Sentencing Law and Policy

Any recommendations for Amendments needing SCOTUS attention on this Constitution Day?

In this post on this day 15 years ago, I used the occasion of Constitution Day to encourage discussion of parts or provisions of the Constitution that seem under-appreciated.  That post and its comments were amusing to review for various reasons, and I figured today might call for a variation on that theme.  Specifically, with the Supreme Court's new Term just a few weeks away, I wonder if anyone might be eager to flag some Amendments that they wish SCOTUS would give some more attention.

As I have noted before, in recent X/Twitter postings, Orin Kerr has bemused and on-going hand-wringing about the fact that the Supreme Court has now completed "three straight Terms of deciding no Fourth Amendment cases."  To make him happy and for other good reasons, I would certainly like to see SCOTUS get back to giving attention to various aspects of the Fourth Amendment's application in our modern digital age.  And, of course, regular readers know that the Fifth and Sixth Amendment issues implicated by acquitted conduct sentencing are matters that I consider long overdue for more Supreme Court attention.  The Eighth Amendment got some attention in the Grants Pass case last Term, but in a quirky setting, and I can never get enough of the Justices' explanation of the limits of the Cruel and Unusual Punishments Clause.

In a post here a few months ago, I noted Kent Scheidegger's insightful lament about the "high court’s apparent lack of interest in the constitutional criminal procedure cases that once made up a large part of its docket."  In that post, I set out my theory that some of the conservative current Justices may be fearful about where their originalist inclinations could take them in the constitutitional criminal procedure cases that used to be a mainstay of the SCOTUS docket.  The quick "evolution" from Bruen to Rahimi, as well as the continued churn in lower courts over the new originalist turn in Second Amendment jurisprudence, is a clear indication that forging new originalist jurisprudence in the criminal law arena creates considerable uncertainty (and fuels all sort of new litigation by convicted persons).  That also proved the (still on-going) story surrounding the originalist Sixth Amendment turns from Crawford and Blakely two decades ago.

With the long conference just weeks away, I hope there are all sorts of juicy constitutional criminal cases in the works for the coming SCOTUS Term.  Especially for a law professor, it is always "good for business" when various constitutional amendments get some more attention.  But perhaps folks might have thoughts in the comments about where they would like to see the Justices' focus more time and attention.

A couple older and newer prior related posts:

• Seeking input on the most under-appreciated part of the US Constitution
• Not quite original(ist) musings on SCOTUS showing little interest in constitutional criminal procedure cases 

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

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

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

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

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

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

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

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

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

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

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

"Scrutinizing Sentencing"

The title of this post is the title of this notable new essay authored by Christopher Slobogin which was just posted to SSRN (and seems quite well timed right before we are to celebrate Constitution Day). Here is its abstract:

Physical liberty is the most fundamental of all constitutional rights.  Yet the Supreme Court has continued to employ rational basis review of criminal sentencing rather than ensure that prison sentences are narrowly tailored to meet a compelling state interest.  Properly scrutinized, mandatory sentencing regimes, extremely long sentences, and boilerplate parole and probation conditions would be unconstitutional.

"Plea Agreements and Suspending Disbelief"

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

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

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

"Beyond Problem-Solving Courts"

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

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

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

"An Empirical Exploration of a Jury Veto"

The title of this post is the title of this new paper available via SSRN authored by Stephen Henderson, Vanessa Edkins and Matthew Jensen. Here is its abstract:

Among the many contemporary dissatisfactions with American criminal justice are longstanding concerns relating to the scarcity of jury trials and the resulting lack of democratic oversight and control in the adjudicative process.  A novel solution has recently been proposed in the form of a ‘jury veto’: perhaps a jury could be empaneled, prototypically if not exclusively by defense request, that would be empowered to select between the judicially-imposed sentence and a prosecutorial and defense alternative.

We conduct the first empirical exploration of such a structure and find reason to believe it could lessen the disconnect between the American framing vision of citizen control and the current reality.  In particular, we find sentencing preferences different from prevailing norms and resilient to the form of conviction (i.e., guilty plea versus trial verdict), but predictably influenced by anchoring, framing, and adjustment. This suggests a veto could improve criminal adjudications but will require careful structure, and we describe how further study of both citizen pools and legal actors could continue to probe this novel device.

Highligthing again highlights of federal resentencing and broader second-look sentencing issues

In this recent post, I noted Adam Liptak's latest Sidebar column discussing federal compassionate release issues in conjunction with Judge Frederic Block's new book, "A Second Chance: A Federal Judge Decides Who Deserves It."  I was pleased to see today that David Lat now has this new substack post which gives even more attention to the book and Judge Block's work under the headline "This Federal Judge Calls For Giving Prisoners A Second Chance: Judge Fred Block, 90, continues to speak out about important issues facing the criminal-justice system."  I highly recommend the full post (including the footnotes), and here are a few excerpts:

What are the requirements for granting [a sentencing reduction under the First Step Act], known as “compassionate release”? The critical one is that the judge must find “extraordinary and compelling reasons” for doing so.

And what can constitute “extraordinary and compelling reasons”? It’s currently the subject of extensive litigation in district and circuit courts — which have issued conflicting rulings on multiple issues, making it likely that the U.S. Supreme Court will intervene....

If and when the justices get involved, I have a reading recommendation for them: A Second Chance: A Federal Judge Decides Who Deserves It.  In this engaging and enlightening new book, Judge Frederic Block of the Eastern District of New York presents readers with six defendants who filed motions for compassionate release in his court.  He asks us to reflect on whether we would reduce their sentences—then reveals how he ultimately ruled....

But as discussed in A Second Chance, and as Judge Block mentioned again when we spoke, federal prisoners constitute only about 10 percent of the total prison population in the United States.  The remaining 90 percent are in state prisons and local jails.  Judge Block believes that they too should be eligible for compassionate release — and describes his book as “my clarion call to all the states to follow Congress’s lead and enact their own First Step acts.”

The recommendation that all states create second-look sentencing mechanisms is, in my view, very well founded.  And I have been pleased to see various discussions of such a possibility in a few recent media pieces:

From Michigan, "Michigan Coalition Calls for Second Look Legislation to Alleviate Staffing Shortages in State Prisons"

From Nevada, "Committee to sponsor ‘second look’ bill that allows for reduction of lengthy prison sentences"

From New York, "After 17 Years in Prison, I’m a Different Person. Do Cases Like Mine Deserve a Second Look?"

Reviewing some elected offices that impact local, state and federal criminal justice system

Prison Policy Initiative has this new election-season briefing about criminal justice official titled "Mass incarceration is on the ballot: A guide to how 19 offices you may be asked to vote on can help end mass incarceration in America."  Here is how it gets started:

Election Day is right around the corner. While presidential campaigns get most of the attention from the news media, many lesser-known down-ballot races can have a much more dramatic impact on criminal legal system reform in America.

For voters interested in ending mass incarceration, we’ve put together a guide to the most common offices for which they will cast their ballots this November.  We also explore how those offices can make decisions to reduce the number of people behind bars, improve conditions in prisons and jails, and help turn the page on America’s failed experiment with mass incarceration.

It’s worth recognizing that there are significant differences in what an office might be called and its exact responsibilities from state to state and city to city, so readers should keep in mind that this might not be a perfect match for their area.  Additionally, it would be impossible to list all of the complex and far-reaching ways some offices influence the criminal legal system.  This guide focuses on the most common and consequential offices and responsibilities in this realm and is not intended to be all-encompassing.  With this guide, we aimed to give people a starting point for their research to better understand the roles and powers of the offices they’ll be asked to vote for.

Readers should use this guide to evaluate their candidates for office, press them to take clear stands on how they’ll use their position to improve the criminal legal system if elected and hold them accountable for those commitments once they take office.

For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served

If anyone wants a good example of the federal sentencing guidelines not doing an effective job of guiding a federal sentencing judge, consider the specifics of the upcoming high-profile sentencing of Caroline Ellison.  This CNBC story about a sentencing filing provides some of the background, as well as helpful links to some key court documents:

Lawyers for Caroline Ellison, the star witness in the prosecution of FTX founder Sam Bankman-Fried, are recommending no prison time for their client’s role in the implosion of the crypto empire that was run by her former boss and ex-boyfriend.

In a court filing Tuesday night, the attorneys said that, at most, Ellison should be sentenced to time served and supervised release because of her swift return to the U.S. from FTX’s Bahamas headquarters in 2022 and her choice to voluntarily cooperate with the U.S. attorney’s office and financial regulators in helping them understand what went wrong at FTX and sister hedge fund Alameda Research. 

Judge Lewis Kaplan, who presided over Bankman-Fried’s case, cited Ellison’s testimony when he decided in March to sentence the FTX founder to 25 years behind bars.  Ellison, who ran Alameda Research, agreed to a plea deal in December 2022, a month after FTX spiraled into bankruptcy. Unlike Bankman-Fried, who was convicted of all seven criminal fraud charges against him, Ellison pleaded guilty to conspiracy and financial fraud charges, rather than go to trial.

The Tuesday filing also refers to the recommendation of the court’s Probation Department that Ellison be given a sentence of “time served with three years of supervised release” as a credit to her “extraordinary cooperation with the government” and “her otherwise unblemished record.”  Lawyers added that the department’s presentence report, which referenced numerous character testimonials speaking to Ellison’s ethics and integrity, also recommended that she not be fined.  “Caroline poses no risk of recidivism and presents no threat to public safety,” the filing says. “It would therefore promote respect for the law to grant leniency in recognition of Caroline’s early disclosure of the crimes, her unmitigated acceptance of responsibility for them, and — most importantly — her extensive cooperation with the government.”

In the filing, FTX CEO John Ray, who has been guiding the crypto firm through bankruptcy proceedings, describes Ellison’s cooperation as “valuable” in helping his team protect and preserve “hundreds of millions of dollars” in assets.  He added that she has worked with his advisors to provide information regarding private keys to cryptocurrency wallets that contain “estate assets, DeFi positions, FTX exchange internal account information, the use of third-party exchanges for pre-petition trading, and pre-petition auditing practices.”

The 67-page document describe large swaths of Ellison’s life, starting from her earliest days in Boston and stretching into her protracted and troubled romance with Bankman-Fried. In that time, she “moved around the globe at his direction, first to Hong Kong and later the Bahamas,” and “worked long, stressful, Adderall-fueled hours,” the filing says.  Bankman-Fried forced Ellison into a sort-of isolation, culminating in her moral compass being “warped,” the lawyers say. At his direction, Ellison helped “steal billions,” all while living “in dread, knowing that a disastrous collapse was likely, but fearing that disentangling herself would only hasten that collapse.”

“Bankman-Fried convinced her to stay, telling her she was essential to the survival of the business, and that he loved her,” all “while also perversely demonstrating that he considered her not good enough to be seen in public with him at high-profile events,” the filing says.

Though I have only had a chance to briefly scan Ellison's sentencing memorandum, I noticed it included no objection to the calculated guideline range, which produced "the Guidelines sentence of life imprisonment, reduced to the statutory maximum of 1,320 months" (110 years).  As guideline mavens know, the massive "loss" in this case drove Ellison’s guideline calculation to produce a recommended LWOP sentence; as federal sentencing mavens know, pleading guilty and providing "extraordinary cooperation with the government" is one critical way a defendant can seek to get a judge to ignore the guidelines at sentencing.

It will be interesting to see if the feds ask for any prison time here, but I am quite sure they will not be urging Judge Kaplan to follow the guidelines.  After all, the feds urged a sentence well below LWOP even for Sam Bankman-Fried even though his guideline calculation was literally "off the grid" and had the highest calculated offense level I had ever seen.  White-collar prosecutors and defense attorneys have long known, of course, that guideline calculations in high-dollar, white-collar cases often amount to a kind of Kabuki theater amounting to little of real substance.  That reality is surely on display, yet again, in the FTX sentencings.

Some prior related posts about SBF's sentencing

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds

"Fines, Forfeitures, and Federalism"

The title of this post is the title of this recent article I just came across via SSRN and authored by Jessica Asbridge. Here is its abstract:

Fines are ubiquitous in modern society, and they are imposed for both serious crimes and minor civil wrongs.  The U.S. Supreme Court recently recognized that the Constitution’s Excessive Fines Clause applies to the states, but that decision raises previously unexplored questions as to how to enforce the Clause’s protections in the states.  A key question is what role, if any, federalism should play in crafting doctrinal rules that apply the Clause’s protections to state and local fines and related property forfeitures.  This Article is the first to accord in-depth treatment to that important question.

The extent to which federalism principles should apply does not have an immediate and obvious answer.  On the one hand, federalism plays a significant role in the Court’s jurisprudence on the Cruel and Unusual Punishment Clause.  The Court therefore generally takes a highly deferential approach in reviewing sentences of imprisonment.  Lower courts have applied that same deferential review in the context of the Excessive Fines Clause.  On the other hand, fines and forfeitures are unlike other forms of punishment — such as prison — because they are often used as a revenue source for state and local governments, creating a conflict of interest for state and local decision-making bodies.

To address this conundrum, this Article makes the novel argument that the Court should look to the exactions doctrine under the Takings Clause, which often implicates similar concerns of government self-interest and overreaching. Exactions and excessive fines are conceptually similar, but scholars thus far have overlooked the close relationship between them.  The exactions doctrine gives minimal weight to federalism concerns, and it applies a heightened-scrutiny standard that is well suited to the excessive fines context.  Indeed, differences between federal practice and state and local practices as to fines suggest that discretionary state and local fines should be subject to closer constitutional scrutiny than federal fines.  As a recent example illustrates, such heightened scrutiny would ensure that the Excessive Fines Clause is not merely a parchment barrier, while still accounting for variations between states and localities in terms of their communities’ values and needs.

"Justice Theater in the Criminal Law Curriculum"

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

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

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

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

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

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

Former Prez Trump goes all in on marijuana reform ... perhaps as a pregame strategy for big Prez debate

I have been covering over at my other blog statements by former Prez Donald Trump about marijuana reform: in this post nine days ago, I noted the social media post seemingly supportive of Florida's marijuana legalization ballot initiative; in this post last week, I noted further comments suggesting his likely support for federal rescheduling.  Now, via this latest social media posting from late last night, Trump has made it quite clear that he is all-in on both state and federal marijuana reforms: 

As a Floridian, I will be voting YES on Amendment 3 this November.  As President, we will continue to focus on research to unlock the medical uses of marijuana to a Schedule 3 drug, and work with Congress to pass common sense laws, including safe banking for state authorized companies, and supporting states rights to pass marijuana laws, like in Florida, that work so well for their citizens.

These policy positions are quite interesting and significant in their own right, but it is also notable that Trump starts his latest social media posting of his pro-reform positions with this notable preamble: "As I have previously stated, I believe it is time to end needless arrests and incarcerations of adults for small amounts of marijuana for personal use."  This sentiment reinforces my prior stated view that Trump, ever the populist, understands that decriminalizing marijuana for personal use is very popular.  But it also now has me thinking that Trump is gearing up to attack VP Kamala Harris at their coming debate over her record as a local prosecutor jailing persons for low-level marijuana offenses.  

Of course, there is a notable history of Harris being attacked on her marijuana record by Tusli Gabbart back in 2019.  This new NBC News article talks about that moment and how "Gabbard won loud, raucous cheers and applause" after stating that Harris "put over 1,500 people in jail for marijuana violations and then laughed about it when she was asked if she ever smoked marijuana."   And, of course, Gabbart has recently endorsed Trump and is apparently part of his debate-prep team:

Asked about Gabbard’s involvement in debate preparations — such as they are in Trump world — a Trump campaign official said she had been helpful getting Trump to think about the pivot from attacking Harris to highlighting his policies or what he would do differently.  That included talking through how to take things one step beyond the attack lines he gives at rallies into cohesive debate answers.  The campaign official said the Trump team had been trying to get Gabbard involved for a while. “Tulsi Gabbard whipped Kamala Harris’ butt on the debate stage,” Trump spokeswoman Karoline Leavitt said. “She’s offering her advice to President Trump ahead of Tuesday’s debate.”

Interesting times, and likely also reflective of the fact that marijuana reform is especially popular with many young voters that Trump seems eager to court.  And, for anyone thinking more broadly about criminal justice issues and the coming Prez debate, the Sentencing Matters Substack team has a new post for you: "Presidential Debate: Agreements Call for Deeper Probing on Crime and Punishment."

Some recent related posts:

• Former Prez Trump articulates forceful support for state marijuana legalization, federal rescheduling and banking reforms
• Former Prez Trump suggests he is supportive of marijuana legalization in Florida and elsewhere
• Does former Prez Trump's praise for medical marijuana suggest he would robustly support federal marijuana rescheduling?
• Ever the criminal justice reform populist, former Prez Trump signals support for marijuana legalization in Florida and elsewhere 

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

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

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

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

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

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

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

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

Former Prez Trump's state sentencing date push to week of Thanksgiving

As reported in this New York Times piece, the "judge overseeing Donald J. Trump’s criminal case in Manhattan postponed his sentencing until after Election Day, a significant victory for the former president as he seeks to overturn his conviction and win back the White House."  Here is more from the start of the article:

In a ruling on Friday, the judge, Juan M. Merchan, rescheduled the sentencing for Nov. 26. He had previously planned to hand down Mr. Trump’s punishment on Sept. 18, just seven weeks before Election Day, when Mr. Trump will face off against Vice President Kamala Harris for the presidency.

While the decision will avert a courtroom spectacle in the campaign’s final stretch, the delay itself could still affect the election, keeping voters in the dark about whether the Republican presidential nominee will eventually spend time behind bars.

It is unclear whether sentencing Mr. Trump in September would have helped or harmed him politically; his punishment could have been an embarrassing reminder of his criminal record, but could have also propelled his claims of political martyrdom.

Justice Merchan’s decision came at the request of Mr. Trump, who had asked to delay the sentencing until after the election, partly so he had more time to challenge his conviction. Prosecutors working for the Manhattan district attorney, Alvin L. Bragg, who brought the case, had deferred to the judge, paving the way for at least a brief postponement.

UPDATE: I have now seen this letter released by Justice Merchan to explain his adjuornment decision. Here are a few key passages:

'This matter is one that stands alone, in a unique place in this Nation's history, and this Court has presided over it since its inception — from arraignmcnt to jury verdict and a plenitude of motions and other matters in-between.  Were this Court to decide, after careful consideration of the Supreme Court's decision in Trump, that this case should proceed, it would be faced with one of the most critical and difficult decisions a trial court judge faces — the sentencing of a defendant found guilty of crimes by a unanimous jury of his peers....

Unfoftunately, we are now at a placeirn time that is fraught with complexities rendering the requirements of a sentencing hearing, should one be necessary, difficult to execute.  Thus, in accordance with certain of the grounds submitted by Defendant and the reasons for adiournment provided by the People coupled with the unique time frame this matter currently finds itself in, the decision on the CPL § 330.30 motion and the imposition of sentence will be adjourned to avoid any appearance — however unwarranted — that the proceeding has been affected by or seeks to affect the approaching Presidential election in which the Defendant is a candidate.

On morning of scheduled federal trial, Hunter Biden attempts to enter an Alford plea

As reported here in the Washington Post, "President Joe Biden’s son Hunter tried to resolve his federal tax case Thursday as jury selection was about to begin, offering an Alford plea in which he maintains he is innocent but acknowledges that the prosecution’s evidence would likely result in a guilty verdict." Here is more:

Prosecutors objected to the proposal, which they had not been told of in advance.  U.S. District Judge Mark Scarsi is expected to decide this afternoon whether to adjourn the proceedings until Friday or give the two sides more time to come to agreement.

“I want to make crystal clear: the U.S. opposes an Alford plea ... Hunter Biden is not innocent, he is guilty," Leo Wise, an attorney working for special counsel David Weiss, told the judge. "We came to court to try this case.”

Biden’s attorney, Abbe Lowell, noted that Alford pleas are an option available to all criminal defendants — even though such plea agreements are relatively rare. “All over the U.S. people do this,” Lowell said.  "It’s not that [Hunter Biden] seeks special treatment, but that he gets the same rights as everyone who is charged.”

Weiss charged Biden last year on nine tax-related counts, accusing him of failing to pay at least $1.4 million in federal taxes from 2016 through 2019.  Three charges were felonies and six were misdemeanors.  They include failing to file and pay taxes, tax evasion and filing false tax returns. Weiss separately charged Biden last year with three felony gun counts in Delaware.  A jury convicted Biden on all three charges in June, and he is scheduled for sentencing in November.

The indictments came after a lengthy investigation into Biden’s business dealings while his father was vice president, which Republican lawmakers and former president Donald Trump have tried to use as evidence of corruption within the Biden family. No evidence has surfaced publicly to suggest any wrongdoing by Joe Biden.

The younger Biden has said he has undergone treatment for addiction and is no longer using drugs. While his addiction to crack cocaine was a central theme of his gun trial, the Los Angeles case is expected to delve into Biden’s lavish spending and sex life during that period — much of which he chronicled in his 2021 memoir. Among the accusations laid out in the nine-count indictment is that Biden wrote off money he paid sex workers as business expenses on his tax forms.

An Alford plea, named after a case North Carolina v. Alford, is a way for a defendant to register a formal admission of guilt toward charges they are facing while simultaneously maintaining their innocence. United States attorneys are only able to consent to Alford pleas “in the most unusual of circumstances” and consult with top officials at the Department of Justice before doing so, according to federal prosecution guidelines....

The president, who has made clear he thinks the criminal charges against his son are politically motivated, has said emphatically that he does not plan to pardon Hunter Biden’s criminal convictions. Some of Hunter Biden’s allies hope he will change his mind, however, and issue a pardon after the November election.

Just as Hunter Biden was beginning the day in court, the president was leaving the White House to travel to La Crosse, Wis., for an event touting his administration’s economic policies. From Air Force One, White House press secretary Karine Jean-Pierre reiterated that the president would not pardon or commute Hunter Biden’s sentence. “No," she told reporters on Air Force One. "It is still very much a no.”

UPDATE: This Politico article reports that Hunter Biden's guilty plea was entered this afternoon, though it appears it was just a standard open plea to the charges rather than an Alford plea:

Hunter Biden pleaded guilty Thursday to tax evasion and other tax crimes in an 11th-hour about-face that surprised prosecutors as a trial was about to begin....

The only remaining question now is how much prison time, if any, Biden will face. Shortly after Biden entered his guilty plea, U.S. District Judge Mark Scarsi scheduled his sentencing on the tax charges for Dec. 16. Biden is scheduled to be sentenced in the gun case in November.

Biden faces up to 17 years in prison for the tax charges, though experts say lighter sentences in similar cases are more common. Scarsi will consider Biden’s admission of guilt when he sentences him....

The plea was not part of a plea deal, meaning prosecutors did not promise to recommend a reduced prison sentence....  After Scarsi questioned the Alford arrangement and signaled he might seek further legal arguments on whether he should accept it, Biden conferred with his lawyers and entered a straightforward guilty plea.

<P>As Scarsi questioned Biden about the plea in open court, the judge stressed that he still had the authority to hand down a hefty sentence.  “With regard to sentencing, there’s no guarantees. You understand that?” Scarsi, an appointee of Donald Trump, asked....

Biden is scheduled to be sentenced on Nov. 13 in the gun case, where federal sentencing guidelines recommend up to 21 months in prison, though Biden could receive much less or even no prison time at all.  In the tax case, prosecutors alleged that Biden earned more than $7 million during the years in question and later plotted to fraudulently lower the taxes he owed on that income by falsely labeling trips and other luxury purchases as business expenses. They said he used the money to fund a lavish lifestyle filled with drugs, strippers and sports cars.

Reviewing the state and challenges surrounding former Prez Trump's approaching state sentencing date

The New York Times has this lengthy new piece, headlined "In Deciding When to Sentence Trump, Judge Faces ‘Impossible’ Task," providing a reminder that former Prez Donald Trump is scheduled to be sentenced two weeks from today and all of issues surrounding that reality.  Here are some excerpts:

Justice Merchan has made a steadfast effort to approach the landmark case no differently than hundreds of others he has overseen.  But more than three months after a Manhattan jury convicted Mr. Trump on 34 felony counts of falsifying records to cover up a sex scandal, the veteran judge faces his greatest predicament: He must decide whether to sentence Mr. Trump as planned on Sept. 18 or wait until after Election Day, as Mr. Trump has requested.

Justice Merchan has already agreed to delay the sentencing once, and his upcoming decision — which will be made in the heat of a presidential campaign that has pitted Mr. Trump against Vice President Kamala Harris — will reverberate well beyond his Lower Manhattan courtroom.  The decision could influence not only the election, but American politics for years to come.   And it will almost certainly subject Justice Merchan to partisan second-guessing at a time when the nation’s faith in the judiciary has been shaken by the Supreme Court’s decisions on abortion, guns and other issues, as well as revelations about some of its justices’ own political entanglements....

While Mr. Trump has already been deemed a felon, if Justice Merchan postpones his sentencing until after the Nov. 5 election, the American people will vote without knowing whether Mr. Trump will spend time behind bars.  A delay would also reward the stalling tactics Mr. Trump has deployed throughout the case, and feed the very impression the judge has labored to dispel — that the former president is above the law.  Yet if Justice Merchan, a moderate Democrat who was once a registered Republican, imposes a sentence just seven weeks before Election Day, Mr. Trump will no doubt accuse him of trying to tip the campaign in favor of Ms. Harris....

“Whatever decision Judge Merchan makes will not only be the right decision, it will be driven by nothing other than that which occurred in the context of this case,” said Jill Konviser, a retired judge who has known Justice Merchan for more than 15 years.  “Donald Trump will be treated fairly,” she added.  “Of that, I am 100 percent sure.”...

After finalizing Mr. Trump’s sentencing date, Justice Merchan faces still more delicate decisions.  The judge has promised to rule this month on Mr. Trump’s request to throw out his conviction in light of a new Supreme Court ruling granting presidents some immunity from prosecution.  And, at some point, he will have to actually decide whether to put Mr. Trump behind bars.

Mr. Trump, the first president to become a felon, faces up to four years in prison.  But legal experts believe it is more likely that Justice Merchan will sentence Mr. Trump to a few months in jail or probation.  Whatever his punishment, Mr. Trump is unlikely to be incarcerated before the election.  Even if the judge hands down the sentence on Sept. 18, he could postpone any punishment until after Election Day, or, if Mr. Trump wins back the White House, until after his second term expires.

Nor is Justice Merchan likely to have the final say.  The former president will appeal his conviction to higher courts, and if Justice Merchan sticks with the plan to sentence him on Sept. 18, Mr. Trump will likely appeal that decision as well.

"Prosecution Deferred"

The title of this post is the title of this recent article available on SSRN authored by Shima Baradaran Baughman and Taylor Broadbent. Here is its abstract:

Deferred prosecution agreements (or DPAs) have been used with increasing frequency, particularly in corporate criminal prosecutions, over the past two decades.  By allowing prosecutors to offer a path for rehabilitation without ever having to bring charges against a defendant, deferred adjudication presents a valuable tool for progressive prosecutors to use in a broader movement for criminal justice reform.

However, data on how prosecutors use DPAs –– how often they are offered, and who they are offered to –– has long been lacking.  Drawing on a recent national experiment studying state and local prosecutors, we aim to supplement the existing data to help answer these questions.  We then draw on this more complete picture of how prosecutors at all levels are using DPAs to conclude that, contrary to congressional intent, DPAs have come to be used in practically every corporate criminal prosecution, while they are offered to resolve only a small fraction of individual prosecutions.  We argue that this troubling trend not only runs contrary to the legislation that initiated deferred prosecution agreements but is unjustified on public policy grounds.  This misalignment can likely be remedied by using deferred adjudication more frequently in individual prosecutions, presenting a valuable tool to respond to the endemic challenges of overcriminalization and mass incarceration, while still holding individuals accountable for crime. Increasing the use of deferred adjudication allows individuals facing criminal charges an opportunity at rehabilitation without the collateral consequences and reputational tarnish of prosecution. 

Notable (and failed) argument that “originalist" jury trial right must allow juries to know about sentence and nullification

Last week I came across a short federal district court opinion in US v. Valdivias, No. 20-20054-02-DDC (D. Kan. Aug. 26, 2024) (available here), rejecting some notable originalist jury claims by a drug defendant. I recommend the entire opinion, and here are excerpts:

Before trial, Defendant Hugo Chavez Valdivias filed a Motion to Inform the Jury of the Sentencing Range, to Permit Nullification Arguments, and to Exclude Pattern Criminal Jury Instruction 1.20 (Doc. 204).  First, he asks the court to instruct the jury on sentencing ranges for the charges in the Superseding Indictment.  Second, he asks the court not to instruct the jury that it must ignore possible punishment in evaluating guilt.  Third, he asks the court to permit sentence-based “nullification” arguments.

Defendant supports these three requests by invoking an “originalist understanding of the constitutional jury trial right.” Doc. 204 at 1. He first argues that our Circuit’s cases prohibiting nullification arguments are based on policy, not the Constitution’s original meaning.  This basis, he argues, requires the court to disregard the cases as “obsolete” in light of the Supreme Court applying “methods of originalism” to interpret the Sixth Amendment. Id. at 6. He next argues that Supreme Court cases frequently cited in opposition to jury nullification don’t resolve the issue before the court. Id. at 9–14. 

The government disagrees. It argues that the jury in this case has no role to play in sentencing and so it can’t consider any possible sentence. Doc. 208 at 2. What’s more, our Circuit has held there isn’t a right to sentence-based nullification arguments, id. at 4, and, the government argues, is bound by those precedents, id. at 6.

Our Circuit and the Supreme Court disagree with defendant’s position as well.  And so, following precedent, this court must disagree.

Though I am not completely versed on every aspect of originalist history and arguments regarding the jury trial right, I have read enough historical accounts or jury functioning at the Founding to believe the defendant here could make a robust originalist claim.  But, as the ruling suggests, all contemporary precedents on informing a jury about sentencing issues and nullification power are contrary to these kinds of originalist contentions.  This arena, then, serves as another example (of many) where it would seem a serious commitment to an originalist interpretation of the Constitution would provide crminal defendants more rights than they have under modern jurisprudence. 

Ever the criminal justice reform populist, former Prez Trump signals support for marijuana legalization in Florida and elsewhere

When he was president, Donald Trump played a critical role in advancing, and then signed into law, the most significant federal criminal justice reform in a generation, the First Step Act.  Trump has also often talked up expanding the federal death penalty and he presided over 13 federal executions during the last six months of his presidency.  Based on polling and other indicators, I view these aspects of Trump's criminal justice record as reflecting his populist inclinations.

In that spirit, I was not too surprise yesterday when Trump authored this Truth Social post to signal his support for Florida's Amendment 3, which would legalize adult use of marijuana in the Sunshine State.  National polls in recent years have generally shown about 2/3 of Americans support marijuana legalization, and various polls in Florida have shown nearly 60% of support for Amendment 3.  (Notably, ballot initiatives in Florida require 60% of the vote for an amendment's approval.)  Because marijuana legalization has lately proven quite popular with ordinary citizens, Trump's post and position seems to reflect his populist instinct.

In addition, in reviewing Trumo's post, I was struck by how certain language he used and points he made echo long-standing criminal justice reform advocacy.  Here are excerpts with some key terms emphasized:

We will take our streets back by being tough & smart on violent, & all other types, of Crime....

At the same time, someone should not be a criminal in Florida, when this is legal in so many other States.  We do not need to ruin lives & waste Taxpayer Dollars arresting adults with personal amounts of it on them, and no one should grieve a loved one because they died from fentanyl laced marijuana.

Notably, a wide array of criminal justice reformers and advocacy groups have long talked up the importance of being "smart" on crime.  The "Smart on Crime" label has often been embraced by coalitions of reform-minded groups at the state level, such as in Kentucky and Louisiana and Texas.  Even more notably, in 2013, then-US Attorney General Eric Holder launched a major reform effort labeled the "Smart on Crime" initiative.  And that "smart" branding may well have been drawn from the title of Kamala Harris's 2009 book "Smart on Crime: A Career Prosecutor's Plan to Make Us Safer."

Meanwhile, expressing concern about overcriminalization and also geographic unfairness in criminalization echoes justice reformers' oft-stated concerns (though racial inequities in criminalization are typically given more attention than geographic inequities).  And the suggestion that arrests of adults for mere marijuana possession can "ruin lives" has been a key theme in marijuana reform advocacy found in reports from the ACLU ("the price paid by those arrested and convicted of marijuana possession can be significant and linger for years, if not a lifetime") and editorials in the New York Times ("marijuana convictions — including those resulting from guilty pleas — can have lifelong consequences for employment, education, immigration status and family life").

Interesting times.

"Red Juries & Blue Juries"

The title of this post is the title of this new article authored by Richard Lorren Jolly available via SSRN. Here is its abstract:

The United States is a democracy divided.  Perhaps not since the Civil War have Americans been so deeply and bitterly at odds with one another.  This polarization stretches beyond mere policy disagreements and has become a type of identity that studies show is for many of greater importance than race, gender, and religious faith.  The result of this division has been a loss of confidence across the nation’s institutions, with potentially dire implications.  This Article is the first to examine the jury as an institution in light of partisan hyperpolarization.  It reviews the history and underlying purposes of the jury as a democratic body, stressing that political biases are an inherent — and at times desirable — part of the institution.  But, in drawing on extensive empirical socio-psychological scholarship, it demonstrates that today’s polarization is so extreme that fresh approaches are necessary.  In order to ensure procedural and substantive legitimacy, courts must be diligent in seeking partisan representation in venires and policing partisan partiality among jurors in all cases, not just those that are explicitly political.  Critically, it concludes that potential jurors should not be excluded solely on the basis of political affiliation or past votes cast.  The jury as an institution demands the voices of many in order to fulfill its role as the democratic bench of the judiciary.

Rounding up some notable new capital punishment pieces

In recent posts, I have already covered notable capital punishment adminstration stories from Florida and Missouri and South Carolina.  And as news and commentary on death penalty issues keeps emerging from states and nationally, an abridged round-up of notable recent pieces catching my eye seemed in order:

From 10News, "Gov. Lee says Tennessee is working to resume executions, after sudden halt in 2022"

From the Daily Mail.com, "Trump reveals he'll bring BACK the federal death penalty and expand it to cover these sick crimes... do you agree?"

From FITSNews, "Capital Punishment: Line. Them. Up. And put them down…"

From The Journal, "The weight of the wait 30 years after Kansas death penalty law"

From the Kansas City Star, "Kris Kobach: The only problem with Kansas’ death penalty is that it takes too long"

From the New York Times, "America Does Not Need the Death Penalty"

From the Pittsburgh Post-Gazzette, "Editorial: Baby Leon Katz deserves justice. Pursuing the death penalty will only delay it"

From Salon, "The end of the abolition era: Democrats quietly drop their opposition to the death penalty"

From USA Today, "Death penalty in the US: Which states still execute inmates, who has executed the most?"

New ACLU memo paints rosy vision of "Harris on the Criminal Legal System"

In this post last month, I flagged (and threw some shade on) one of a series of "roadmap" documents ALCU has produced on various issues looking toward the next presidential administration.  That document, titled "Trump on the Criminal Legal System," painted a  dark picture of the prospects of "Trump’s efforts to bring in a new wave of mass incarceration."  Now the ACLU has just released this parallel memo in this series, titled "Harris on the Criminal Legal System," which contends a Harris Administration "could have a significantly positive impact on America’s justice system."  Here is how this 12-page document begins:

Democratic nominee Vice President Kamala Harris has comprehensive knowledge of the criminal justice system and a demonstrated record of a commitment to reform.  While Harris may not be aligned with all of the ACLU’s positions on criminal law reform, there is nonetheless considerable overlap and synergy.

Before she was elected to the Senate, Harris served as an assistant district attorney and district attorney for the city of San Francisco, and as attorney general for the state of California.  As a district attorney, Harris established a reentry program focused on removing barriers to housing, education, and employment.  As an attorney general, she created an office to address the rights of children in the juvenile justice system.  Later as a senator, Harris championed progressive legislation to address police transparency and accountability and to address disparities created by the war on drugs.

To be clear, Harris has a mixed record on criminal law reform.  For instance, her position on the death penalty has shifted over time.  As district attorney, she demonstrated fidelity to campaign promises when she declined to seek the death penalty.  But, under her leadership as attorney general, her office defended the death penalty in California after a court found it to be unconstitutionally arbitrary.  That said, Harris’ most recent work in the Senate to reform the criminal legal system is encouraging.  If she continues this path, she could have a significantly positive impact on America’s justice system.

This year also marks the 30th anniversary of the 1994 Crime Bill, which presents Harris with an opportunity to renounce the failed policies that drove mass incarceration and to embrace reform to end racial disparities and move toward a more humane system for all.  The ACLU will continue our advocacy for such meaningful reform.  We will push the Harris administration to expand progressive reform efforts and challenge draconian approaches to criminal legal policy.

Prior related post:

•  New ACLU memo paints dark vision of "Trump on the Criminal Legal System"

"Prosecutorial Reform and the Myth of Individualized Enforcement"

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

The American prosecutor’s legitimacy faces unprecedented challenges.  A new wave of reformist prosecutors has risen to power promising to transform the criminal justice system from within, sparking fierce backlash from defenders of the prosecutorial status quo.  Central to this conflict is a debate over the nature of prosecutorial discretion, influenced by a set of claims and assumptions that this Article terms the myth of individualized enforcement.  This myth posits that prosecutors base discretionary decisions on case-specific facts and equitable circumstances rather than generalizable criteria or categorical nonenforcement practices, such as the policies some reformist prosecutors have adopted that disfavor prosecuting marijuana possession or abortion offenses or seeking the death penalty.

This Article is the first to identify and critically examine the myth of individualized enforcement.  It draws on a review of historical evidence and research on contemporary prosecutorial practices to show that prosecutors have long engaged in categorical nonenforcement in relation to vice laws, property offenses, and even certain areas of violent crime enforcement.  By situating reformist prosecutors’ policies within this broader context, the Article exposes how the myth of individualized enforcement has been weaponized to delegitimize reform efforts while shielding conventional prosecutors from scrutiny.

The Article also excavates the deeper distinctions between reformist and conventional approaches to categorical nonenforcement that the myth of individualized enforcement serves to hide from view.  Reformist prosecutors tend to adopt centralized, formal, and transparent nonenforcement policies that aim to redistribute the benefits of prosecutorial leniency to historically marginalized groups.  Conventional prosecutors, in contrast, have often dispensed categorical leniency in an informal, covert manner and in contexts that tend to reproduce existing hierarchies of race, class, and gender.  By surfacing these divergences, the Article aims to reorient academic and political discourse about prosecutorial reform toward the more constructive end of evaluating different visions of discretionary justice and the institutional structures that will best align prosecutorial power with democratic values.

Rounding up some notable criminal justice advice directed toward prez candidate Harris

A range of criminal justice issues are starting to get a range of media attention with now less than 10 weeks until Election Day 2024.  I have recently noticed a number of newer pieces with various folks giving advice to VP Kamala Harris about how she might campaign and govern in this space.  Here is a partial round-up:

From the Chicago Tribune, "Kamala Harris must engage with voters on crime to maintain momentum"

From Marijuana Moment, "Harris Needs To ‘Follow Through’ On Marijuana Legalization, Independent Presidential Candidate Cornel West Says"

From The New Republic, "Crime Is Down. Kamala Is Up. There’s a story here, if the Harris-Walz campaign wants to tell it."

From Politico, "Democrats Are Already Buzzing About a Merrick Garland Successor: Here’s what Kamala Harris needs in an attorney general."

From the Washington Post, "Harris should go full wonk on crime: Rural voters want better answers to crime than overcrowded jails."

"Public Defense Attorneys' Perception of Race and Bias: National Survey Findings"

The title of this post is the title of this recent publication from the Center for Justice Innovations (CJI) authored by Sruthi Naraharisetti. Here is how the CJI website describes the work:

Public defense attorneys play a pivotal role in addressing the racial inequities that many clients face in the criminal legal system while also experiencing the impact of those racial inequities themselves.  This exploratory study aims to illuminate how attorneys consider race in their work, conceptualize their role in addressing racial inequity, and experience the impact of their racial or ethnic identities in the workplace.

Our survey of 690 public defense attorneys reveals that race significantly influences public defense practice and culture.  Attorneys recognize racial inequities in the legal system and adapt their strategies accordingly, with notable differences between attorneys who are white and attorneys who are Black, Indigenous, or People of Color (BIPOC). White attorneys often find that race hinders their relationships with BIPOC clients, while BlPOC attorneys are more likely to report adjusting case strategies for BIPOC clients. Inequities within the profession — such as a lack of diversity among attorneys and leadership, limited opportunities for dialogue, and workplace racism — are particularly felt by BIPOC attorneys.  We hope this report will inspire reflection and discussion among public defense agencies about racial bias in the field and help pave the way to identifying and evaluating actionable solutions.

South Carolina Supreme Court takes up pacing of state execution plans

As reported in this new AP piece, the "South Carolina Supreme Court won't allow another execution in the state until it determines a minimum amount of time between sending inmates to the death chamber." Here is more:

The state's next execution, scheduled for Sept. 20, is still on for inmate Freddie Eugene Owens.  It would be the first execution in South Carolina in over 13 years after the court cleared the way to reopen the death chamber last month.

But as it set Owens' execution date Friday, the court also agreed to take up a request from four other death row inmates who are out of appeals to require the state to wait at least three months between executions.  In its response, state prosecutors suggested setting the minimum at no longer than four weeks between executions.

Currently, the Supreme Court can set executions as close together as a week apart.  That accelerated schedule would rush lawyers who are trying to represent multiple inmates on death row, a lawyer for the inmates wrote in court papers.  Prison staff who have to take extensive steps to prepare to put an inmate to death and could cause botched executions, attorney Lindsey Vann said.

Neither argument is a good reason to wait for three months, state prosecutors responded in offering up to a four-week delay.  “The Department of Corrections staff stands ready to accomplish their duty as required by our law with professionalism and dignity,” Senior Deputy Attorney General Melody Brown wrote in a response drafted after speaking to prison officials....

South Carolina has held executions in rapid succession before.  Two half brothers were put to death in one night in December 1998.  Another execution followed on each of the next two Fridays that month, with two more in January 1999.

UPDATE: As reported in this press piece, the "South Carolina’s Supreme Court promised [on August 30] it would wait at least five weeks between putting inmates to death as the state restarts its death chamber with up to six executions looming."

"Presidential pardons: Which ones do Americans approve of?"

The title of this post is the title of this interesting new YouGov entry discussing its latest polling regarding various all sorts of aspects of the use and reach of the federal clemency power.  There are a number of notable and interesting findings discussed throughout the piece, and here is its introductory overview at the start:

As the 50th anniversary of Gerald Ford’s controversial pardon of Richard Nixon approaches, new polling reveals that public support for the pardon has increased over time, though slightly more still disapprove of it than approve. Americans are divided over many specific pardons, largely corresponding to whether their party and the party of the president who issued it are aligned. While some of the most recent pardons — such as those granted by President Joe Biden for marijuana possession — receive broad approval, others, particularly those issued by former President Donald Trump to his allies, are viewed far less favorably.

Roughly half of Americans approve of presidents having the power to pardon federal crimes, but majorities think it would be inappropriate for presidents to pardon themselves, family members, or donors. Many support putting limits on the president's pardon power, including by making public the reasons behind pardons, prohibiting self-pardons, and limiting pardons during an election year.

Ninth Circuit panel continues using Kisor deference analysis for guideline commentary after Loper Bright

The Ninth Circuit handed down a notable little opinion late last week in US v. Trumbull, No. 23-912 (9th Cir. Aug. 22, 2024) (available here), discussing whether the federal sentencing guidelines' commentary regarding the "definition of 'large capacity magazine' Warrants Deference under Kisor." Hard-core sentencing fans should know what is meant by guidelines' commentary, and hard-core administative law fans should know what is meant by Kisor deference. The panel majority concludes its analysis this way:

Application Note 2’s interpretation of “large capacity magazine” in § 2K2.1 meets the extensive requirements for deference laid out in Kisor. Therefore, the district court did not err in applying § 2K2.1(a)(4)(B), as interpreted by Application Note 2, to Trumbull’s base offense level when calculating his Guidelines range.

Judge Bea concurred in the result, but he wrote at length to explain why he thought Kisor deference was not justified in this context. In so doing, Judge Bea suggested that the Supreme Court's recent Loper Bright ruling was relevant to the analysis:

The majority’s expansion of Kisor deference is particularly troubling considering the Supreme Court’s recent decision in Loper Bright.  Although I acknowledge that Loper Bright did not expressly overrule Kisor, the majority is mistaken to brush Loper Bright aside and treat it as irrelevant to the interpretation of regulatory language. Maj. Op. at 7 n.2. The Court in Loper Bright made clear that courts cannot merely “throw up their hands,” as the majority does today, when a term is difficult to apply.  See Loper Bright, 144 S. Ct. at 2266. Indeed, Loper Bright questioned whether ambiguity can even serve as a valid benchmark when it comes to a court’s interpretive role.

I have noted in a number of prior posts (some linked below) that there is on-going dispute in the circuit as to whether Kisor applied to the guidelines commentary, and I am not surprised to see Loper Bright adding a nuance to these matters of uncertainty.

A few prior related posts:

• Kisor role: how often is deference to the federal sentencing guidelines' commentary litigated?
• Sixth Circuit panel debates agency deference for guideline commentary defining images for child porn sentencing
• How Kisor rolls: Third Circuit rejects guideline commentary in child porn sentencing 
• Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law 

Sixth Circuit panel rules federal prohibition of felon gun possession is "constitutional on its face and as applied to dangerous people"

A panel of the Sixth Circuit handed down an interesting and intricate opinion in US v. Williams, No. 23-6115 (6th Cir. Aug. 23 , 2024) (available here), which rejects a Second Amendment challenge to a federal illegal gun possession charge by a "dangerous" person with a felony record. The lengthy opinion for the Court concludes with this very helpful summary:

To summarize, we hold today that § 922(g)(1) is constitutional on its face and as applied to dangerous people.  Our nation’s historical tradition confirms Heller’s assumption that felonin-possession laws are “presumptively lawful.”  The history reveals that legislatures may disarm groups of people, like felons, whom the legislature believes to be dangerous — so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.

A person convicted of a crime is “dangerous,” and can thus be disarmed, if he has committed (1) a crime “against the body of another human being,” including (but not limited to) murder, rape, assault, and robbery, or (2) a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary. An individual in either of those categories will have a very difficult time, to say the least, of showing he is not dangerous.

A more difficult category involves crimes that pose no threat of physical danger, like mail fraud, tax fraud, or making false statements. But such a case is not before us today.

In any event, district courts need not find a “categorical” match to a specific common-law crime to show that a person is dangerous. Rather, district courts should make fact-specific dangerousness determinations after taking account of the unique circumstances of the individual, including details of his specific conviction. Finally, when considering an individual’s dangerousness, courts may evaluate a defendant’s entire criminal record — not just the specific felony underlying his section 922(g)(1) prosecution.

Here, Williams availed himself of his constitutionally required opportunity to show that he is not dangerous—albeit after he violated the law, not before. Because his record demonstrates that he is dangerous, we reject his challenge. We thus affirm.

By my read, this opinion means that any and every person within the Sixth Circuit criminal charged with illegal firearm possession under 922(g)(1) — and perhaps other federal and state gun control provisions? — can now seek dismissal of that charge by making "an individualized showing that he himself is not actually dangerous."   In addition, I wonder if this Williams opinion might now provides a means for the millions of persons with non-violent felony convictions in the Sixth Circuit to seek a declaratory judgment that they are "not actually dangerous" and thus have a Second Amendment right to possess (and purchase) firearms like all their fellow citizens.

A few of many rior related posts:

• After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 
• Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi 
• Ninth Circuit grants en banc rehearing of panel ruling that federal felon-in-possession criminal law is unconstitutional 
• After Rahimi remand, Eighth Circuit panel again rejects Second Amendment challenge to federal felon in possesion charge

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

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

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

Effective update on impact and import of Fischer ruling on Jan 6 prosecutions

Politico has this informative new piece, headlined "Justice Department signals plan to salvage obstruction charges in some Jan. 6 cases," which  details some of the echoes of the Supreme Court's Fischer ruling a couple of months ago.  I recommend the piece in full, and here are excerpts:

The Justice Department said Wednesday it plans to press ahead with obstruction charges against two Jan. 6 defendants despite the Supreme Court’s recent ruling that limited the scope of a federal statute that makes it a felony to obstruct many government proceedings.

Prosecutors contended they can still prove that the two defendants, a married couple from Ohio, are guilty of obstructing Congress even under the high court’s narrow interpretation of the law. The defendants, Don and Shawndale Chilcoat, are accused of surging with the mob onto the Senate floor during the riot at the Capitol.

The Justice Department’s announcement in the Chilcoats’ case appears to be the first time since the Supreme Court’s June 28 ruling that prosecutors have signaled their intention to proceed with obstruction charges in any cases stemming from the Capitol riot.

Over the past seven weeks, the Justice Department has abandoned the obstruction charge in a slew of cases, citing the uncertainty caused by the Supreme Court. Prosecutors also have refrained from pursuing the charge in new cases. That has blunted an important cudgel for prosecutors: The obstruction charge carries a 20-year maximum sentence and has often been used to coax defendants into plea deals. The charge has also been used by the department to distinguish between those who simply paraded around the Capitol and those who broke in with a provable intent to interfere with Congress.

Before the Supreme Court weighed in, the Justice Department had charged more than 300 Jan. 6 defendants with “obstruction of an official proceeding” for their alleged roles in seeking to prevent Congress from certifying the results of the 2020 election. The charge was often the most serious that Jan. 6 defendants faced.

But in a 6-3 opinion that scrambled the justices’ usual ideological alignment, the Supreme Court ruled that the 20-year-old obstruction statute, passed in the aftermath of the Enron financial scandal, can apply only to defendants who took steps to impair physical evidence, like shredding documents or concealing them from investigators. The high court’s interpretation reversed lower-court rulings and roiled dozens of ongoing prosecutions stemming from the riot, particularly in cases where defendants faced no other felony charges.

In addition, federal judges released from prison a slew of defendants convicted of obstruction while they await further legal arguments about the future of their cases. In other Jan. 6 cases, particularly those involving defendants who scuffled with or impeded police, prosecutors have turned to a civil disorder charge in lieu of the obstruction count. That charge is also a felony but carries only a five-year maximum sentence....

Wednesday’s filing in the case against the Chilcoats confirms that prosecutors believe they have found ways to revive or sustain the obstruction charges in some cases. They say the evidence suggests the Chilcoats both knew that their incursion onto the Senate floor in the Capitol would prevent Congress from meeting on Jan. 6 to tally electoral vote certificates — the very physical evidence they say the obstruction law was meant to cover.

"Legislatures and Localized Resentencing"

The title of this post is the title of this new paper available via SSRN authored by Ronald Wright and Kay Levine.  Here is its abstract:

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases.  These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels.  In the discretionary channels, the chief local prosecutor has the authority both to decide whether to participate in the program and to select individual cases for review.  Through original interviews and review of publicly available data, we highlight how this practice is working in California and Washington State.  We observe that when local prosecutors exercise their discretion under the new statute, they necessarily produce uneven results around the state, as some counties embrace resentencing practices, some use their power sparingly, and others leave it untouched.

This local variation is fully consistent with the legislative design.  In effect, these statutes grant to local officials certain powers previously associated with parole boards, but the practices are not synonymous with parole.  The statutory design also opens up a gridlocked political process; this grant of authority empowers the state’s most change-oriented prosecutors to act while more cautious prosecutors wait and see.

Noticing a notable capital shift in Democrats' campaign platform

HuffPost has this notable new piece noting a notable new shift in one party's platform on a notable old punishment.  The piece headlined "Democrats Scrub Death Penalty Opposition From Campaign Platform: For the first time in more than a decade, the Democratic Party platform includes no mention of abolishing the death penalty."  Here are excerpts from a piece covering a lot of interesting ground:

In 2016, the Democratic Party became the country’s first major political party to formally call for abolishing the death penalty.  The party’s platform that year, released in the aftermath of a high-profile botched execution, called the punishment “cruel and unusual,” “arbitrary and unjust,” expensive to taxpayers and ineffective in deterring crime.  The document also nodded to the people exonerated from death row as evidence of the risk that the government will kill innocent people.

During the 2020 campaign, the Democratic platform reiterated support for abolishing the death penalty.  When Joe Biden entered office the following year, he became the first president to publicly oppose capital punishment — a dramatic shift from his time in the Senate, when he once bragged that the sweeping crime bill he was pushing did “everything but hang people for jaywalking.”

However, as his term winds down, Biden has little to show for the party’s promise to abolish capital punishment.  On Monday, the Democrats approved their 2024 platform, which includes no mention of the death penalty.  This year’s platform marks the first time since 2004 the platform has not mentioned the death penalty (the 2008 and 2012 platforms called for making the punishment less arbitrary)....  The Democratic National Committee did not respond to an email asking if the party still supports abolishing the death penalty....

Meanwhile, Republicans are gearing up for another execution spree if Trump wins reelection.  Project 2025, an 887-page document outlining plans for a second Trump presidency released by a coalition of conservative groups, suggests that Trump execute every remaining prisoner on death row.  The document also envisions pursuing the death penalty in cases involving violence and sexual abuse of children.  In a footnote, the document notes that this would require convincing the Supreme Court to overrule its previous findings on when the death penalty is appropriate, but that “the [Justice] department should place a priority on doing so.”  Trump reportedly plans to announce his support for expanding the death penalty to non-homicide crimes....

In addition to dropping any mention of the death penalty, this year’s Democratic platform noticeably backs away from several criminal justice reforms the party embraced in 2020, when the police killing of George Floyd prompted nationwide protests against police brutality.  The criminal justice section of the 2020 platform opens by declaring that the system is “failing” to keep people safe and deliver justice.  It contrasts the promise of America as the “land of the free” with the reality that the U.S. has the highest rate of incarceration in the world and calls for “dramatically” reducing the number of people held in prisons and jails.

The 2020 platform includes support for several specific policies that are either absent from the 2024 platform or have been considerably toned down, including: ending life-without-parole sentences for people under 21, banning police from using chokeholds, decriminalizing cannabis, eliminating cash bail and repealing mandatory minimum sentences.

This year’s platform makes no mention of mass incarceration.  Instead, it describes the need to “fund the police” and touts DOJ funding for more police officers.  The platform claims Biden “took action to enhance public trust” by signing a “historic” executive order directing federal law enforcement agencies to ban chokeholds “unless deadly force is authorized” — a move described by civil rights groups as only a first step on police reform.

Prior related post:

• Spotlighting how a change in federal Administrations could lead to a big change in federal capital punishment administration 

Notable battle over death row defendant's innocence claim in Missouri

The New York Times has this new piece, headlined "Prosecutors to Face Off Over Innocence Claim by Prisoner on Death Row," reporting on the people behind a notable legal fight surrounding a defendant scheduled to be executed by the state of Missouri next month.  Here is how it starts:

A man facing execution in Missouri next month will be in court on Wednesday for what could be his last chance to prove his innocence.

The guilt of the man, Marcellus Williams, has been challenged for years, and he has come close to execution twice. But the hearing on Wednesday in St. Louis County will be the first time that a court will consider DNA evidence that could exonerate him.

The case is notable because it has put two law enforcement officials, the local prosecutor and the state attorney general, on opposite sides. The prosecutor, Wesley Bell, supports Mr. Williams’s bid for exoneration and has filed a 63-page motion to overturn his conviction. The attorney general, Andrew Bailey, has argued that Wednesday’s hearing should not even take place.

Mr. Bell, a Democrat, recently defeated U.S. Representative Cori Bush in the Democratic primary for her House seat in a heavily Democratic district, so he will very likely be heading to Congress in January. Mr. Bailey, a Republican who was appointed to his office midterm to fill a vacancy, fended off a primary challenge this month and is also likely to win the general election in the deeply red state.

In his short time in office, Mr. Bailey has opposed three wrongful-conviction claims, going so far as to try to keep people in prison after they have been exonerated. In the Williams case, he has asked both the trial court and the State Supreme Court to block the hearing.

UPDATE: Thanks to a helpful commentor, I see there is new breaking news in this case: "Missouri death row inmate agrees to new plea in deal that calls for life without parole." The latest:

A Missouri death row inmate on Wednesday dropped his innocence claim and entered a new no-contest plea in an agreement that calls for a revised sentence of life in prison without parole.

But the Missouri Attorney General’s Office opposes the new consent judgment and will appeal in an effort to move ahead with the scheduled Sept. 24 execution of Marcellus Williams.

ANOTHER UPDATE: Via CBS/AP, "Missouri Supreme Court blocks agreement that would have halted execution of death row inmate Marcellus Williams"

Brennan Center produces short piece "Analyzing the First Step Act’s Impact on Criminal Justice"

I was pleased to see today that the Brennan Center for Justice released this short new "analysis" on the First Step Act titled "Analyzing the First Step Act’s Impact on Criminal Justice."  Though I was hoping that the piece might include some considerable new or detailed "analyzing" of how the First Step Act has impacted justices systems now nearly six years after its passage, this document is really just an overview of the major provisions of the Act along with a review of some basic data on the Act's early implementation from various sources. 

Still, though I was eager to see more, this Brennan Center document provides a clear and effective primer on many key aspects of the First Step Act and on some key implementation data and issues.  In addition, hyperlinks embedded in the report effectively provide ready accesss to a number of major government reports about the First Step Act's implementation.  Though there is a whole lot more that can and should be said about the "First Step Act’s Impact on Criminal Justice," this report still serves as an effective overview resource (especially given what I perceive to be the relative paucity of other writings about the First Step Act by either academics or advocates).  

"Disparities in Sentencing: Creating a "Benchcard" on Brain Development to Incorporate Neuroscience Research"

The title of this post is the title of this new article posted to SSRN authored by Stevie Leahy. Here is its abstract:

This article explores the disparities in juvenile sentencing across the United States, with a focus on the implications of the Supreme Court's decision in Jones v. Mississippi (2021) and the importance of incorporating neuroscience research into legal decisions.  It highlights how different jurisdictions handle juvenile life without parole (JLWOP) sentences, leading to significant inconsistencies based on geography.  The article advocates for the development of a “benchcard” that would guide judges in making informed decisions by integrating the latest scientific understanding of brain development, particularly concerning individuals up to age 25.  By examining the evolution of legal protections for juveniles and the role of the prison industrial complex, the article argues for a more equitable legal approach that considers the developmental differences of young offenders.

US Sentencing Commission releases updated "Compassionate Release" data report

I flagged in this recent post the US Sentencing Commission's latest release of new sets of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data. But I did not want to forget that the USSC also now has available on this data page its latest "Compassionate Release" data report. Specifically, the USSC describes its "FY 2024 Third Quarterly Report (Published August 15, 2024)" this way:

This report provides an analysis of the compassionate release motions filed with the courts and decided through the third quarter of fiscal year 2024. Table 1 and Figure 1, combine this data with data on compassionate release motions from prior fiscal years to facilitate trend analyses. The data in this report is limited to motions for which the Commission received or obtained court documentation and completed its analysis by August 9, 2024.

Table 1 of this data report reinforces my sense that a rough steady pattern now emerged in recent years for sentence reduction motions in federal courts, with each month a few hundred motions being resolved and a few dozen being granted.

Over at the Sentencing Matters Substack, a few of us have been writing about second-look sentencing more generally.  Here are a couple of the most recent posts in this arena:

"Bryan Stevenson, Second Looks, and Lasting Reverberations"

"Should Second Look Efforts Focus Particularly on Drug Offense Sentences?" 

Rounding up some coverage and commentary on criminal justice issues in the 2024 race for the White House

Both former Prez Donald Trump and current Vice President Kamala Harris have lengthy and nuanced criminal justice histories and records as politicians, and Trump also has recent experiences as a criminal defendant and Harris has past experiences as a criminal prosecutor.  I do not think these rich histories enable easy summarization nor obvious prognostication about what these presidential candidates might do over the next four years if elected.  Nevertheless, since I am seeing a number of press pieces seeking to cover criminal justice angles in the race for the White House, I figured a abridged round-up was in order:

From ABC News, "How do Harris and Trump's records on criminal justice compare?"

From Bloomberg, "Harris Can’t Let Republicans Define Her Record on Crime for Her"

From The Bulwark, "Criminal Justice Reform: Trump’s Indifference vs. Harris’s Mixed Record"

From the Chicago Tribune, "Voters don’t want to hear Trump and Harris fight over crime. They want to hear the best solutions."

From The Hill, "What a Harris-Walz ticket could mean for criminal justice reform"

From the New York Times, "Kamala Harris and the Return of ‘Tough on Crime’"

"State Legislatures and the Uptake Puzzle in Expungement of Criminal Records"

The title of this post is the title of this recent paper available via SSRN and authored by Jessica Steinberg and Elenore Wade. Here is its abstract:

Expungement has an uptake problem.  A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only 1 to 6 percent of eligible people avail themselves of the remedy.  Expungement is a powerful policy tool that promotes social and economic reintegration.  It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes.  One might assume people would rush to court to clear their records.  That the opposite is occurring — and new laws are idling on the books —suggests that rights-creation in this space has not been efficacious.  This demands a hard look at the mechanics of expungement to ferret out possible reasons for the stagnation of the most sprawling and ambitious policy attempt in recent history to address the collateral consequences of mass criminalization.

This article tackles the uptake puzzle in expungement of criminal records.  Employing an access-to-justice framework and drawing from the literature on administrative burden, the article presents findings from a study that identifies uptake barriers embedded in the workings of formal law and institutions.  We systematically analyzed the law and procedure governing expungement of felony convictions in all thirty-two states that allow for it.  We then developed six metrics to study, all within the control of the formal institutions responsible for creating or administering expungement policy.  These metrics investigated access to the expungement remedy in light of the unique legal regime in each state and allowed us to create a state-by-state comparison of whether and to what extent courts and legislatures developed the conditions necessary for a person seeking felony expungement to complete the process successfully.  Our study uncovered access barriers to expungement uptake across three domains: informational, procedural, and financial.  These barriers reflect governmental decisions to shift uptake burdens to ordinary people and enshrine those burdens in formal law.  The article provides rich qualitative analysis of these access barriers as one way to account for the uptake puzzle.  With these findings, we elevate access challenges as both central to the efficacy of expungement policy and as eminently avoidable.

In addition, the article offers two broad implications from our research that point the road forward on reform.  First, we find that legislatures play a surprisingly dominant role in restricting access to the expungement remedy.  By probing the under explored role of legislatures, we surface a more complex treatment of how access barriers are layered across institutions to keep the expungement remedy out of reach.  Second, we suggest that each state has developed a de facto “access policy” that serves an adjunctive role to substantive expungement policy. Without exception, these access policies are haphazard in their expression and work at cross-purposes with the stated goals of expungement.  We call on legislatures to leverage their substantial convening power to study the real-world circumstances of expungement applicants.  We also call on states to draw on the pluralistic access landscape we depict in this Article to turn toward access-promoting choices that increase uptake.

Former Prez Trump's lawyers move to "adjourn any sentencing" following his NY convictions "until after the 2024 Presidential election"

As reported here in The Hill, "Former President Trump asked the New York judge who oversaw his recent criminal trial to delay his sentencing until after November’s presidential election." Here is more:

Judge Juan Merchan previously agreed to push the date back until September so he can first decide whether the Supreme Court’s presidential immunity decision requires tossing Trump’s guilty verdict.

“[S]etting aside naked election-interference objectives, there is no valid countervailing reason for the Court to keep the current sentencing date on the calendar,” Trump attorneys Todd Blanche and Emil Bove wrote in a letter to the judge, which was made public Thursday. “There is no basis for continuing to rush,” the letter continued. “Accordingly, we respectfully request that any sentencing, if one is needed, be adjourned until after the Presidential election.”

In May, a New York jury convicted Trump on all 34 counts of falsifying business records to conceal criminal conduct that hid damaging information from voters.... Trump’s sentencing in New York was originally slated for July, but the judge pushed it back to Sept. 18 after the Supreme Court carved out at least presumptive criminal immunity for former presidents’ official acts.

Trump does not claim immunity from the hush money charges themselves, but he asserts that prosecutors at trial improperly introduced immunized evidence, so his verdict must be wiped as a result. Prosecutors have pushed back on the argument, and Merchan is set to rule on the matter two days before sentencing. Trump’s attorneys said the small gap is an “unreasonably short period of time,” signaling the former president will immediately attempt to appeal if the judge rejects his immunity arguments. “The requested adjournment is also necessary to allow President Trump adequate time to assess and pursue state and federal appellate options in response to adverse ruling,” the letter reads.

The letter also noted Merchan’s third refusal to recuse from the case Wednesday. Trump’s lawyers have latched onto the judge’s daughter’s employment at a digital agency that does work for prominent Democrats, but the judge has insisted he has no conflict, citing guidance from a state ethics advisory group. “Notwithstanding the Court’s ruling on the disputed recusal issue, the requested adjournment would prospectively mitigate the asserted conflicts and appearances of impropriety, which are also the subject of an ongoing congressional inquiry,” Blanche and Bove wrote in the letter.

The full letter from Trump's lawyers to Judge Merchan is available at this link.

"Can Prosecutorial Declination End Overincarceration?"

The title of this post is the title of this recent article available via SSRN authored by Shima Baradaran Baughman. Here is its abstract:

We know very little about why prosecutors charge a given case, how frequently they charge, and why they decline to charge cases.  Scholars have discussed this issue despite the acknowledged “black box” around this question.  Some have recently argued that progressive prosecution has influenced prosecutors to decline more cases.  Others discuss rates of individual state and federal declination — showing high rates particularly for federal districts.  One scholar has suggested that private prosecution might be the only viable alternative to public prosecution.  Overall crime has certainly gone down in the U.S. and arrests have also dropped.  But prosecutors have not necessarily reduced charging in commensurate ways.  Given what we know about mass incarceration and prosecutors’ inordinate ability to exercise discretion in the criminal process, are prosecutors inclined to decline cases?  What might factor in their decision?

This Article focuses on the largest national field experiment on prosecutors to provide some insight to how American prosecutors might analyze and decide to charge a given case.  In some respects, the data are insightful because they take away any resource constraints or evidentiary limitations in charging a case.  The data show that prosecutors, when given the opportunity, would almost always charge a case — even when many factors indicate that they should do otherwise.  What this national data tells us about prosecutorial charging and declination may demonstrate that we have not made as much “progress” in terms of prosecution as we might have hoped. Declining to charge might never be a prosecutorial tool to end mass incarceration.

Noting how California initiative to roll back Prop 47 is creating political divide

"Where you stand depends on where you sit" and "All politics is local" are two old chestnuts in the political world. This new Politico article, headlined "Why a tough-on-crime initiative is splitting California’s Democrats," tells a variation on this story in conjunction with west-coast criminal justice reform initiative. Here are excperts:

If you want to know where California Democrats stand on the tough-on-crime Proposition 36, look at where they sit.

On one side of the ballot-measure contest are the Capitol’s top Democrats, including Gov. Gavin Newsom and Assembly Speaker Robert Rivas, who have fought efforts to roll back parts of Prop 47, the landmark 2014 criminal justice ballot initiative that downgraded certain theft and drug crimes from felonies to misdemeanors.

On the other side are big-city mayors like San Francisco Mayor London Breed and San Diego Mayor Todd Gloria, who have argued that strengthened penalties are necessary to assuage their constituents’ growing concerns about public safety.  They have been joined by organizations like the League of California Cities and the California Contract Cities Association, which represent the interests of city hall officials statewide.

San Jose Mayor Matt Mahan and two local officials — Sacramento County District Attorney Thien Ho and Elk Grove Mayor Bobbie Singh-Allen — are now launching their own committee supporting Prop 36.  They hope the Common Sense for Safety committee will open space for other Democratic office-holders willing to cross Newsom and other prominent state officials....

When prosecutors and big-box retailers came forward earlier this year with their initiative to restore harsh penalties for non-violent crimes, Newsom and legislative leaders began working to get it off the ballot.  After failing to persuade the initiative’s proponents to drop their quest and abandoning plans to promote an anti-crime measure of their own, the Capitol’s top Democrats are leading the charge against Prop 36.  They warn the measure will take California back to the era of mass incarceration and cost taxpayers millions of dollars.

It has not stopped Democratic mayors and other local officeholders from coming out in favor of the initiative.  Yes on Prop 36, the main campaign committee supporting the initiative, has put out a steady drumbeat of endorsements from local-level politicians, including many Democrats....  Local officials and organizations that represent them say there are clear reasons for the measure’s strong support on the local level: They’re less insulated from the effects of retail theft and drug issues than politicians in Sacramento, giving them more of an on-the-ground perspective on how dire the situation really is.

"Taking Stock: Reflections on 50 Years of Crime and Punishment in America"

The title of this post is the title of this notable keynote speech delivered this week by Jeremy Travis at the annual conference of the National Criminal Justice Association. I recommend reading the speech in full, as Travis explains in the introduction that he hopes to "challenge you to think critically about the realities of crime and punishment in America so that you can help our democracy chart a new course to a more just and humane response to crime." It strikes a notably positive reform tone, and this 14-page document concludes this way:

We have much work ahead of us, but this is the time to embrace an ambitious agenda.  The American system of criminal justice stands at a crossroads. With low crime rates, public support for less punitive responses to crime, and an urgent call from the next generation to do no more harm and embrace the call for racial justice, a window of opportunity has opened.  I can think of no group of justice professionals better equipped to seize this moment.  I believe with all my heart that this is a patriotic calling.  The cause of justice, and the hopes for a vibrant multi-racial democracy, hang in the balance. It may take another fifty years, but now is always the best time to get started.

"Justice for None: How Marsy's Law Undermines the Criminal Legal System"

The title of this post is the title of this lengthy new report released today by the National Association of Criminal Defense Lawyers.  Here is part of the report's executive summary:

Marsy’s Law is the colloquial name for a model Victims’ Bill of Rights that enshrines victims’ rights within state constitutions. Marsy’s Law was first passed in California in 2008 and has since been adopted in 12 states....

This report aims to shed light on the impact of Marsy’s Law.  While Marsy’s Law proponents argue that the impact on due process for accused individuals has been minimal while the benefits for victims have been immense, legal challenges and news reports from impacted states suggest otherwise.  Many of the provisions of Marsy’s Law are impractical and conflict with the constitutional due process protections for defendants.  There is a need for systematic scrutiny of Marsy’s Law across impacted states to study its impact including identifying challenges, unintended consequences, and the gaps in the collective knowledge and awareness of its effects.  While there has been vocal opposition to Marsy’s Law from many stakeholders including defense attorneys, civil rights groups, a bipartisan group of state legislators, legal experts, victim advocates, and police chiefs and sheriffs, these critiques have largely been siloed within their respective states.

This report synthesizes existing information on Marsy’s Law and presents the findings of new research on the effects of Marsy’s Law in impacted states.  Case law, legal and expert analysis, stakeholder experiences, and empirical research are utilized to provide insights on the impact and consequences of Marsy’s Law on the criminal legal system, including effects on accused individuals, victims, and public safety. In addition to the secondary data (e.g., court rulings, newspaper articles, press releases), a mixed-methods approach was used to gather data from stakeholders in impacted states.  The aim of this research was to obtain an understanding of how Marsy’s Law has impacted the criminal legal system in their states, and their experiences before and after implementation.  A quantitative survey instrument was designed and administered to a variety of stakeholders.  This report presents the results of the experiences of defense attorneys (n=299) in impacted states.  Second, focus groups with defense attorneys and other relevant stakeholders were conducted to bring to light in-depth expertise and experiences with Marsy’s Law.

"The Victims' Rights Mismatch"

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

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

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

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

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

Noting Prez Biden's appointments to balance federal judiciary with more defenders

This new Bloomberg Law piece, headlined "Biden Public Defenders Turned Judges Begin to Make Mark on Bench," details what might be Prez Biden's most significant legacy in his judicial nominations.  I recommend the piece in full, and here is its essential data:

Presidents who’ve prioritized diversity in their judicial appointments have historically focused on expanding the racial and gender makeup of the courts.  But in recent years, judicial advocates have also called for Democrats to appoint more lawyers who’ve represented criminal defendants and civil rights plaintiffs — legal experience that’s been historically underrepresented in the federal judiciary.

Judges who’ve predominantly worked in private practice and as federal prosecutors made up more than 70% of the appellate bench at the time of a 2020 Center for American Progress study.  That’s compared to 1% of circuit judges who spent most of their careers as public defenders or within a legal aid setting.

Biden has sought to upend that trend by making it a priority to appoint former public defenders to the federal bench at a historic pace in just one term.  According to a Bloomberg Law analysis, Democratic Presidents Barack Obama and Bill Clinton added at least 39 and 31 ex-public defenders to the courts, respectively, but that was over two terms.

Out of his 205 life-tenured appointments, 42, or 20%, have spent part of their careers as public defenders, such as Supreme Court Justice Ketanji Brown Jackson.  That number also includes 11 ex-public defenders to the federal circuit courts, breaking the previous record of five former public defenders appointed to those courts under Obama.

Might Donald Trump advocate for the release of all those still serving time for marijuana offenses?

The quetion in the title of this post is prompted by comments made by Donald Trump during a press conference at Mar-a-Lago this past  Thursday.  Notably, as detailed in this effective Last Prisioner Project discussion, we really do not know exactly how many people are serving time in jail or prison for marijuana offenses.  But, as detailed in this Marijuana Moment piece, when former Prez Trump was asked about marijuana legalization, he seemed to suggest he was growing more supportive of the posision and specifically stated that "it’s awfully hard to have people all over the jails that are in jail right now for something that’s legal."  Here are details Marijuana Moment piece:

Former President Donald Trump says he is starting to “agree a lot more” that people should not be criminalized over marijuana given that it’s “being legalized all over the country” — adding that he will “fairly soon” reveal his position on the cannabis legalization measure on the November ballot in Florida, where he is a voter.

“As we legalize it, I start to agree a lot more because, you know, it’s being legalized all over the country,” Trump said at a press conference at Mar-a-Lago on Thursday. “Florida has something coming up. I’ll be making a statement about that fairly soon.”

A reporter had asked about the Biden-Harris administration push to reschedule cannabis, as well as Vice President Kamala Harris, the 2024 Democratic presidential nominee, stating repeatedly that people should not be incarcerated over simple cannabis offenses.  “As we legalize it throughout the country — whether that’s a good thing or a bad thing — it’s awfully hard to have people all over the jails that are in jail right now for something that’s legal,” Trump replied. “So I think obviously there’s a lot of sentiment to doing that.”

While not an explicit endorsement of major marijuana reform, the statement represents another example of Trump departing from the harsh anti-drug rhetoric he’s been employing over this latest campaign, at least when it comes to marijuana. And while it’s unclear whether he will choose to back the Florida cannabis legalization measure that he will have the chance to vote on as a resident, he did not take the opportunity to denounce it, despite Florida Gov. Ron DeSantis’s (R) campaign against the reform measure.

The candidate also discussed people he’s issued presidential pardons for, including Alice Johnson, who was sentenced to life in prison without the possibility of parole over her role in a cocaine trafficking ring in the 1990s.  He said Johnson is a “fantastic woman” who “served 24 years for being on a phone call having to do with drugs, adding that she “was great” and “had another 24 years to go, and it was largely about marijuana, which, in many cases, is now legalized” at the state level.

I am pretty sire that Alice Marie Johnson had served over two decades of a life sentence on charges related to cocaine distribution and money laundering, not marijuana. That Trump now wanted to say her offense was "largely about marijuana" may, in its own way, support a supposition that Trump in a second term might actively seek release of all those still serving time for marijuana offenses.

Notable Sixth Circuit panel habeas opion reversing Ohio death sentence in part "due to the trial court judge’s bias and misconduct"

A helpful reader made sure I did not miss the notable panel opinion issued by the Sixth Circuit earlier this week in Jackson v. Cool, No. 21-3207 (6th Cir. Aug. 8, 2024) (available here). The start of the unanimous opinion will highlight why it seems notable:

The Great Writ of Habeas Corpus is an extraordinary remedy that “guard[s] against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (internal quotation marks omitted).  This case is the epitome of such an extreme judicial malfunction.

Petitioner Nathaniel Jackson was convicted of a capital offense and sentenced to death.  But Jackson’s sentencing proceeding was blatantly unconstitutional at its core due to the trialcourt judge’s bias and misconduct, as well as his exclusion at sentencing of relevant mitigating evidence.  The prejudicial judicial bias and misconduct included numerous ex parte communications between the judge and prosecutor regarding substantive sentencing issues and the ghost writing by the prosecutor of the judge’s opinion sentencing Jackson to death.  In state court, when this unethical conduct came to light, the Ohio appellate courts publicly reprimanded the trial judge and ordered him to conduct new sentencing proceedings: the judge was to “personally review and evaluate the appropriateness of the death penalty” and “prepare an entirely new sentencing entry.”

On remand, Jackson moved to present three additional volumes of mitigating evidence.  The trial judge denied the motion, and he orally resentenced Jackson based on the stale, ten-yearold mitigation record.  A few hours after the resentencing hearing concluded, the judge issued a second opinion sentencing Jackson to death that was functionally identical to the original, corrupted opinion and contrary to the Ohio Court of Appeals’ specific instructions on remand. Nevertheless, the Ohio appellate courts affirmed Jackson’s sentence.  Jackson then filed a petition for a writ of habeas corpus in federal district court.  The district court granted Jackson’s petition on his claim that he was unconstitutionally denied the opportunity to present relevant mitigating evidence at his resentencing proceedings, but it denied Jackson’s other claims, including that the trial judge was unconstitutionally biased.  The warden appeals the district court’s habeas grant, and Jackson cross appeals regarding his judicial-bias and ineffective-assistance-of-counsel claims.

We affirm the district court in part and reverse in part.  We first hold that Ohio’s standard for assessing the potential for judicial bias is contrary to clearly established federal law as defined by the Supreme Court. And on de novo review, Jackson has demonstrated that the trial judge was unconstitutionally biased.  Second, the Supreme Court has clearly established that when a trial court is determining whether to impose the death penalty, capital defendants have a right to present any and all relevant mitigating evidence supporting a sentence less than death, including at resentencing proceedings, and Ohio’s failure to provide Jackson that right violated the Eighth Amendment.  Therefore, we affirm the district court’s issuance of a writ of habeas corpus on Jackson’s mitigating-evidence claim, reverse the district court’s denial of Jackson’s habeas petition on his judicial-bias claim, and remand for further proceedings consistent with this opinion.

Intriguing action, but no formal vote, from US Sentencing Commission on retroactivity of 2024 guideline amendments

As noted in this post yesterday, this afternoon the US Sentencing Commission had a scheduled public meeting, and the big official agenda items were "Possible Vote on Final 2024–2025 Policy Priorities" and "Possible Vote on Retroactivity of Certain 2024 Amendments." And, as noted in this post from earlier today, the Commission did vote, and voted unanimously, for this official set of new policy priorities.  But, interestingly, the Commission did not vote on the issue of retroactivity of certain 2024 amendments.

When reaching the retroactivity issue in the agenda (starting at around the 13:45 minute mark of the meeting recording here), the matter failed "for lack of a motion."  The Commission Chair subsequently explained that "many have called for the Commission to identify clear principles that will guide its approach to retroactivity" and that, "after deep deliberation," the Commission decided to heed those calls and apparently defer any vote on retroactivity. 

Notably, my colleague at the Sentencing Matters Substack, Jonathan Wroblewski, wrote this thoughtful post on this topic titled "Is it Time for the U.S. Sentencing Commission to Issue a Detailed, Written, and Reasoned Opinion on When it Applies Guideline Amendments Retroactively?".   I surmise that the Commission has decided that it is time for a new approach to its retroactivity decision-making, but it is not yet clear just what that now means either for retroactivity decisions generally or for the retroactivity of certain 2024 amendments.  Stay tuned.

Prior recent related posts:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle
• US Sentencing Commission releases over 1200 pages of public comment on proposed priorities
• US Sentencing Commission ... conducting "Public Hearing on Retroactivity" for its proposed 2024 guideline amendments
• US Sentencing Commission votes to adopt priorities that "reflect calls to simplify sentencing, reduce the costs of unnecessary incarceration, and promote public safety"

US Sentencing Commission votes to adopt priorities that "reflect calls to simplify sentencing, reduce the costs of unnecessary incarceration, and promote public safety"

I received an email from the US Sentencing Commission, not long after after its short public meeting today, titled "Embracing the Public’s Ideas to Improve Sentencing, Commission Unanimously Adopts Policy Priorities."  And the title of this post captured the emails subtitle: "Priorities Reflect Calls to Simplify Sentencing, Reduce the Costs of Unnecessary Incarceration, and Promote Public Safety."  And here is the full text of the email, with links from the original:

Each year, the bipartisan U.S. Sentencing Commission votes to adopt priorities that will guide its annual policymaking process.  This summer, the Commission solicited priorities from the public, asking how the agency can improve federal sentencing.  In response, the Commission received more than 1,200 pages of insightful comments from judges, members of Congress, executive branch officials, probation officers, advisory groups, attorneys, professors, advocates, organizations, incarcerated individuals, and others.

Today, the Commission voted unanimously to commit to prioritize one or more of the clear themes that emerged from the comments it has received, which included:

• Simplifying the federal Sentencing Guidelines and clarifying their role in sentencing. This includes revision of the “categorical approach” for purposes of the career offender guideline and possibly amending the Guidelines Manual to address the three-step process and the use of departures and policy statements relating to specific personal characteristics;
• Reducing the costs of unnecessary incarceration;
• Promoting public safety;
• Improving community supervision;
• Expanding the Commission’s use of expertise, evidence, and best practices; and
• Promoting evidence-based approaches to offense and individual characteristics. Read the full list of priorities.

“Today’s vote proves one thing: when you speak to the Commission, you will be heard,” said Judge Carlton W. Reeves, Chair of the Commission. “Our final priorities will allow us to give each public comment the attention it deserves. This is the first step in translating the public’s priorities into policies that improve federal sentencing. As we move forward, we will continue to seek out and obtain guidance from the public and stakeholders across the criminal justice system.” Watch a recording of today's meeting.

A compilation of public comment can be reviewed here. Visit www.ussc.gov for more information about the amendment process.