commentary on the Third Circuit's big Second Amendment ruling in Range

Last week, as noted here, the fully Third Circuit again found the federal felon-in-possesion criminal ban to be unconstitutional as applied to Byran Range.  This outcome, as well as the 13-2 vote (with judges appointed by six different presidents supporting the outcome), seems like a pretty big deal for the future of Second Amendment jurisprudence.  But so far I have seen only a little discussion of the big ruling, no doubt in part due to its timing.  Here are a round up of the commentary I have seen:

From GunMag, "The Most Critical 2024 Second Amendment Case"

From Lisa Foundation, "A Good Day at the Range" 

From The Reload, "How Rahimi Made Two Judges Switch Sides on Non-Violent Felon Gun Rights"

From the Wall Street Journal, "The Second Amendment, Reawakened: An appeals court says a nonviolent misdemeanor doesn’t end gun rights."

From Washington Gun Law, "One of the Best Second Amendment Rulings in a Long Time"

Noting 2024 death sentencing trends in a number of notable states

As 2024 winds down, I have seen a few notable press pieces highlighting death sentencing (and execution) trends in a few notable states.  Because the long-term fate and future of capital punishment in the US largely turns on death sentencing trends, I will highlight that part of these stories in the excerpts below:

From Alabama, "Steve Marshall proud Alabama leads US in executions, despite backlash"

The [Death Penalty Information Center] reported of the 26 people newly sentenced to death in 2024, four were inmates in Alabama.  Over 40 percent of 2024’s new death sentences occurred in Alabama or Florida, the only states in which non-unanimous juries may impose capital punishment.  Nine of these eleven death sentences were non-unanimous decisions.

From Florida: "Executions in Florida dropped in 2024, but number of new death sentences lead nation"

But even as Florida carried out only one execution this year, the seven death sentences handed out by juries topped all states, edging out Texas’ second-place total of six.  About one-third of the 26 new death sentences imposed nationwide came from non-unanimous juries, including six in Florida. Last year, DeSantis enacted legislation which reduced the number of votes needed to recommend a death sentence from unanimous to eight-out-of-12 jurors.

From Oklahoma, "As Oklahoma Executions Continue, New Death Sentences Grow Rare"

Oklahoma’s death row is dwindling with each execution.  No state court has imposed a death sentence since May 13, 2022, when a Tulsa County judge followed a jury’s recommendation and sentenced David Ware to death for the murder of Tulsa Police Sgt. Craig Johnson....  The nearly 1,000-day stretch without a new death sentence is Oklahoma’s longest since at least 1974, according to data compiled by the Death Penalty Information Center, a Washington, D.C.-based nonprofit that does not take a position on the death penalty but describes itself as critical of how it’s administered. 

From Texas, "Texas ranked second in executions carried out in 2024, behind Alabama"

The six new death sentences handed down by Texas juries this year were double the number handed down last year. Still, the long-term trend is of decline. "Death sentences peaked in this state in 1999, when juries sent 48 people to death row," [Kristin Houlé] Cuellar said. "For the last decade, death sentences have remained in the single digits every year."

Highlighting ACLU's class-action lawsuit over the First Step Act's earned-time credits

I have blogged repeatedly about various challenges that the Bureau of Prisons has faced in the implementation of the First Step Act's earned-time credits. In this new Forbes piece, headlined "ACLU Files Class Action Against Bureau Of Prisons Over First Step Act," Walter Palvo reports on a new ACLU lawsuit filed again BOP. I recommend the piece in full, and here are excerpts (with links from the original):

In November 2022, Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) wrote to the Federal Bureau of Prisons (BOP) Director Colette Peters about their concerns concerning the implementation of the First Step Act (FSA)....  Over two years since release of that statement, the BOP continues to struggle in implementing FSA, which allows thousands of mostly minimum security prisoners to both reduce their sentence and spend more of their sentence in prerelease custody in the community.  Last week, the American Civil Liberty Unions (ACLU) filed a class action lawsuit on behalf of thousands of prisoners who believe they should be in community confinement rather than prison.  According to the lawsuit the BOP has unlawfully treated credits earned under FSA as discretionary rather than a mandate clearly stated in the law....

The BOP has largely succeeded in giving FSA credits associated with reducing the sentence, which can be up to one year.  However, for those with longer sentences, over 4 years, the FSA allows prisoners to continue to earn credits toward prerelease custody (halfway house and home confinement).  This part of the FSA has caused considerable problems for the BOP as it has interpreted this part of the law as being discretionary, something the ACLU has focused on in its lawsuit.  It is anticipated that thousands of federal prisoners will sign on to this action.

The BOP has already been sued by individual prisoners and the courts have awarded the credits in some of those cases that were disputed.  However, the BOP did not use those losses as an action to update its program statements nor did they appeal the ruling.  Instead, the BOP has been less than transparent in how it determines when a person can apply the credits for prerelease custody.  Federal prisoners have a right to resolve their differences with the BOP through an administrative remedy process.  However, that process can take months and prisoners simply serve out their term without receiving the maximum amount of time in the community....

Over the past few months, I have received dozens of letters from FCI Forrest City satellite prison camp stating that they are not receiving the credits due to a lack of programming and a FSA miscalculation by the BOP.  As one prisoner wrote, “My formal attempts to remedy this issue with the prison’s administrators and staff have [been] met with negative results due to their refusal to take any remedial action.”  Based on reviews of several FSA calculations, not only is the BOP not releasing prisoners as soon as it could, many prisoners believe they are being retaliated against for bringing attention to the problem.  The ACLU press release on its lawsuit states that “the BOP’s failure to implement the First Step Act according to its plain language violates the rights of thousands of people who should be returning to their communities and rebuilding their lives but instead remain incarcerated.”

The BOP may have reasons for not moving prisoners into the community.  The BOP has stated that it does not have the capacity in halfway houses to place prisoners and has taken liberty to move prisoners only when it has the ability to do so.  The FSA was known as being a law that would lead to more prisoners in community custody yet the bed space capacity at halfway houses in 2018, the year the law was signed, remains roughly the same today years later.

Rounding up some reactions to Prez Biden's decision to commute 37 federal death sentences

Prez Biden's decision to commute the sentences of 37 of the 40 convicted murderers on federal death row to life without of parole is remarkable for many reasons.  Thus, it is not surprising that many people are remarking about the decision.  Here is an abridged round up of just some of the reactions catching my this morning:

From the AP, "Relief, defiance, anger: Families and advocates react to Biden’s death row commutations"

From The Atlantic, "Joe Biden’s Moral Wisdom"

From Fox News, "Family of murdered SC woman rages at Biden for commuting killer's death sentence: 'She was shown no mercy'"

From The Hill, "Biden did the right thing granting clemency to 37 federal death row inmates"

From MS-NBC, "Joe Biden's justifiable mercy"

From the New York Daily News, "Trump slams Biden for commuting death sentences of 37 federal prisoners"

From the Sacramento Bee, "Joe Biden’s inconsistent commutations: Hate is a crime, but apparently not for all"

From USA Today, "'A mistake': Biden faces backlash upon commuting sentences of death row inmates"

From 10TV (Columbus, Ohio), "'Absolutely devastating': Parents react to Biden's commutation of death sentence for man who killed their son"

Prior recent related posts:

• A few legal musings about the prospect of Prez Biden commuting all federal capital sentences 
• Prez Biden commutes to LWOP the federal death sentences of 37 murderers

En banc Third Circuit again finds federal felon-in-possesion ban unconstitutional as applied to Byran Range

Eighteen month ago, as reported in this post, the full en banc Third Circuit found unconstitutional, on the basis of the landmark Second Amendment Bruen opinion, the application of federal felon-in-possession law to a person with a false statement conviction from decades prior.  The Supreme Court called upon the Third Circuit to review its work following the Justices' subsequent 2024 Second Amendent ruling in Rahimi.  Today, the en banc Third Circuit reached the same Second Amendment outcome in Range v. Attorney General, No. 21-2835 (3d Cir. 2023) (available here).

The new majority opinion in Range runs only 20 pages, and it is followed by nearly 150 pages of concurrences and dissents. Here's the full run down for those interested in the headcount:

HARDIMAN, Circuit Judge, filed the Opinion of the Court with whom CHAGARES, Chief Judge, and JORDAN, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES, and CHUNG, Circuit Judges, join.

MATEY, Circuit Judge, filed a concurring opinion.  PHIPPS, Circuit Judge, filed a concurring opinion.  KRAUSE, Circuit Judge, filed an opinion concurring in the judgment, with whom ROTH, Circuit Judge, joins in part.  ROTH, Circuit Judge, filed an opinion concurring in the judgment, with whom KRAUSE and CHUNG, Circuit Judges, join in part. AMBRO, Circuit Judge, concurs in the judgment only. SHWARTZ, Circuit Judge, filed a dissenting opinion with whom RESTREPO, Circuit Judge, joins.

For those who celebrate Festivus traditions, it would appear the Third Circuit has served up some "feats of strength" as well as some "airing of grievances."  As for the basics, here is how Judge Hardiman's majority opinion starts and ends:

Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-inpossession” law — 18 U.S.C. § 922(g)(1) — violates his Second Amendment right to keep and bear arms.  We agree with Range that, despite his false statement conviction, he remains among “the people” protected by the Second Amendment. And because the Government did not carry its burden of showing that the principles underlying our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand....

Our decision today is a narrow one.  Bryan Range challenged the constitutionality of 18 U.S.C. § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a).  Range remains one of “the people” protected by the Second Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms.  More than two decades after he was convicted of foodstamp fraud and completed his sentence, he sought protection from prosecution under § 922(g)(1) for any future possession of a firearm.  The record contains no evidence that Range poses a physical danger to others.  Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his Second Amendment rights.  We will reverse the judgment of the District Court and remand so the Court can enter a declaratory judgment for Range, enjoin enforcement of § 922(g)(1) against him, and conduct any further proceedings consistent with this opinion.

As I have mentioned in the past, Bryan Range's case seems particularly sympathetic, as he was convicted nearly three decades ago of only a relatively minor crime.  Because this Range ruling creates a clear circuit split on the constitutionality of 18 U.S.C. § 922(g)(1) in some settings, I would expect to see an appeal to the Supreme Court by the US Department of Justice. But maybe the new incoming Justice Department officials might not want to test the application and reach of the Second Amendment in this particular "narrow" case.

Prez Biden commutes to LWOP the federal death sentences of 37 murderers

As reported in this AP piece, "President Joe Biden announced on Monday that he is commuting the sentences of 37 of the 40 people on federal death row, converting their punishments to life imprisonment just weeks before President-elect Donald Trump, an outspoken proponent of expanding capital punishment, takes office." Here is more:

The move spares the lives of people convicted in killings, including the slayings of police and military officers, people on federal land and those involved in deadly bank robberies or drug deals, as well as the killings of guards or prisoners in federal facilities.

It means just three federal inmates are still facing execution. They are Dylann Roof, who carried out the 2015 racist slayings of nine Black members of Mother Emanuel AME Church in Charleston, South Carolina; 2013 Boston Marathon bomber Dzhokhar Tsarnaev; and Robert Bowers, who fatally shot 11 congregants at Pittsburgh’s Tree of life Synagogue in 2018, the deadliest antisemitic attack in U.S history.

The White House has these releases detailing this notable clemency action: "FACT SHEET: President Biden Commutes the Sentences of 37 Individuals on Death Row" and "Statement from President Joe Biden on Federal Death Row Commutations."  The "Fact Sheet" in part discusses Prez Biden's clemency record and concludes with this notable sentence: "In the coming weeks, the President will take additional steps to provide meaningful second chances and continue to review additional pardons and commutations."  On the capital clemencies, the statement from Prez Biden is relatively short, and here it is in full:

I’ve dedicated my career to reducing violent crime and ensuring a fair and effective justice system.

Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole. These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder.

Make no mistake: I condemn these murderers, grieve for the victims of their despicable acts, and ache for all the families who have suffered unimaginable and irreparable loss.

But guided by my conscience and my experience as a public defender, chairman of the Senate Judiciary Committee, Vice President, and now President, I am more convinced than ever that we must stop the use of the death penalty at the federal level. In good conscience, I cannot stand back and let a new administration resume executions that I halted.

I mused a bit in this post over the weekend about a few legal issues that could follow these commutations, and one involved whether Prez Biden might include pending capital cases in any blanket clemency effort.  It appears he did not here (though he still has four weeks with the clemency pen).

Prior recent related post:

•   A few legal musings about the prospect of Prez Biden commuting all federal capital sentences 

A few legal musings about the prospect of Prez Biden commuting all federal capital sentences

Articles published last week from the New York Times and the Washtington Post discussed campaigns urging Prez Joe Biden to commute the capital sentences of all convicted murderers on federal death row.  Now the Wall Street Journal has this new "exclusive" report, headlined "Biden Weighs Commuting Sentences of Death Row Inmates," which gets started this way:

President Biden is considering commuting the sentences of most, if not all, of the 40 men on the federal government’s death row, people familiar with the matter said, a move that would frustrate President-elect Donald Trump’s ability to resume the rapid pace of executions that marked his first term....

A decision from the president could come by Christmas, some of the people said.  A principal question is whether the president should issue a blanket commutation of all the condemned men, or whether death sentences should remain for the most heinous convicts, these people said. 

According to the WSJ, "Attorney General Merrick Garland ... has recommended that Biden commute all but a handful of the sentences, ... excepting a few terrorism and hate-crimes cases."  Also notable, as reported in this Vatican News story, is broader advocacy from the Pope:

Pope Francis and US President Joe Biden spoke with each other in a phone call overnight on 19 December....  The two leaders discussed "efforts to advance peace around the world during the holiday season," according to a White House statement....  The President "also graciously accepted His Holiness Pope Francis’s invitation to visit the Vatican next month."  In a subsequent statement, the White House press secretary noted Biden will be in Rome from 9-12 January [and that] the audience with the Pope is scheduled for 10 January....

One of the issues that is particularly close to the Pope's heart is the fate of prisoners on death row.... The Pope has described the death penalty as an act "at odds with Christian faith" and one that "eliminates all hope for forgiveness and rehabilitation."  During the Angelus on the Feast of the Immaculate Conception on 8 December, the Holy Father called on the faithful to "pray for the prisoners who are on death row in the United States."...  "Let us pray," he said, "that their sentence be commuted, changed.  Let us think of these brothers and sisters of ours and ask the Lord for the grace to save them from death."  

I have been expecting Prez Biden to commute at least a few capital sentences on his way out of the Oval Office.  Prez Obama commuted two death sentences during his last week in office, and capital clemency has a rich modern history at the state level.  But these press reports have me thinking blanket or near-blanket commutation for all of federal death row is a real possibility and perhaps real soon (though maybe not until just before or just after Prez Biden meets with the Pope).  Though I will leave it to others to discuss the morality and the politics of blanket federal capital commutations, I wanted to muse here about a few legal matters:

1.  Because there are some pending federal capital prosecutions, including 9/11 terrorists at GTMO and the racist mass shooter who murdered 10 in Buffalo (and perhaps also even the recent murder of the UnitedHealthcare CEO), an effort to preclude all possible future executions might need to include murderers beyond those already sentenced to death.  There are ways to write up a broad clemency order that would apply to all pending cases, and it will be interesting to see if anti-capital commutations extend to pending cases as well as past ones.

2.  Because broad federal capital commutations will surely be controversial, I wonder if any states could or would try to secure death sentences for murderers spared by Prez Biden.  For example, I believe Pennsylvania held state capital charges in abeyance while DOJ sought and secured a federal capital sentence for the Tree of Life Synagogue mass murderer.  Were this mass murderer to escape a federal capital sentence, perhaps state capital charges would begin again.  Practically, I suspect there are only a very few cases in which a state could pursue their own capital charges (and a number of federal capital defendants committed murders in states without the death penalty).  

3.  Because broad federal capital commutations will surely be controversial, I wonder if the future Trump Department of Justice might explore the possibility of capital reprosecutions.  That might sound peculiar, but the Biden Department of Justice pursued unresolved fraud charges against Philip Esformes after his prison sentence had been commuted by Prez Trump.  Many folks expressed concern about what seemed like an end-run around a presidential clemency grant; I had the honor of testifying at a congressional hearing on the topic, and I've been deeply concerned about a new norm of future administrations looking for ways to undo some past clemency grants.  Practically, I suspect reprosecution efforts unlikely, especially if Prez Biden leaves some murderers on federal death row, but I am still grumpy the Biden DOJ created a precedent for doing so.

4.  Because federal capital commutations will be, presumably, to a term of imprisonment of life, it could be possible for the recipients to seek a future reduction of their prison sentence thanks to a key provision of the First Step Act signed into law by Prez Trump.  Specifically, 18 U.S.C. § 3582(c) now provides authority for a judge to "reduce the term of imprisonment" on a defendant's motion when certain (fairly stringent) conditions are met.  Though I can imagine viable arguments that murderers serving LWOP-commuted-death sentences are categorically ineligible for so-called "compassionate release," I still would expect some (many?) of those who get death sentences commuted to, at some point, try to also get their imprisonment term reduced.

Rounding up some new stories about state clemency activity

Federal clemency issues remains robust with both the out-going and in-coming President generating news and commentary.  Though I am sure to have many more posts on the federal front in the days and weeks ahead, I was pleased to see a few recent stories about Governors granting clemency that should not get overlooked.  Here is a round up:

From Colorado: "Colorado governor issues 22 pardons and commutes sentences of 4 people, including 2 men convicted of murder"

From Missouri: "Missouri Governor Mike Parson Clears Clemency Backlog, Grants 16 Pardons, and 9 Commutations at End of Term"

From New York: "Hochul grants clemency to 22"

From Tennessee: "Gov. Lee grants executive clemency to more than 40 people"

As noted in recent posts linked below, a few other state governors have also used their clemency pen in notable ways earlier this month. But, obviously, there are a lot more Governors who have not made clemency news than those who have. And it will be interesting to see if all the clemency controversy at the federal level could impact how Governors use their powers.

A few of many prior recent related posts:

• Ohio Gov DeWine adds to clemency conviviality with pardon event 
• After seven years in office, NJ Gov finally finds his clemeny pen to grant 33 pardons and three commutations
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies

UPDATE ON CHRISTMAS EVE (in the AM):  Based on latest headlines, it seems at least three more Governors got into the holiday clemency mood:

From Michigan: "Michigan Gov. Gretchen Whitmer pardons 3, commutes sentences of 5"

From North Carolina: "Cooper pardons 9, commutes sentences for 6, including former NC teen convicted of murder"

From Texas: "Gov. Greg Abbott pardons four Texans but stays silent on Robert Roberson" 

The Sentencing Project releases review of "Top Trends in Criminal Justice Reform, 2024"

The folks at The Sentencing Project today released this new report reviewing a number of state criminal justice reform developments in this past year.  Though the report is not detailed or comprehensive, I still recommend the short report in full for its broad coverage of various state-lelvel developments.  Here is its opening "overview":

The United States has one of the highest incarceration rates in the world.  Nearly two million people -- disproportionately Black -- are incarcerated in the nation’s prisons and jails.  In the early 1970s, 360,000 persons were incarcerated in correctional facilities.

Criminal legal reform trends in 2024 were divergent at a time when politicians used punitive-sounding talking points to move voters fearful of a recent uptick in crime.  However, stakeholders, including formerly incarcerated activists and lawmakers, saw some success in scaling back mass incarceration.  Advocacy organizers and officials in at least nine states advanced reforms in 2024 that may contribute to decarceration, expand and guarantee voting rights for justice impacted citizens, and advance youth justice reforms.

US Sentencing Commission votes on (first?) set of notable "Proposed Amendments to the Sentencing Guidelines (Preliminary)"

As previously noted here, the US Sentencing Commission held a public meeting this afternoon which included unanimous votes to "Publish Proposed Guideline Amendments and Issues for Comment."  Interestingly, before the vote on the proposed amendment, the "Report from the Chair" included a statement by USSC Chair Judge Carlton Reeves that there could be additional future proposed amendments coming from the Commission in January related to the drug guidelines and supervised release issues.  For this meeting, there were five proposed amendments on the topics of simplification, criminal hisotry, firearm offenses, circuit conflicts and retroactivity.  I will update this post when the USSC provides links to its proposals.

UPDATE:  Here is the main text of this Commission press release discussing its proposed amendments:

Today the bipartisan United States Sentencing Commission voted unanimously to publish proposed amendments to the federal sentencing guidelines for the amendment cycle ending May 1, 2025 (watch the meeting).  These proposals stem from public input the Commission has received in recent years, including more than 1,200 pages of comments on what work the agency should prioritize this amendment cycle. Among today’s proposals are those that would: 

• create an alternative to the “categorical approach” used in the career offender guideline to determine whether a conviction qualifies a defendant for enhanced penalties; 
• simplify the “three-step” approach that courts currently use when applying the guidelines; 
• address the guidelines’ treatment of devices designed to convert firearms into fully automatic weapons; 
• add a mens rea requirement to the sentencing enhancement for use of stolen firearms; and 
• resolve certain circuit conflicts regarding guideline application.

“We look forward to hearing from the public about these proposals in light of the Commission’s statutory obligation to promote fairness in sentencing, end unwarranted disparities, and ensure sentences reflect the latest data, research, and science,” said Judge Carlton W. Reeves, Chair of the Commission.  “Over the next month, the Commission will consider whether to publish additional proposals that reflect the public comment, stakeholder input, and feedback from judges that we have received over the last year -- including at the roundtables we have held in recent months on drug sentencing and supervised release.”

The Commission is seeking comment on these proposals through February 3, 2025 with a reply period closing on February 18, 2025. The public is encouraged to submit comment through the agency’s comment portal available here.  A public hearing will be scheduled on these proposals in early 2025.  Official text of proposed amendments and issues for comment will also be published in a forthcoming edition of the Federal Register. “We welcome your comments,” said Chair Reeves.

This USSC webpage provides a helpful summary of the coverage of the proposed amendments.  The full "reader-friendly" text of these proposals clocks in at 665 pages (thank goodness it did not turn evil with just one more page)!

Highligthing great new guest posts at the Sentencing Matters Substack (and welcoming more)

I have been (somewhat inconsistently) highlighting here the weekly posts at the Sentencing Matters Substack that some colleagues and I host to publish longer-form essays on an array of sentencing topics.  I am especially pleased that this month we have published two great new guest posts in that forum:

From Katie Kronick, "Why is it So Hard for Courts to Adjust to Advancements in Knowledge of Human Behavior?: A Death Penalty Case Study"

From Norman Reimer, "First Steps and Second Chances: A Review of "A Second Chance": a Federal Judge’s Perspective on Compassionate Release and a System in Need of Reform"

We are planning a final 2024 substack post new week that provides a brief review of some of the substack's coverage, and it also provides this open invitation for more outside contributions:

We genuinely appreciate you reading our essays and being part of this project.  Through our writing, we are trying to uncover an insight or two and share that thinking in a mildly interesting way.  We hope you will continue to join us as we grapple with the important issues of crime and punishment, remorse and forgiveness, policymaking and politics, law and judging, and freedom and justice in the year to come.  We’d love to hear from you now and then.  And we’d love to bring in new voices to this conversation, including yours, including those serving -- or who have served -- time in prison, victims of crime, prosecutors, defense lawyers, probation officers, judges, other academics, and just other everyday citizens.  We’ve tried to create an aesthetic on this Substack that is serious, at times just a little bit snarky, but always gracious.  If you’re at all inclined to contribute something, let us know. 

"The Impact of United States v. Erlinger on State Recidivist Sentencing Laws"

The title of this post is the title of this notable new essay authored by Chad Flanders just posted to SSRN.  Here is its abstract:

In Erlinger v. United States, the U.S. Supreme Court ruled that finding that an offender had committed two felonies "on separate occasions" under the Armed Career Criminal Act had to be made by a jury, not a judge.  In one respect, the decision is narrow and straightforward: it merely is an extension of the Court's Apprendi jurisprudence.  But in another respect, the decision is far-reaching.  As some state appeals courts have already realized, the decision makes unconstitutional state laws that give the judge -- rather than the jury -- the power to decide whether someone is a "persistent" or "habitual" offender based on whether a defendant's felonies occurred at "different times" or on "separate occasions."  This paper is a call for lawyers and scholars to pay attention to Erlinger.  It also tries to give some guidance to defendants litigating Erlinger violations, courts dealing with these defendants, and state legislatures who will have to fix their now-unconstitutional sentencing laws.

After seven years in office, NJ Gov finally finds his clemeny pen to grant 33 pardons and three commutations

I am disinclined to have this blog drone on with non-stop clemency coverage, but this is the season for grace and today marked the end of one Garden State mystery with New Jersey Governor Phil Murphy finally discovering his clemency power.  This Politico article provides some details:

New Jersey Gov. Phil Murphy on Monday issued 33 pardons and three sentence commutations in his first act of clemency, nearly seven years after he took office.  “My only regret is we did not get to this day sooner,” Murphy said at a Trenton press conference, promising this was just the “first round” of legal relief, with more to come over his final year in office....

Most of the pardons in New Jersey are for non-violent offenses, predominantly property crimes and drug offenses. Some date back to the early 1970s, with the most recent crime being a 2011 conviction for making a false report to law enforcement.

The three sentence commutations are all for women who were convicted of murder, with the most recent one from 2006.  “Over the course of their lives, each one of these women has suffered immense hardship. All of them are survivors in one form or another. But when they were originally sentenced for the crimes they committed years ago, they received sentences that were too long based on what we know today,” Murphy said....

Murphy ran for office as a progressive and instituted several major criminal justice initiatives, including expanding expungement and restoring the right to vote for those on probation and parole. That contrasted with his lack of clemency actions during his seven years in office. Murphy’s recent gubernatorial predecessors from both parties issued pardons or sentence commutations far earlier in their tenure, though most saved the bulk of them for their final year in office.

Murphy in June ordered the formation of a Clemency Advisory Board to consider pardon and commutation applications and make recommendations. The board gave expedited consideration to those convicted of non-violent crimes who later stayed out of the legal system. For commutations, they expedited applications for those given “excessive trial penalty” or if they were victims of domestic violence, sexual violence or sex trafficking.  The Murphy administration also said it made “more robust victim outreach than in prior administrations” ahead of granting clemency.

This official press release from Gov Murphy's office includes the full list of clemency recipients and other details, as well as some quotes from stakeholders (including "criminal justice advocate" Kim Kardashian).

Reviewing basic demographics of home-confinement recipients of Prez Biden's mass commutation

This new USA Today piece, headlined "Who was pardoned in Biden's clemency? Data breakdown of demographics, ages," reports on some general characteristics of the 1499 persons serving time on home confinement who received commutations from Prez Biden last week.  Here are some of the details:

An analysis of data collected by USA TODAY from the Bureau of Prisons showed the demographic split behind the numbers. Among the 1,499 whose sentences were commuted, 1,217 were identified as male and 282 as female.

About 61% of those were white, 37% Black, 1.8% Asian and 0.5% American Indian. Overall, 57% of people in prisons are white, 39% Black, 1.5% Asian and 2.9% American Indian....

The ages of those granted clemency ranged from 25 to 89, with a median age of 51. Many were nearing the end of their sentences; half had a year or less remaining before their projected release.

Notable new cert petition seeks to undo atextual "petty offenses" exception to constitutional jury trial right

In prior posts (some linked below), and also in this recent post over at the Sentencing Matters Substack, I have mused in various ways about what the Supreme Court's originalist turn could and should mean for various sentencing doctrines and broader criminal justice constitutional jurisprudence.  And so I was intrgued to see this new press release from the New Civil Liberties Alliance highlighing a new cert petition urging the Supreme Court to overturn its (unoriginalist) limit of just trial rights.  Here excerpts from the press release:  

[On December 13, 2024], the New Civil Liberties Alliance and the Stanford Law School Supreme Court Litigation Clinic petitioned the Supreme Court to hear David Lesh v. United States.  On behalf of Mr. Lesh, NCLA seeks to overturn the Court’s unjust precedent that directly contradicts the explicit language of the Constitution by denying individuals charged with “petty offenses” their right to a jury trial.  This precedent led the U.S. Court of Appeals for the Tenth Circuit to rule that NCLA client David Lesh was not deprived of his constitutional jury-trial right when prosecuted and convicted for violating U.S. Forest Service (USFS) regulations. The Supreme Court should take this opportunity to eliminate the “petty-offense exception.”...

The Supreme Court’s “petty-offense exception” to the Constitution’s jury-trial guarantee required the Tenth Circuit to uphold the magistrate’s determination that Mr. Lesh was not entitled to a jury trial.  However, in a powerful concurrence, Tenth Circuit Judge Tymkovich, joined by Judge Rossman, urged the Supreme Court to revisit the doctrine.  Judge Tymkovich explained that this exception appears to be inconsistent with the text of both Article III of the Constitution and the Sixth Amendment, and he noted that the exception has been called into question by many constitutional scholars.  Notably, the district court judge, who reviewed the magistrate’s determination, had made a similar observation in his decision upholding the convictions.

The Sixth Amendment’s jury-trial guarantee “[i]n all criminal prosecutions” is currently interpreted by the Supreme Court to exclude petty offenses — those generally carrying a penalty of six months’ imprisonment or less.  Article III independently protects this right as well, requiring trials for all crimes.  The exception applies even if, as in Mr. Lesh’s case, the defendant could conceivably serve more than six months if multiple counts of conviction are served consecutively.  Regardless, the exception contravenes the Constitution’s plain language and history and contradicts the Supreme Court’s methods for interpreting constitutional text.  The Justices have recently made clear that Americans cannot be stripped of their right to a jury trial for reasons of efficiency or expedience.

Lots of informatin about this case are assembled on this NCLA page, and here are a few excerpts from the cert petition (which is worth reading in full):

Today, the petty-offense exception denies criminal defendants the right to jury trial when they are charged with crimes punishable by a maximum of six months’ imprisonment and that are not otherwise judicially classified as “serious”— even when charged with multiple counts punishable by six months each....

This departure from the plain and unambiguous text of the Constitution violates a core promise of the Framers: that, in a criminal case, a jury of one’s peers would always stand between the accused and the power of the state to deprive him of liberty or property. It also makes a hash of the Constitution’s broader structure, rendering other carefully calibrated language regulating criminal procedure either meaningless or nonsensical. And the petty-offense exception flouts the historical common-law rule the Constitution was meant to render inviolate....

[T]he petty-offense exception flouts the text, structure, and history of the Constitution. But that is not all; it is also flatly inconsistent with this Court’s modern methodology for construing the Sixth Amendment....

Yet instead of adhering to the original public meaning of the right to jury trial, the Court has grounded its petty-offense exception in a balancing of policy considerations. The Court has opined that “the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive nonjury adjudications.” Duncan, 391 U.S. at 160. And when creating the six-month cutoff for petty offenses, this Court “weigh[ed] the advantages to the defendant against the administrative inconvenience to the State inherent in a jury trial and magically conclud[ed] that the scale tips at six months’ imprisonment.”  Baldwin v. New York, 399 U.S. 66, 75 (1970) (Black, J., concurring in the judgment).

A few of many recent posts on originalism topics:

• Initial musings on the Supreme Court’s originalist turn and sentencing issues
• Exploring originalism and criminal justice at this SCOTUS moment 
• Modest musings on Eighth Amendment originalism two decades after Ewing v California 
• Notable (and failed) argument that “originalist" jury trial right must allow juries to know about sentence and nullification 

"An Equilibrium Model of Deferred Prosecution Agreements"

The title of this post is the title of this new paper now on SSRN authored by Brian Grenadier and Steven R. Grenadier. Here is its abstract:

Deferred prosecution agreements (DPAs) are now a standard tool used by prosecutors to punish corporate crime.  Under a DPA, the defendant escapes prosecution by living up to the terms of the contract. However, if the prosecutor declares a breach, the defendant may face immediate prosecution.  We present an equilibrium theoretical model of the terms of a DPA, highlighting a little-recognized, yet potentially valuable benefit accorded the defendant: the option to breach.  While at the initiation of the agreement, a breach might likely be seen as a much more painful outcome than adhering to the DPA, over time this situation could change.  Using the tools of real option analysis, we demonstrate that DPAs may embed valuable optionality, particularly for longer-term agreements with significant uncertainty over future prosecution outcomes.  Since DPA penalties must price in such optionality, naïve comparisons to agreements without optionality, such as plea bargains, will mistakenly conclude that DPA terms are overly onerous and oppressive.

Ohio Gov DeWine adds to clemency conviviality with pardon event

I had clemency on the mind this morning even before seeing the news of Prez Joe Biden's notable new clemency work because I was due to drive up to Cleveland for an exciting state pardon event.  This news release, titled "Ohio Governor's Expedited Pardon Project Nears 200 Pardons on Fifth Anniversary," has some great photos and this overview:

During a celebration at Cleveland State University this afternoon, Ohio Governor Mike DeWine announced that nearly 200 people have been pardoned in the first five years of the Ohio Governor's Expedited Pardon Project.

Governor DeWine launched the project in December 2019 to simplify and expedite the lengthy pardon application process for certain rehabilitated citizens who have consistently demonstrated that they’ve become law-abiding, contributing members of society in the years since their convictions.

As of today, 182 individuals have received expedited pardons through the program, including 74 people pardoned in the past 12 months alone. Two pardon recipients stood with Governor DeWine today as he signed their pardons. "Even for those who've learned from their mistakes and have gone on to live good lives, a criminal history shuts the door on certain career, education, and volunteer opportunities," said Governor DeWine. "Through the Ohio Governor's Expedited Pardon Project, we are helping to remove the obstacles for those who have become upstanding citizens."

The Ohio Governor's Expedited Pardon Project eliminates administrative hurdles in the complex pardon application process and provides free one-on-one support from partnering law schools in Ohio. Pardon requests submitted through the Ohio Governor's Expedited Pardon Project are also fast-tracked for consideration by the Ohio Parole Board and, ultimately, the governor.

The program operates in partnership between the Ohio Governor's Office, Ohio Department of Rehabilitation and Correction, The Ohio State University Moritz College of Law Drug Enforcement and Policy Center, the University of Akron School of Law, Cleveland State University College of Law, the University of Dayton School of Law, and the Ohio Justice & Policy Center in partnership with the University of Cincinnati College of Law.

Since 2019, 543 applicants have met the criteria to participate in the Ohio Governor's Expedited Pardon Project with more than 275 people currently in various stages of the expedited pardon application process.,,,

For more information on the Ohio Governor's Expedited Pardon Project, including how to apply and minimum eligibility requirements, visit ohioexpeditedpardon.org.

It continues to be an extraordinary honor and privilege to have a role in the development and operation of the Ohio Governor's Expedited Pardon Project, and it was a pure joy to celebrate Gov DeWine's commitment to second chances and those who have eared them.

Prez Biden commutes sentences of COVID home confinement cohort and also grants 39 pardons

Two days ago, I moderated this event, titled "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power," in which a number of panelists assailed Prez Biden's clemency record.  This morning, the White House released this statement from Prez Biden reporting that his clemency record is now much more robust.  Here is the full text of what is titled "Statement from President Joe Biden on Providing Clemency for Nearly 1,500 Individuals on Home Confinement and Pardons for 39 Individuals Convicted of Non-Violent Crimes":

America was built on the promise of possibility and second chances.  As President, I have the great privilege of extending mercy to people who have demonstrated remorse and rehabilitation, restoring opportunity for Americans to participate in daily life and contribute to their communities, and taking steps to remove sentencing disparities for non-violent offenders, especially those convicted of drug offenses.

That is why, today, I am pardoning 39 people who have shown successful rehabilitation and have shown commitment to making their communities stronger and safer.  I am also commuting the sentences of nearly 1,500 people who are serving long prison sentences – many of whom would receive lower sentences if charged under today’s laws, policies, and practices.  These commutation recipients, who were placed on home confinement during the COVID pandemic, have successfully reintegrated into their families and communities and have shown that they deserve a second chance.

I will take more steps in the weeks ahead.  My Administration will continue reviewing clemency petitions to advance equal justice under the law, promote public safety, support rehabilitation and reentry, and provide meaningful second chances.

This CNN piece, headlined "Biden grants clemency for nearly 1,500 people, the biggest single-day act of clemency in modern history," provides a few details on the pardon recipients:

The 39 people being pardoned were convicted of non-violent crimes, and considered to have demonstrated records of meaningfully giving back to the country. “They are individuals who have secured employment, advanced their education, served as caretakers for their children and family members, and have really reintegrated into the tapestry of their communities,” an administration official familiar with the announcement told CNN. “They include individuals who faced incredible challenges in life and have really now shown resilience and seeking to overcome those challenges.”

While CNN has not obtained a full list of names of the clemency recipients, sources provided several examples of individuals being pardoned. Among them: A decorated military veteran described as having devoted much of his time helping members of his community including the sick and elderly; a nurse who is said to have helped during natural disasters and was at the forefront of vaccination efforts during the Covid-19 pandemic; as well as an addiction counselor recognized for his dedication to mentoring young men of color.

The pardon details in the CNN piece seems to come from this "fact sheet" released by the White House discussing today's clemency activity more fully.

UPDATE:  Here is a link to the full list of today's clemency recipients.

Contrasting perspectives on progressive prosecutors

There has been a lot of notable discussions of (the potential demise of) the "progressive prosecutor movement" in the weeks since Election Day.  In the last couple days I have seen these two notable lengthy pieces on topic providing quite distinct perspectives:

From Jim Gerrity at National Review, "Progressive Prosecutors’ Record of Unmitigated Failure."  A snippet:

Everyone will readily concede that prosecutorial decisions and philosophy aren’t the only factor in a jurisdiction’s crime rates.  But it’s laughable to contend, as CAP and that University of Toronto study do, that they make no difference at all.  And the citizenry in several of America’s big cities that are beset by terrible crime rates vehemently disagrees with the CAP perspective.

From John Pfaff at Prisons, Prosecutors, and the Politics of Punishment, "Reform Prosecutors Do Not Increase Crime: What the Data Tells Us." A snippet:

The macro studies consistently find no evidence that electing a reform prosecutor leads to more violent crime (although studies are not always looking at the same violent offenses). One study finds a non-trivial increase in property crimes (of about 7%), but most other studies seem to find little to no impact on property crimes either. Papers are here.

The micro studies indicate that less aggressive responses tend to lead to lower rates of recidivism, and this happens both in studies that limit themselves to lower-level misdemeanors and those that include more-serious felonies. One paper has an intriguing result about the risks of non-incarceration, which may in some cases increase the risk of reoffending (due to the stigma of a record without the confinement of prison). It is worth noting, though, that there are very few micro studies out there yet. Papers are here.

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

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

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

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

"Prohibition Constitutionalism"

The title of this post is the title of this review essay recently appearing on SSSRN authored by Matthew B. Lawrence. Here is its abstract:

This Review Essay describes and applauds David Pozen’s book, The Constitution of the War on Drugs, and offers its own intervention.  Scholars have traced the failed addiction policies exemplified by the “war on drugs” to underlying root causes including racism, politics, and moral stigma.  The core contribution of The Constitution of the War on Drugs is to show that constitutional law is an additional such root cause.  The book does so by unearthing ways the Constitution has accepted and abetted carceral addiction policy.  In pointing to constitutional law as a root cause of the drug war and, so, as a potential site for contestation against carceral drug policy, the book connects criminal law, health law, and constitutional law in ways that should enrich all three fields.

For all the book’s strengths, however, The Constitution of the War on Drugs does not go far enough in mapping the interaction of constitutional law and addiction policy that it uncovers.  In surveying “near misses” during the twentieth century when constitutional litigation came close to invalidating prohibitionist drug policies, the book limits its study to constitutional law’s negative potential to impede carceral drug policies.  This prohibitionary approach to constitutionalism leaves unaddressed and unrecognized important ways that constitutional law shapes which addiction policies are enacted in the first place — ways constitutional law influences the repeated choice of carceral drug policy over more effective evidence-based policies such as investments in treatment, housing, and social supports.  Doing so misses promising contemporary sites of contestation and risks playing into President Nixon’s brilliantly pernicious conceptual framing of addiction policy as a punitive war on drugs.  The book’s approach also risks bolstering contemporary anti-regulatory trends illustrated by ongoing attacks on the administrative state.  In further developing the interaction of constitutional law and addiction policy that The Constitution of the War on Drugs uncovers, future scholars should consider thick, affirmative conceptions such as Roberts’s freedom constitutionalism or Parmet’s public health constitutionalism.

Prior related post:

• Latest episode of "Drugs on the Docket" podcast engages with David Pozen and his new book, The Constitution of the War on Drugs 

"The Effect of Outside Temperature on Criminal Court Sentencing Decisions"

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

Climate change has stimulated growing interest in the influence of temperature on cognition, mood and decision making. This paper is the first investigation of the impact of temperature on the outcomes of criminal court cases.  It is motivated by Heyes and Saberian (2019, AEJ: Applied Economics), who found strong effects of temperature on judges' decisions in immigration cases, drawing on 207,000 cases.  We apply similar methods to analyse 2.8 million criminal court cases in the Australian state of New South Wales from 1994 to 2019.  Most of the estimates are precise zeros.  We conclude that outcomes of criminal court cases (which are far more prevalent globally than immigration cases) are not influenced by fluctuations in temperature, an unsurprising but reassuring result.

Crack is still wack for thousands in Florida still carrying unconstitutional convictions from 1980s

This recent AP story, headlined "Florida prosecutor seeks to clear records of people charged with buying police-made crack in 1980s," highlights how remedies for unconstitutional convictions can often be a very long time in coming (if they come at all).  Here are the details:

A Florida prosecutor says he will seek to vacate as many as 2,600 convictions of people who bought crack cocaine manufactured by the Broward County Sheriff’s Office for sting operations between 1988 and 1990.

The Florida Supreme Court ruled in 1993 that people couldn’t be charged in cases where the sheriff’s office made the crack cocaine and undercover deputies then sold it to buyers who were arrested and charged.

Broward County State Attorney Harold F. Pryor said Friday that while his office was reviewing old records, prosecutors realized that many people may still have criminal charges or convictions on their records because of the sting operation. “It is never too late to do the right thing,” Pryor said in a statement.

It’s just one example of how the crack cocaine epidemic of the 1980s and early 1990s led to harsh police practices and heavy criminal penalties. Some people may have been convicted of serious felonies because they bought drugs within 1,000 feet (300 meters) of a school. Conviction under that law required at the time that defendants be sentenced to at least three years in prison.

“They were arresting people not for selling, but for purchasing,” Ed Hoeg, a defense lawyer, told the Sun Sentinel of Fort Lauderdale. At the time, Hoeg was a public defender who represented Leon Williams, whose appeal led to the state Supreme Court outlawing the practice. “They had detention deputies posing as dealers,” Hoeg said. “They would sell it, and these poor people who were addicts were buying it. And they were selling it within 1,000 feet of schools, so the penalties would be greater.”

The sheriff’s office said at the time that it began making crack because it didn’t have enough of the seized drug to use in its sting operations and because it didn’t have to later test the cocaine content of crack made by a sheriff’s office chemist. “We find that the law enforcement’s conduct here was so outrageous as to violate Florida’s due process clause,” the state Supreme Court wrote in the decision....

The review will take “a considerable amount of time,” Pryor said. He said his office will contact people who may be affected.

Prez-Elect Trump reiterates pledge to grant Jan 6 pardons on "first day" in office

Prez-Elect Donald Trump conducted a new interview during which, according to this NBC News piece, he discussed his pardon plans for January 6 defendants.  Here is the start of the article:

President-elect Donald Trump said he is looking to issue pardons to his supporters involved in the attacks on the U.S. Capitol on Jan. 6 as soon as his first day in office, saying those incarcerated are “living in hell.”

Trump’s comments, the most sweeping he’s made since winning the 2024 election, came during an exclusive interview with “Meet the Press” moderator Kristen Welker. He also said that he will not seek to turn the Justice Department on his political foes, and warned that some members of the House committee that investigated the Jan. 6 attack “should go to jail.”  On his first day in office, Trump said he will bring legal relief to the Jan. 6 rioters who he said have been put through a “very nasty system.”

“I’m going to be acting very quickly. First day,” Trump said, adding later about their imprisonment, “they’ve been in there for years, and they’re in a filthy, disgusting place that shouldn’t even be allowed to be open.”  Trump said that there “may be some exceptions” to his pardons “if somebody was radical, crazy” and pointed to some debunked claims about anti-Trump elements and law enforcement operatives infiltrating the crowd.

At least 1,572 defendants have been charged and more than 1,251 have been convicted or pleaded guilty in the attack. Of those, at least 645 defendants have been sentenced to periods of incarceration ranging from a few days to 22 years in federal lockup.  There are roughly 250 people currently in custody, most of them serving sentences after being convicted. A handful are being held in pretrial custody at the order of a federal judge.

Trump didn’t rule out pardoning individuals who had pleaded guilty, including when Welker asked him about those who had admitted to assaulting police officers. “Because they had no choice,” Trump said.

Asked about the more than 900 others who had pleaded guilty in connection to the attack but were not accused of assaulting officers, Trump suggested that they had been pressured unfairly into taking guilty pleas. “I know the system.  The system’s a very corrupt system,” Trump said. “They say to a guy, ‘You’re going to go to jail for two years or for 30 years.’ And these guys are looking, their whole lives have been destroyed. For two years, they’ve been destroyed.  But the system is a very nasty system.”

The crimes that have been charged range from unlawful parading to seditious conspiracy in the sprawling Jan. 6 investigation that included rioters captured on video committing assaults on officers, and who admitted under oath that they’d done so.

If Trump makes good on this pledge to grant pardons to the vast majority of Jan 6 defendants on this first day, he will set all sorts of modern clemency records.  These clemency statistics assembled by DOJ's Office of the Pardon Attorney show it has been half a century since a President has granted more than a few pardons at the start of a term in the Oval Office, and it has been a full century since a President had done more than 1200 pardons in his entire tenure.  (Notably, these DOJ data leave out mass clemencies like Prez Biden's mass marijuana possession pardons; if the Trump does Jan 6 pardons en masse, I am not quite sure how best to run the numbers.)

And, of course, as I have covered in recent posts here and here, lots of folks are urging Prez Biden to go big on clemency in his final weeks in office.  Biden statement in support of his most recent clemency decision suggests, when it comes to his child, he largely agrees with Trump's view on the "very nasty" federal criminal justice.  But since I dooubt, especially in this arena, that Biden is capable of "acting very quickly," we may have to keep waiting to find out if any other people's children might Biden's grace.

Excitingly, any and everyone interested in these issues still has time to register for the online event, "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power," being hosted on December 10 by the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  More details and a list of panelist can be found on this event page.  

A few of many recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants 
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations 
• Another report on how pardon possibilities are impacting Jan 6 prosecutions 
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

SCOTUS grants cert to address whether/when amended habeas petition is a second application

The Supreme Court on Friday arfternoon granted cert via this order list in two new matters.  One case, Rivers v. Lumpkin, involves an issue of modern federal habeas procedure.  Here is how this cert petition, filed on behalf of a Texas prisoner, presented the question:

Under the federal habeas statute, a prisoner “always gets one chance to bring a federal habeas challenge to his conviction,” Banister v. Davis, 590 U.S. 504, 509 (2020). After that, the stringent gatekeeping requirements of 28 U.S.C. § 2244(b)(2) bar nearly all attempts to file a “second or successive habeas corpus application.” Here, petitioner sought to amend his initial habeas application while it was pending on appeal. The Fifth Circuit applied § 2244(b)(2) and rejected the amended filing.

The circuits are intractably split on whether § 2244(b)(2) applies to such filings.  The Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits hold that § 2244(b)(2) categorically applies to all secondin-time habeas filings made after the district court enters final judgment.  The Second Circuit disagrees, applying § 2244(b)(2) only after a petitioner exhausts appellate review of his initial petition.  And the Third and Tenth Circuits exempt some second-in-time filings from § 2244(b)(2), depending on whether a prisoner prevails on his initial appeal (Third Circuit) or satisfies a seven-factor test (Tenth Circuit).

The question presented is: Whether § 2244(b)(2) applies (i) only to habeas filings made after a prisoner has exhausted appellate review of his first petition, (ii) to all second-in-time habeas filings after final judgment, or (iii) to some second-in-time filings, depending on a prisoner’s success on appeal or ability to satisfy a seven-factor test.

Another report on how pardon possibilities are impacting Jan 6 prosecutions

Politico has this new article providing another account of how Prez-Elect Donald Trump's Jan 6 pardon pledges are echoing through Jan 6 criminal cases. The full title of the piece captures its themes: "Judges push back as Trump’s return sparks defiance from Jan. 6 defendants: In multiple sentencings Friday, judges saw firsthand how attentively some Jan. 6 perpetrators heed their reprimands. (Which is to say, not at all.)" Here are some excerpts:

A vibe shift sparked by Trump’s imminent takeover of Washington has begun seeping into the marble halls of the federal courthouse, where nearly 1,600 members of the Jan. 6 mob have faced charges. On Friday, at four sentencing hearings, judges appointed by presidents of both parties wrestled with their warnings about the fragility of democracy while bracing for Trump to make good on his promise to pardon many of those they say perpetrated one of the greatest domestic threats in American history.

“The lie that the [2020] election was stolen is still being disseminated,” said U.S. District Judge Amy Berman Jackson, who also excoriated efforts by some Jan. 6 defenders to label the perpetrators “hostages” or “victims” of an abusive government. Jackson didn’t mention Trump by name but said storming the Capitol “at the direction of a disappointed candidate” was “the definition of tyranny and authoritarianism.” Far from dying down over the past four years, the Barack Obama-appointed jurist said at a sentencing hearing Friday for a member of the Proud Boys: “The volume’s getting turned up.”

Down the hall, one of the most prominent members of the Jan. 6 mob — Texas’ Guy Reffitt — was doing just that, lambasting the “bullshit” he said was coming from the judge in his own case, Trump-appointed U.S. District Judge Dabney Friedrich.

Reffitt, who has been in prison since early 2021, said he had been “in my feelings” for the last four years as a result of Biden’s victory. “Trump is now going to be the president of the United States,” Reffitt said as he attacked the case against him in an expletive-laden tirade. “I’m out of my feelings.”

Friedrich, who re-sentenced Reffitt to nearly seven years in prison, worried that he had become increasingly entrenched in his lack of remorse for his role at the vanguard of the riot. Reffitt, she said, “does seem to revel in his status” as a hero to the small but vocal group of Jan. 6 defenders and “loves the J6 family dynamics.”...

For many Jan. 6 defendants and their allies, the judges’ admonitions are increasingly falling flat. Many of them, emboldened by Trump’s rise, openly shrug the warnings off. As Reffitt walked out of the courtroom to be returned to prison, Brandon Fellows — who served most of a 3.5-year sentence for surging into the Capitol and putting his HTML feet on a senator’s private desk — called to him: “Guy, you’ll be out soon.”

Other defendants, too, have begun to feel the momentum swing in their favor, often trading sentiments of remorse in favor of defiance and confidence that Trump will soon swoop in to spare them any prison time.

A few recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants 
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations 
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

"Major-Questions Lenity"

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

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

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

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

Are "pragmatic prosecutors" now the next big thing?

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

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

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

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

Federal judge rejects latest plea deal between Boeing and the US government

As reported in this CNN piece, a "federal judge on Thursday rejected a plea agreement between Boeing and the US government after the company said it would plead guilty to deceiving the Federal Aviation Administration ahead of two fatal 737 Max crashes." Here are the basics:

The rejection by US District Court Judge Reed O’Connor citied his problems with the selection process for a independent monitor required in the plea deal to oversee safety and quality improvement at Boeing.

Boeing agreed in July to plead guilty to one charge of conspiracy to defraud the United States. Under the plea agreement it would pay up to $487 million in fines — a fraction of the $24.8 billion that families of victims of the two crashes want the company to pay.

O’Connor had problems with the idea that the Justice Department, not the court, would have approval over the selection of the monitor and how Boeing had performed under an earlier settlement with the Justice Department in January 2021 over the same charges.  That agreement had deferred prosecution until the safety issues were again raised by a door plug blowing off a 737 Max plane flown by Alaska Airlines in January.

“It is fair to say the government’s attempt to ensure compliance has failed,” O’Connor wrote in his opinion. “At this point, the public interest requires the court to step in. Marginalizing the court in the selection and monitoring of the independent monitor as the plea agreement does undermines public confidence in Boeing’s probation.”  One of O’Connor’s problems with the plea agreement was that the Justice Department had said Boeing and Justice would have to consider race when hiring the independent monitor. But he also was upset that the court did not have a role in the selection process....

“Rejection of the plea deal is an important victory of the families in this case and, more broadly, crime victims’ interests in the criminal justice process,” said Paul Cassell, attorney for family members of crash victims, in a statement. “No longer can federal prosecutors and high-powered defense attorney craft backroom deals and just expect judges to approve them. Victims can object – and when they have good reasons for striking a plea, judges will response.”

“This order should lead to a significant renegotiation of the plea deal to reflect the 346 deaths Boeing criminally caused and put in place proper monitoring of Boeing to ensure that it never again commits a crime like this in the future,” he added.

The full 12-page order from Judge O'Connor is available at this link.

Prior related post:

• Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?
• Crash victims' families formally object to proposed Boeing plea deal 

Lots of news and new resources from the US Sentencing Commission

Via email yesterday afternoon, I received news of a number of new items coming from the US Sentencing Commission.  Drawing text and links from the email, here are just some of items with a few links:

Notice of Public Meeting

The Commission has scheduled a public meeting for Thursday, December 19, 2024 at 2:00 pm (EST)he 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 livestream and record this event.

The agenda follows:

• Vote to Adopt August 2024 Meeting Minutes
• Report from the Chair
• Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment....

Preliminary FY24 Fourth Quarterly Data Report 

The Commission released its first full look at the FY24 federal sentencing caseload.

Preliminary Data Highlights

• In FY24, 61,137 individuals were sentenced federally — representing a decrease from the previous fiscal year.
• Nearly equal proportions of individuals were sentenced for a drug (30.0%) or immigration (29.7%) offense.
• Methamphetamine was the most common drug involved in federal drug offenses (45.8%) followed by fentanyl (21.8%) and powder cocaine (19.4%). 

2023 Firearms Amendments

Commission staff break down the 2023 changes and additions to the firearms guideline, including new offenses and increased penalties. They answer frequently asked guideline questions about proliferation of firearm switches and auto sears, and more.

Robbery Primer

This primer offers an overview of statutes, sentencing guidelines, and case law related to selected federal robbery offenses.

"Compassionless Plea Bargaining"

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

Too often, the guilty plea hearing process practiced in our federal courts fails to adequately ensure the validity of a defendant's change of plea decision.  Rather than engage in colloquies that are sufficiently in-depth and truly aimed at ascertaining voluntariness and defendant comprehension, critical details are frequently glossed over, and defendant guilty pleas are accepted without meaningful inquiry.

While academics have skillfully critiqued the Sixth Amendment and its trial-focused provisions, comparatively scant focus has been expended on the equally, if not more, critical change of plea hearing.  Compassionless Plea Bargaining seeks to fill this gap with its focus on a recent controversy that threatened to engulf the Biden Administration's Department of Justice into an unfortunate — and arguably embarrassing — controversy.

In December 2018, President Donald Trump signed into law the First Step Act.  Designed primarily to address the nation's mass incarceration crisis, one of its more overlooked features was a provision that addressed sentencing modification.  Commonly referred to as compassionate release, the Act sought to ease the ability of defendants to obtain a modification of their sentence in the event of an extraordinary life circumstance.  During the COVID-19 pandemic, as the virus spread rapidly through correctional facilities, compassionate release requests predictably skyrocketed — and so did the workload of federal prosecutors tasked to respond to these motions.  As a result, many U.S. Attorney's Offices included provisions in plea agreements requiring defendants to forgo their compassionate release rights under the Act in exchange for the concessions offered by the government.  A brewing controversy ensued, with critics, including the National Association of Criminal Defense Lawyers, arguing that the government was leveraging its substantial negotiating power, and defendants were often agreeing to such waivers in the absence of a full awareness of the attendant consequences.  In response, Attorney General Merrick Garland discontinued the practice in March 2022.  However, the reprieve is likely to be short-lived, as future attorneys general will almost certainly resuscitate the practice.

The byproducts of a guilty plea are varied, deeply consequential, and, as evidenced in the compassionate release context, can even be fatal.  This Article explains why federal change of plea hearings too often fail to adequately assess the knowledge and voluntariness underlying a defendant's guilty plea and offers a proposal for reform.