Tuesday, June 18, 2024

Not quite original(ist) musings on SCOTUS showing little interest in constitutional criminal procedure cases

In this post over at Crime & Consequences noting the Supreme Court's latest criminal statutory case cert grant (flgged here), Kent Scheidegger closes with this notable lament:  

The high court’s apparent lack of interest in the constitutional criminal procedure cases that once made up a large part of its docket is frustrating.  With a solid majority finally in place who are dedicated to the real Constitution that the people actually adopted, there are large piles of pseudo-constitutional barriers to justice that could be corrected.  Yet the majority doesn’t seem to be much interested.

A variation of this frustration often echoes in Orin Kerr's (bemused?) hand-wringing about the fact that the Supreme Court is completing "three straight Terms of deciding no Fourth Amendment cases."  And I certainly have been heard to express disappointment about the Justices' failure to take up consitutional questions related to acquitted conduct and other suspect sentencing practices.  

Because the current Court may not experience changes in membership for at least a few more years, there is every reason to expect its recent cert granting (and cert denial) tendencies will continue for some time.  So Kent and Orin and I and others interested in constitutional criminal procedure cases should probably expect our collective frustrations to continue.  But just why has this historically large part of the Supreme Court's docket in recent years experienced such shrinkage? 

Kent's reference to "the real Constitution," as well as cases still pending before the Justices this Term and the interesting First Amendment case in Vidal v. Elster last week, prompts me to muse with some originalist (though not likley original) thoughts on this front.  As the Vidal case highlights, even Justices who embrace originalist approaches to interpreting the Constitution can reach different conclusions in hard cases.  To borrow a notable passage from Justice Barrett's opinion, there are various "judge-made tests" used by avowed originalists, and the current Justcies may be unqiuely worried that in constitutional criminal procedure cases different Justices may reach different results due to which "judge-made tests" they adopt and how they apply that test. 

A variation of this story defines modern Second Amendment jurisprudence, especially since the Justices in Bruen made up a new originalist test for assessing the constitutionality of gun restrictions.  For two years, we have seen considerable uncertainty and variation in judicial determinations about an array of federal and state gun prohibitions, and the Justices were urged by the US Solicitor General to clean up some of the constitutional messiness via the Rahimi case.   That we still await a ruling in Rahimi suggests the Court is not finding it easy to clarify its originalist Second Amendment.  Meanwhile, at least a half-dozen other federal gun prohibitions are confounding lower courts (with more in the states), all of which the Rahimi ruling seems unlikley to conclusively resolve. 

Why am I not expecting Rahimi to conclusively clarify originalist Second Amendment jurisprudence?  Because two other cases still on the current SCOTUS docket, Smith v. Arizona (dealing with the Confrontation Clause) and Erlinger v. US (dealing with the Jury Trial right), are the continuing echoes of game-changing originalist constitutional criminal procedure rulings from 20 years ago.  In the same Term, Justice Scalia brought originalism to new prominence via Crawford and Blakely, and I am not the only academic who has made a career trying to sort through the proper way to apply an originalist Sixth Amendment to all the intricacied of modern criminal justice decision-making.  That Sixth Amendment jurisprudence has been messy and confusing since Crawford and Blakely does not mean these cases were wrongly decided or misguided (indeed, my love and admiration for the Blakely ruling endures).  But, while none of the current Justices were even on the Court when Crawford and Blakely were decided, they have surely taken note of the steady stream of cert petitions highlighting the challenges of applying an originalist jurisprudence in these spaces.

I could go on and on by noting, for example, the ambivalence of many Justices to how Justice Scalia in Jones and Justice Gorsuch in Carpenter seemed inclined to "originalize" Fourth Amendment jurisprudence.  Also notable, but still unclear, is whether the pending Grants Pass case might lead the current Court to take an originalist Eighth Amendment turn.  The oral argument did not really hint at that possibility, but one never knows. 

Against that backdrop, I will speculated that those Justices who may be most consistently interested in originalist approaches to the Constitution are also the ones who realize how truly hard and contestable originalist doctrines can prove to be, especially for criminal procedure issues in which there is a lot of text, and a lot of history, and a lot of tradition to sort through and (re)interpret.  And the whole Court surely realizes that once its jurisprudence takes a robust originalist turn (see, eg, Blakely, Bruen, Crawford and surely others), it is alwfully hard to turn back.  And, again with recent experiences in mind, an originalist turn in this arena often will entail that criminal defendant of all sorts start looking to make new arguments of all sort that the originalist turn can and should mean even more rights and protections than existing doctrines provide.

Of course, as we get new SCOTUS rulings this week and next, my thinking about originalism and constitutional criminal procedure and the SCOTUS docket may change.  But for now, I fear that Kent and Orin and others may need to be content with a whole bunch of statutory cases and immunity claims. 

June 18, 2024 in Sentences Reconsidered, Who Sentences | Permalink | Comments (18)

US Sentencing Commission releases latest "compassionate release" data through March 2024

The US Sentencing Commission today updates some of its data on sentence reduction motions on this webpage, particularly though this new Compassionate Release Data Report running through the second quarter of USSC Fiscal Year 2024 (meaning through the end of March 2024).   Notably, the latest data run includes information for nearly six months after the Commission's new "sentence reduction" guideline became law, and nearly a year after the Commission submitted this guideline to Congress.

As I have noted before, the long-term data going back to the height of the COVID pandemic period reveals, unsurprisingly, that we now see many fewer sentence reduction motions filed or granted than in years past.  Though there are month-to-month variations, it would be roughly accurate to say recent months see, on average, a few dozen compassionate release motions granted and a couple hundred  motions denied nationwide.  And the number of motions resolved and the grant rates from various districts remain quite different within and among circuits.

There are all sorts of other interesting data points in this new report relating to both the crimes and backgrounds of defendants bringing these motions and getting sentence reductions.  Especially because there are so many elements to sentence reduction motions and so much discretion in the hands of district judges when considering these motions, I continue to find these data stories fascinating, and I am hopeful researchers (and the USSC) will keep exploring how this part of the First Step Act continue to function.

June 18, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

New Prison Policy Initiative briefing explores impact of Dobbs on women under community supervision

I often say to students (and sometimes highlight here) that every big legal story has some kind of sentencing echoes.  This new Prison Policy Initiative briefing makes that point with respect to the Supreme Court's Dobbs ruling two years ago.  The full title and subtitle of this briefing summarizes its coverage: "Two years after the end of Roe v. Wade, most women on probation and parole have to ask permission to travel for abortion care.  Since the 2022 Dobbs decision, 21 states have restricted abortions earlier than the Roe v. Wade standard. Now, more of the 800,000 women on probation and parole must seek abortion care out-of-state — but for many, whether they can get there depends on an officer’s decision." 

Here is an excerpt from the briefing's discussion of its key findings:

To understand how this post-Dobbs landscape impacts women under the U.S.'s massive system of community supervision, we examined standard supervision conditions in each state, along with the number of women who must comply with them. We find that the one-two punch of abortion and supervision restrictions impacts an estimated 4 out of 5 womem (82%) on probation or parole nationwide.  That means that for the vast majority of people under community supervision, the ability to seek abortion care out-of-state is left not to the pregnant person, but to the discretion of a correctional authority, typically their probation or parole officer.

Specifically, we find that, excluding federal probation and post-release supervision, 82% of women on probation and 85% of women on parole live in states that (1) either completely ban abortion or restrict it based on gestational age and (2) list travel restrictions as a standard condition of supervision.

June 18, 2024 in Offender Characteristics, Reentry and community supervision, Who Sentences | Permalink | Comments (11)

Monday, June 17, 2024

"Illegitimate Choices: A Minimalist(?) Approach to Consent and Waiver in Criminal Cases"

The title of this post is the title of this new paper authored by Christopher Slobogin and Kate Weisburd now available via SSRN. Here is its abstract:

Current doctrine justifies many government searches, interrogations, and deprivations of liberty on the ground that the target of the action “voluntarily” agreed to it or waived applicable rights.  The standard critiques of this doctrine — that these choices are often or always coerced, the result of an unconstitutional condition, or inherently shaped by race, gender, and class — have usually been given short shrift by the courts, leading one of us to question whether the practice of using consent and waiver to deprive someone of basic rights and liberties should be abolished. In the meantime, we jointly wondered if there is a more immediate “minimalist” path forward, drawing on the Supreme Court’s own jurisprudence. 

This article takes the position that in many situations the voluntariness of a person’s choice need not be an issue, because the option the government proffers to that person is legally illegitimate.  Specifically, the “illegitimate choice” test we propose would make concerns about the validity of a person’s choice legally irrelevant in three situations: (1) when Supreme Court caselaw, properly construed, has made it so; (2) when the benefit the government offers is premised on acceptance of a condition that is not narrowly tailored to a compelling interest; or (3) when the benefit the government offers is itself unconstitutional. This approach would call into question searches based on the third-party doctrine, promises of leniency during interrogations, many types of pretrial and post-conviction dispositional conditions, certain waivers associated with plea bargaining, some types of special needs searches, and consent searches conducted in the absence of suspicion. In all of these situations, the illegitimate choice test would avoid difficulties with determining whether a choice is coerced or voluntary, while still maintaining consent as a viable option at other criminal justice decision-points.

June 17, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (15)

SCOTUS grants cert to address fraudulent inducement theory of federal criminal fraud

As explained here at SCOTUSblog, the Justice via a new order list has filled in a bit more of its still light docket for next Term:

The justices on Monday morning added four new cases to their docket for the 2024-25 term. In a list of orders from the justices’ private conference last week, the court agreed to tackle issues ranging from the burden of proof for an employer hoping to rely on an exemption from the Fair Labor Standards Act to the pleading standards for cases under the Private Securities Litigation Reform Act.

One of the four cases taken up by SCOTUS today is a criminal fraud case: Kousisis v. USHere is how the cert petition in this case presented  the questions to the Court:

The circuits are split 6-5 on the validity of the fraudulent inducement theory of mail and wire fraud. The Questions Presented are:

Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme.

Whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services.

Whether all contract rights are “property.”

June 17, 2024 in Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (25)

Maryland Governor to issue mass pardons for low-level marijuana offenses estimated to cover over 175,000 convictions

As reported in this Washington Post piece, "Maryland Gov. Wes Moore will issue a mass pardon of more than 175,000 marijuana convictions Monday morning, one of the nation’s most sweeping acts of clemency involving a drug now in widespread recreational use."  Here is more about this high-profile clemency effort:

The pardons will forgive low-level marijuana possession charges for an estimated 100,000 people in what the Democratic governor said is a step to heal decades of social and economic injustice that disproportionately harms Black and Brown people. Moore noted criminal records have been used to deny housing, employment and education, holding people and their families back long after their sentences have been served.

“I’m ecstatic that we have a real opportunity with what I’m signing to right a lot of historical wrongs,” Moore said in an interview. “If you want to be able to create inclusive economic growth, it means you have to start removing these barriers that continue to disproportionately sit on communities of color.”

Moore called the scope of his pardons “the most far-reaching and aggressive” executive action among officials nationwide who have sought to unwind criminal justice inequities with the growing legalization of marijuana. Nine other states and multiple cities have pardoned hundreds of thousands of old marijuana convictions in recent years, according to the National Organization for the Reform of Marijuana Laws....

The pardons, timed to coincide with Wednesday’s Juneteenth holiday, a day that has come to symbolize the end of slavery in the United States, come from a rising star in the Democratic Party and the lone Black governor of a U.S. state whose ascent is built on the promise to “leave no one behind.”...

Maryland’s pardon action rivals only Massachusetts, where the governor and an executive council together issued a blanket pardon in March expected to affect hundreds of thousands of people....

Maryland officials said the pardons, which would also apply to people who are dead, will not result in releasing anyone from incarceration because none are imprisoned. Misdemeanor cannabis charges yield short sentences and prosecutions for misdemeanor criminal possession have stopped, as possessing small amounts of the drug is legal statewide.

Moore’s pardon action will automatically forgive every misdemeanor marijuana possession charge the Maryland judiciary could locate in the state’s electronic court records system, along with every misdemeanor paraphernalia charge tied to use or possession of marijuana. Maryland is the only state to pardon such paraphernalia charges, state officials said.

June 17, 2024 in Clemency and Pardons, Drug Offense Sentencing, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (15)

Saturday, June 15, 2024

Recent active discussions regarding Ohio's dormant death penalty

I have long viewed Ohio as a fascinating death penalty state, though that view is surely influenced by the fact I teach and write about capital punishment here in the Buckeye State.  Especially for a state outside the deep south, Ohio has long had a active death system: Ohio juries have imposed a relatively large number of death sentences and Ohio was behind only a few states in the total number of executions for the first dozen of so years starting the 21st century.  

But lots of litigation over execution methods and a range of other factors have contrubuted to a significant reduction in recent years in the (a) the size of Ohio's death row, (b) the number of new death sentences, and (c) completed executions in Ohio.  Of particular note, there has not been an execution in Ohio since summer 2018, and it certainly seems that current Ohio Governor Mike DeWine is  disinclined to preside over any executions while he is in office (which will be through 2026).  But the dormant capital punishment reality has not precluded active capital punishment discussions, as highlights by these recent stories:

From DPIC, "Ohio Legislative Black Caucus Identifies Death Penalty as a Legislative Priority Due to Legacy of Racial Violence and Bias"

From Fox News, "Ohio sheriff fed up with crime stemming from border crisis calls for death penalty renewal"

From Ohio Capital Journal, "Backers believe nitrogen hypoxia can jumpstart Ohio’s stalled capital punishment system""

From Spectrum News, "Gov. DeWine delays 3 more executions"

From WCMH, "Move to abolish Ohio’s death penalty renewed"

From WKRC, "Ohio considers 2 new death penalty bills that would either end executions or restart them"

June 15, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (52)

Friday, June 14, 2024

Part 2 of "Drugs on the Docket" podcast on fake stash-house stings now available

6a00d83451574769e202b751a4fdae200c-320wiIn this post from last week, I highlighted that the Drug Enforcement and Policy Center at The Ohio State University had just started releasing episodes from Season Two of the "Drugs on the Docket" podcast.  (All of the first season's episodes are all still available via Apple Podcasts and YouTube.)  As noted in the prior pose, this first episode to kick-off Seanson Two was actually part of a extended discussion that was so chock full of content that it became a two-part series.  And, as detailed on this podcast webpage, today brings the release of the second episode of this new season. which is described this way:

Season 2 Episode 2 – Compassionate release for stash house sting clients with Alison Siegler and Erica Zunkel (Part 2 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, continue their conversation with Alison Siegler and Erica Zunkel.  Part 2 covers how the University of Chicago Law School’s Federal Criminal Justice Clinic pushed the boundaries of criminal defense and leveraged the First Step Act to secure compassionate release for stash house sting defendants who were not part of the clinic’s “criminal class action” litigation.

Alison Siegler is Clinical Professor of Law and Founding Director of the Federal Criminal Justice Clinic at the University of Chicago Law School; Erica Zunkel is Clinical Professor of Law at the University of Chicago Law School and teaches in the school’s Criminal and Juvenile Justice Clinic.

As I mentioend before, the many remarkable legal and policy stories that surround the fake stash-house stings continue to amaze me.   I remain extremely grateful to have been part of efforts to capture a small parts of amazing stories via these podcasts.  I once again encourage everyone to have a listen.

Prior recent related post:

June 14, 2024 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, June 12, 2024

"The White House isn’t ruling out a potential commutation for Hunter Biden after his conviction"

The title of this post is the headline of this notable new AP article.  Here is how it begins: 

The White House is not ruling out a potential commutation for Hunter Biden, the president’s son who was convicted on three federal gun crimes and is set to be sentenced by a judge in the coming months.  “As we all know, the sentencing hasn’t even been scheduled yet,” White House press secretary Karine Jean-Pierre told reporters Wednesday on Air Force One as President Joe Biden traveled to the Group of Seven summit in Italy.

She said she has not spoken to the president about the issue since the verdict was delivered Tuesday. Biden definitively ruled out pardoning his son during an ABC News interview last week. “He was very clear, very upfront, obviously very definitive,” Jean-Pierre said of the president’s remarks about a potential pardon.  But on a commutation, “I just don’t have anything beyond that.”

A pardon is an expression of forgiveness of a criminal offense that restores some rights, such as voting, that a person loses upon conviction. Meanwhile, a commutation reduces a sentence but leaves the conviction intact.

The position from the White House is a shift from what it said in September, when Jean-Pierre was asked whether the president would “pardon or commute his son if he’s convicted.” The press secretary responded at the time that “I’ve answered this question before. It was asked of me not too long ago, a couple of weeks ago. And I was very clear, and I said no.”

Update on June 13This AP article reports on comments made by President Biden on this topic.  It startes this way: "President Joe Biden said Thursday that he will not use his presidential powers to lessen the eventual sentence that his son Hunter will receive for his federal felony conviction on gun crimes."

June 12, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (12)

Tuesday, June 11, 2024

Notable new Second Circuit opinion limits grounds for granting 3582(c)(1)(A) sentence reduction

A helpful reader made sure I did not miss a notable new opinion today from a Second Circuit panel reversing a notable sentence reduction under 18 U.S.C. § 3582(c)(1)(A).  The 28-page ruling in US v. Fernandez, No. 22-3122 (2d Cir. June 11, 2024) (available here), gets started this way:

This appeal raises questions as to which claims and arguments a district court is permitted to consider as “extraordinary and compelling reasons” in support of a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), commonly known as a motion for “compassionate release.” Defendant-Appellee Joe Fernandez, then imprisoned in a federal penitentiary, filed this compassionate-release motion seeking a reduction of the mandatory life sentence he was serving for his conviction of murder for hire, in violation of 18 U.S.C. § 1958.

Patrick Darge had hired Fernandez as a “backup shooter” in a scheme to murder two Mexican drug cartel members who had come to New York City to collect payment for more than 270 kilograms of cocaine the cartel had sold to local drug trafficker Jeffrey Minaya.  While Darge (and several other codefendants implicated in the scheme) pleaded guilty to various narcotics, firearms, and murder charges and cooperated with the government, Fernandez went to trial and was convicted.

In 2021, Fernandez filed the instant motion for compassionate release in the district court arguing, in relevant part, that two “extraordinary and compelling reasons” warranted his release: (1) his potential innocence in light of the questionable credibility of Darge, the government’s key witness at trial, and (2) the significantly lower sentences imposed on Fernandez’s co-defendants.  The United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) granted the motion on these grounds, reduced Fernandez’s sentence to time served, and ordered his release.

The government appealed, arguing that the district court abused its discretion because potential innocence is never a permissible “extraordinary and compelling reason[]” for a sentence reduction within the meaning of 18 U.S.C. § 3582(c)(1)(A), and that Fernandez’s sentencing disparity is not an “extraordinary and compelling reason[]” for a sentence reduction on the facts of this case.  We agree with the government that a compassionate release motion is not the proper vehicle for litigating the issues Fernandez has raised, irrespective of whether his mandatory life sentence is unjust. We therefore reverse the judgment of the district court.

The discussion of sentencing disparity as a legal basis for possible sentence reduction is quite nuanced, and it includes a lengthy footnote starting with this sentence: "We cannot foreclose the possibility that significant sentencing disparities, even between a defendant who went to trial and a co-defendant who pleaded guilty and cooperated, might, in some unusual circumstances, warrant a finding of 'extraordinary and compelling' reasons to grant a sentence reduction."   In addition, the innocence discussion is also dynamic.  But, nuances aside, this ruling would seem to greatly hinder claims of actual innocence or general co-defendant sentencing dispartity as a basis for seeking a sentece reduction.

June 11, 2024 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (14)

What facts should matter (and not matter) most at federal sentencing after Hunter Biden is convicted by jury on three felony counts?

These are heady times for historic sentencing proceedings.  As New York state actors are working through the process of preparing for former President Donad Trump's state sentencing after his conviction last month on 34 state felony counts following a lengthy trial, we know now that federal actors need to start working through the process of preparing for current President Joe Biden's son, Hunter, to be federally sentenced after his conviction today on three federal felony counts following a short trial.  Here are the basics via the New York Times' latest live update:

A jury in Wilmington, Del., on Tuesday found Hunter Biden, President Biden’s long-troubled son, guilty of three felony counts of lying on a federal firearms application in 2018, a grievous personal blow to the Biden family as his father enters the final months of a brutal re-election campaign.  He could face up to 25 years in prison, but first-time offenders who did not use their weapons to commit a violent crime typically receive no jail time....

Here’s what else to know:

A sentencing date was not set: The judge in the case, Maryellen Noreika, did not set a date for sentencing, but said it would typically be about 120 days after the verdict — that’s early October, or about a month before the election. Although the maximum possible sentence Mr. Biden faces is more than two decades behind bars and $750,000 in fines, federal sentencing guidelines call for a fraction of that penalty.

No pardons are coming: President Biden has said he will not pardon his son.  The president kept his distance from the trial and was out of office on Oct. 12, 2018, when Hunter Biden asserted he was drug-free on a background check at a time when he was addicted to crack cocaine.

His legal troubles are not over: The Delaware case, brought by the special counsel David C. Weiss, is widely regarded as the least serious of the two federal indictments against Hunter Biden brought last year.  He still faces serious tax charges in Los Angeles stemming from his failure to pay the government during a yearslong crack, alcohol and spending binge; the trial is scheduled to start in September.

I have not yet sought to work through the likely (advisory) guideline calculations for Hunter Biden, but I have already seen reports that the estimated guideline range would be for over a year of federal prison time.  Even after the Supreme Court made the guidelines advisory, federal judges are duty bound to still consider them at sentencing along with the other sentencing factors detailed by Congress in 18 USC § 3553(a).

But, of course, many of the instructions in 3553(a) are quite vague -- eg, judges must consider the "nature and circumstances of the offense and the history and characteristics of the defendant."  That vague phrase and others in federal sentencing law prompt the question in the title of this post.  Should Judge Noreika give particular weight to, or make a focused effort to limit her consideration of, Hunter Biden's struggles with addiction at the time of his offenses?  His indictments on various other alleged crimes and other alleged misbehaviors?  The wide range of unique consequences associated with being the son of a president?

June 11, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (37)

Monday, June 10, 2024

Flagging challenge to Arizona's suspect application of Miller juve LWOP limis

Adam Liptak has this new piece at the New York Times detailing a pending Supreme Court challenge to how Arizona had dealt with Miller's Eighth Amendment limit on juve LWOP sentences. Here is the piece's full headline: "In Arizona, Life Sentences for Juveniles Test Supreme Court Precedents: The justices will soon decide whether to hear a case that could affect more than two dozen youths sentenced to die in prison." Here is an excerpt:

The new case involves Lonnie Bassett, who was convicted of two murders committed when he was 16. When he was sentenced in 2006, Arizona law did not give the judge the option of sentencing him to anything but life in prison without the possibility of parole.

In a unanimous opinion last year, the Arizona Supreme Court did not dispute that. But it said an idiosyncratic feature of the state law, allowing judges to choose between “natural life” without the possibility of release in any fashion and life without parole but with the theoretical possibility of clemency from the governor, rendered it constitutional.

Rejecting the usual understanding of the governing precedent, the court said, “Miller and its progeny do not specifically require the availability of parole when sentencing a juvenile offender.”

Lawyers for Mr. Bassett asked the U.S. Supreme Court to intervene, saying that his case could determine the fates of more than two dozen other juvenile offenders. The case, they wrote, “presents exceptionally significant questions about gamesmanship and the supremacy of federal law.”

June 10, 2024 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

As SCOTUS heads into homestrech, any prediction for any criminal justice "sleeper" opinions?

A relatively boring new order list from the Supreme Court this morning has lead my mind to wandering and wondering about what rulings the Justices will issue this Thursday and in the weeks to come.   The Justices still have nearly 30 cases to resolve, which means an average of nearly ten per week over the next three weeks if they hope to wrap up the Term by the end of June.  I would guess we should expect, maybe, five rulings this week, then closer to ten next week and then a final big closing batch the last week of June.  But that's a lot to get done in a short period, and maybe the Justices will need a few days into July to wrap it all up.

Whatever the particulars of the fin-de-terme pacing by SCOTUS, we know a whole bunch of major rulings are coming soon on criminal and non-criminal issues.  "Major" non-criminal rulings are coming on topics ranging from abortion to federal agency powers to social media moderation to federal tax authority.  "Major" criminal rulings are coming in topics ranging from presidential criminal immunity to key Jan 6 charges to Second Amendment and Eighth Amendment limits on criminal statutes.  And, of course, there are a number of "minor" cases still pending, and I wanted to flag a few that, depending on how the Justices rule, could certainly turn into "major" cases. 

As the title of this post reveals, I think of "minor" cases that turn into "major" cases as "sleepers," and I would categorize one of my favorite sentencing cases, Blakely v. Washington, as a sleeper.  (The Blakely precursor, Apprendi v, New Jersey, likely ought also be considered a sleeper, but the follow-up of US v. Booker certainly was not flying below the radar before it was decided.)  And perhaps the Sixth Amendment is a sleeper amendment, as the two cases on my current sleeper list are Sixth Amendment matters (with thanks to SCOTUSblog for links/descrptions):

Smith v. ArizonaNo. 22-899 [Arg: 1.10.2024]
Issue(s): Whether the confrontation clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.
Erlinger v. U.S.No. 23-370 [Arg: 3.27.2024]
Issue(s): Whether the Constitution requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were “committed on occasions different from one another,” as is necessary to impose an enhanced sentence under the Armed Career Criminal Act.

There are a number of other lower-profile criminal cases which could prove quite interesting for various reasons, eg, Diaz v. U.S.No. 23-14 and Snyder v. U.S.No. 23-108, but Smith and Erlinger seem to me like the cases getting relatively less attention for which a "big" SCOTUS ruling could end up having a surprisingly big impact.

I am certain my ivory tower realities (and my particular interest in sentencing topics) influences my sleeper list.  I'd be eager to hear others' views in the comments, either about other possible criminal justice sleeper cases or about any of the higher-profie criminal cases (eg, Rahimi, Fischer, Grants Pass, Trump) that they think might produce an opinion that defies expectations.

June 10, 2024 in Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Saturday, June 08, 2024

"DPA Discounts"

The title of this post is the title of this new paper now available via SSRN authored by Todd Haugh and Mason McCartney. Here is its abstract:

There is a longstanding debate over the propriety of corporate deferred and nonprosecution agreements, those semi-private settlements entered into between prosecutors and companies under criminal investigation.  That debate is occurring in the shadow of the growing use of these DPAs and NPAs, a trend that recent DOJ policy changes suggest will only increase.  Regardless of where one stands on the debate, all agree that the fair, consistent, and transparent awarding and application of these agreements is paramount. 

Based on an empirical analysis of more than ten years of DPAs and NPAs used in Foreign Corrupt Practices Act cases, we find that the monetary penalties imposed on companies are consistently discounted below the low end of the fine range calculated pursuant to the Organizational Sentencing Guidelines, sometimes even below the monetary benefits companies received from their wrongdoing.  Further, the culpability score calculations made pursuant to the Guidelines, which are designed to calibrate a company's ultimate penalty with its level of wrongdoing, are not statistically significant in determining penalties.  Instead, it appears a hardened norm has developed at the DOJ of giving an almost uniform 25% discount off the low end of the fine range regardless of a company's culpability.  This norm is remarkably consistent despite wide variability in corporate behavior and the likely bargaining positions of prosecutors and corporate defendants.  These findings call into question the current oversight of DPAs and NPAs and, ultimately, their use in combatting corporate crime, thereby shedding new empirical light on what has become the primary means of holding our most high-profile corporate wrongdoers accountable.

June 8, 2024 in Federal Sentencing Guidelines, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (55)

Thursday, June 06, 2024

US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle

USSC-Seal_vFFLast Friday, the US Sentencing Commission released this interesting document, its "Federal Register Notice of Proposed 2024-2025 Priorities."  I had been waiting to get an "official" email from the sentencing commission describing the document before blogging about it, and late yesterday that email came with this heading: "A Request from Judge Carlton W. Reeves, Chair, U.S. Sentencing Commission."  Here is the text of the email, which serves to summarize the gist of the Federal Register Notice:

I’m writing to ask you for a small favor. Most summers, the Sentencing Commission announces the work we plan to prioritize over the coming year.  This summer, to mark the 40th anniversary of the Commission’s creation (and twenty years post Booker), we’re doing something different. We’re asking people – including you – to tell us what to do this year and in the years to come.

My request is this: please take five minutes of your time to tell the Commission how we can create a fairer, more just sentencing system.  Tell us how to revise the Guidelines.  Tell us what issues to study or what data to collect.  Tell us what workshops to conduct, what hearings to hold, what advisory groups to convene, or what ways the Commission can better serve you.  Or even just tell us what big picture issues you’d like us to tackle – or what technical problems you’d like us to look into.

Trust me, I know how busy daily lives are, so we’ve made it easy to give us your thoughts.

You can type a paragraph (or even a sentence or two!) into our Public Comment Submission Portal at: https://comment.ussc.gov.  If you want to write a letter, you can submit it through the Portal, too, or via snail mail to United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 20002-8002, Attention: Public Affairs – Priorities Comment.

It doesn’t matter how you speak to us. And it doesn’t matter how short or long your comment is.  What matters is that you speak to us.  Please encourage your colleagues to do the same.

One comment can make the difference. Remember: when you speak to the Commission … you will be heard.


Carlton W. Reeves

I am very pleased that the Commission, after two years of intricate work on a range of pressing issues, is now asking for help while seemingly being prepared to take a big picture look at the full sentencing system and the Commission's own work therein. Notably, the formal Federal Registar Notice frames this big picture inquiry in terms of key statutory provision of the Sentencing Reform Act. Here is how it substantively starts:

In light of the 40th anniversary of the Sentencing Reform Act of 1984, Pub. L. 98–473, 98 Stat. 1987 (1984), the Commission intends to focus on furthering the Commission’s statutory purposes and missions as set forth in the Sentencing Reform Act, including:

(1) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . assure the meeting of the purposes of sentencing”—namely, rehabilitation, deterrence, just punishment, and incapacitation. 28 U.S.C. 991(b)(1)(A).

(2) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities.” 28 U.S.C. 991(b)(1)(B).

(3) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . reflect, to the extent practicable, advancement of knowledge of human behavior as it relates to the criminal justice process.” 28 U.S.C. 991(b)(1)(C).

(4) “[M]easuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing.” 28 U.S.C. 991(b)(2).

There is a lot more to the USSC's official notice (in pdf form here), but the message from the Commission seems pretty clear: it is prepared to, and is perhaps even eager to, start (re)considering any and all aspected of the federal sentencing system.  Kudos to the USSC for starting off its next cycle of work this way.

June 6, 2024 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, June 05, 2024

Louisiana legislature passes law authorizing surgical castration as punishment for child sex crimes

As reported in this AP article, "Louisiana judges could order surgical castration for people convicted of sex crimes against young children under legislation approved Monday, and if Republican Gov. Jeff Landry signs it into law, the state apparently would be the first with such a punishment."  Here is more:

The GOP-controlled Legislature passed the bill giving judges the option to sentence someone to surgical castration after the person has been convicted of certain aggravated sex crimes — including rape, incest and molestation — against a child under 13.

A handful of states — including California, Florida and Texas — have laws in place allowing for chemical castration. In some of those states, offenders can opt for the surgical procedure if they prefer. Bu the National Conference of State Legislatures said it is unaware of any states that allow judges to impose surgical castration.

For more than 16 years, judges in Louisiana have been allowed to order those convicted of such crimes to receive chemical castration, though that punishment is rarely issued. Chemical castration uses medications that block testosterone production to decrease sex drive. Surgical castration is a much more invasive procedure....

Currently, there are 2,224 people imprisoned in Louisiana for sex crimes against children younger than 13. If the bill becomes law, it can only be applied to those who have convicted a crime that occurred on or after Aug. 1 of this year....

If an offender “fails to appear or refuses to undergo” surgical castration after a judge orders the procedure, they could be hit with “failure to comply” charge and face an additional three to five years in prison, based on the bill’s language. The legislation also stipulates that a medical expert must “determine whether that offender is an appropriate candidate” for the procedure before it’s carried out.

Louisiana’s current chemical castration law has been in place since 2008 but officials said from 2010 to 2019, they could only find one or two cases where it was used.

June 5, 2024 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Tuesday, June 04, 2024

"'Cruel and Unusual' in 1689, 1791, and 1868: Shifts in Incorporation"

The title of this post is the title of this notable article that I just came across on SSRN authored by Gregory Velloze.  Here is its abstract:

Recently, the Supreme Court has acknowledged the scholarly debate over whether to apply the historical understanding of the Bill of Rights as ratified in 1791 or as incorporated through the Fourteenth Amendment in 1868.  This acknowledgment raises two important issues with regards to the Cruel and Unusual Punishments Clause.  First, the Cruel and Unusual Punishments Clause was copied from the English Bill of Rights in 1689, generating a third, additional time period relevant to its historical understanding.  Second, the more textualist framework of the Cruel and Unusual Punishments Clause allows for more relatively bounded language and interpretation, which could remain unchanged through each time period.  And if the Eighth Amendment’s textual principles could remain intact, even while its expected applications changed over time, each incorporation would represent a shift in construction rather than in a shift in interpretation.  As such, the Cruel and Unusual Punishments Clause maintains its longstanding function of prohibiting punishments that are unjustifiably more severe (cruel) and contrary to the ordinary standards of law (unusual) despite changing expected applications against extralegal courts, federal overreach, and discrimination. 

June 4, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Another notable press release from Senator Kennedy about US Sentencing Commission decision-making

In this post from April, I highlighted a notable press release from Senator John Kennedy concerning a bill he introduced, titled the  "Consensus in Sentencing Act," which would require amendments to the US Sentencing Guidelines to receive five votes from the Commission’s seven voting members.  I mentioned at the time that I doubted this bill would get enacted anytime soon, if ever, but that the bill's very introduction highlighted that recent actions of the Commission are garnering notable attention.

Against that backdop, this new press release from Senator John Kennedy declares in its title "Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines." Here is the main text:

Sen. John Kennedy (R-La.), a member of the Senate Judiciary Committee, met with Judge John Gleeson, a member of the U.S. Sentencing Commission, to discuss the unprecedented recent breakdown in bipartisan decision-making at the Commission.

In the meeting, Kennedy shared his concerns about the partisan path that the Commission has taken in recent years.  In a sharp break from its traditional bipartisan practices, the Commission has forced through several major policy changes to federal sentencing rules on a party-line basis.

Gleeson acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.

“We’re talking about public safety and the rule of law here, and I’m very, very glad to hear that the Commission is returning to its history of making changes only when there’s bipartisan agreement. I look forward to seeing the fruits of this commitment,” said Kennedy.

I believe that US Sentencing Commissioner Gleeson is awaiting reconfirmation by the US Senate to serve another term on the USSC.  So I suppose it is not too unusual for Commissioner Gleeson to be meeting with Senator Kennedy, but I am unsure how a single commissioner (who is not the Chair) can fully predict the future actions of the full Commission.  But, for anyone following the (sentencing-nerd) drama of US Sentencing Commission decision-making, this latest press release reflects another interesting chapter in the story.

June 4, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Can State Supreme Courts Preserve — or Expand — Rights?"

The title of this post is the title of this very lengthy new New Yorker piece by Eyal Press.  The subtitle highlights its themes: "With a lopsided conservative majority on the U.S. Supreme Court, progressive activists are seeking legal opportunities in state constitutions."  Though covering lots of legal areas, the article discusses Eighth Amendment issues at various points.  Here is one excerpt of a piece worth reading in full:  

Between sessions at the N.Y.U. symposium [on state constitutional law], I went to a café to meet Kyle Barry, an advocate who hopes that a similar pattern might play out in the movement for criminal-justice reform.  Barry came to the conference from San Francisco, where he directs the State Law Research Initiative, a nonprofit organization whose mission is to limit extreme sentences and address inhumane prison conditions by strengthening state-constitutional rights.  Criminal-justice scholars have traditionally framed mass incarceration as a national phenomenon driven by such harsh federal legislation as the 1994 crime bill.  But, as the authors of a recent Iowa Law Review article note, “ninety percent of people confined in U.S. prisons are confined under state laws.”  Given this, the authors ask why state courts have been “missing from the debate” about how to curb excessive punishment regimes.

Barry’s organization hopes to address this gap.  He told me that state litigation was especially urgent because the Supreme Court has “completely abdicated” enforcing constitutional rights in the criminal-justice system, rubber-stamping extreme sentences that many other countries prohibit.  In most of Europe, he noted, the sentence of life without parole is unheard of.  In 2022, Canada’s Supreme Court ruled unanimously that such sentences were cruel and unconstitutional for offenders of any age.  In the U.S., as of 2020, sixty thousand people were serving what Barry calls “death in prison” sentences — more than in the rest of the world combined.  Although the Miller ruling forbade mandatory impositions of life without parole for juveniles, it didn’t ban them altogether.  And a more recent Supreme Court opinion, Jones v. Mississippi, written by Justice Brett Kavanaugh, relieved judges of having to establish that a juvenile is “permanently incorrigible” before issuing such a sentence.

In a scathing op-ed in the Washington Post, the legal scholar John Pfaff argued that the Jones ruling demonstrated that America was willing “to throw lives away.”  Yet Barry told me that he felt optimistic about the possibilities for state reform, naming Michigan, in addition to Washington, as a place where a high court had recently extended Miller to young adults.  Lauren McLane, the law professor fighting to reduce the sentence of Christopher Hicks, joined us at the café, dressed in a gray University of Wyoming sweatshirt. McLane and Barry had first communicated a few weeks earlier, after she’d read comments that he’d made on a Listserv about Commonwealth v. Mattis, a case in which the Supreme Judicial Court of Massachusetts banned life without parole for “emerging adults” — defined as anyone between eighteen and twenty-one.  The ruling, which was made in January, cited the ban on “cruel or unusual punishment” in the Massachusetts constitution, and also the principle that Eighth Amendment jurisprudence should be informed by “the evolving standards of decency that mark the progress of a maturing society” — a standard that the U.S. Supreme Court itself has endorsed.

June 4, 2024 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (21)

Monday, June 03, 2024

Notable new accounting of parole practices in South Carolina

In this post a couple of weeks ago, I flagged this Bolts article about parole practices in Virginia.  That detailed piece detailed bow parole grants have declined considerably in the Old Dominion State.  Now Bolts has a new piece focused on parole practices in the Palmetto State titled "Parole Plunges in South Carolina as Governor-Appointed Board Issues Denial After Denial."  I also recommend this piece in full, and here is how it gets started:

After appearing before the South Carolina Board of Paroles and Pardons more than 500 times in the past 35 years, lawyer Douglas Jennings announced last year that he had participated in his final hearing.  It had become routine for the board to reject his clients, regardless of how much he showed that they’d changed since their crime.  “I just couldn’t justify taking somebody’s money as a fee to appear before the parole board when I didn’t feel good about being able to produce the right results for them,” he told Bolts.

The panel, which Jennings has nicknamed “the rejection board”, has made it increasingly difficult for prisoners to win parole in South Carolina. In 2018, it released roughly four out every 10 people who applied.  The odds of release have declined since then: By 2022, the board only approved one out of every 10 petitions.  Last year, the board’s grant rate was seven percent.  This downward trend has continued into 2024. In the first four months of this year, the board approved only 5 percent of more than 900 parole applications, according to data provided by the board.

Declining parole rates in South Carolina are part of a national trend.  Parole, which permits early release for eligible prisoners who exhibit good behavior and have a low risk of committing another crime, has fallen across the country in recent years as parole boards have succumbed to political pressure and media narratives that stoke fears about crime. Between 2019 and 2022, grant rates plummeted in 18 out of 27 states surveyed by the the Prison Policy Initiative, a criminal justice reform research organization.  Often, this decline has directly stemmed from state officials’ desire to crack down on release, and to the professional and ideological backgrounds of the people they appoint to parole boards, as Bolts has reported recently about the parole boards in Alabama and Virginia.

June 3, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Supreme Court grants cert on yet another "crime of violence" case

Over at SCOTUSblog here, John Elwood in one of his indispensble "Relist Watch" posts jokingly described the Supreme Court's jurisprudence around violent predict offenses under federal law as an "apparent effort to create perpetual full employment for federal sentencing lawyers."  That effort got yet another boost this morning from this new SCOTUS order list granting cert in Delligatti v. United States, No. 23-825, which presents this question (drawn from this cert petition):

Under 18 U.S.C. §  924(c)(3)(A), a felony qualifies as a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Courts have disagreed about how to apply use-of-force language to crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action.

In the decision below, the Second Circuit held that any crime requiring proof of death or bodily injury categorically involves the use of physical force, even if it can be committed through inaction—such as by failing to provide medicine to someone who is sick or by failing to feed a child....

The question presented is: Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

Though I would actually prefer SCOTUS to be talking up a lot more non-"crime of violence" sentencing cases, I get a strange kick out of the fact that the predicate crime definition issue here could engage generations of philosophers who have debated the moral distinctions between consequences resulting from action and inaction.  Though I doubt the famous trolley problem developed by Philippa Foot and Judith Jarvis Thomson will be central to any amicus briefs in Delligatti, the issue in this case is a reminder that even mind-numbing technicalities in criminal statutes necessarily raises an array of deep philosophical questions about law and life.

Editor's note: upon first blogging, I wrongly assumed Delligatti was an ACCA case, but it is not.  I think I have now properly corrected this post and I thank the commentor for kindly bringing my mistake to may attention.  (And, importantly, ACCA jurisprudence will alos be impacted by the eventual ruling in Delligatti.)

June 3, 2024 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (17)

Saturday, June 01, 2024

"Congress Must Abolish Acquitted Conduct Sentencing"

The title of this post is the title of this new Law 360 commentary authored by Marc Levin and Martín Sabelli. I recommend the ful piece, and here are snippets:

As shocking as this might be, federal law allows judges to impose a sentence based on acquitted conduct if the jury has convicted on at least one count.

Why? Because juries decide guilt or innocence using a reasonable doubt standard, and judges impose sentences based on a "more likely than not" standard.... Does this scenario seem even remotely close to what the framers intended by trial by jury, or what most of us believe is fair?

Allowing judges to impose severe sentences where juries have acquitted defendants undermines the fundamental principles of trial by jury, innocent until proven guilty, due process, double jeopardy and reasonable doubt — the heart of the Fifth and Sixth Amendments. Shifting this power from juries to judges also opens the door for individual biases, because the inherent diversity of a jury operates as a check on individual biases.

Unsurprisingly, this practice has been criticized by advocates across the political spectrum. While federal courts have allowed the practice, as our prisons have overflowed, some state courts have held the practice unconstitutional. Also, a host of prominent jurists, including Justices Antonin Scalia, Ruth Bader Ginsburg and Clarence Thomas, have criticized the practice.

Can we fix this problem and restore trial by jury as intended by the framers? On April 17, the U.S. Sentencing Commission — a body charged with revising sentencing rules — imposed some limits on the use of acquitted conduct in sentencing. While these changes are a welcome improvement, they still leave the door open to considering acquitted conduct in sentencing in many circumstances.

We need to go further. Congress should give life to the individual rights embedded in the Fifth and Sixth Amendments by eliminating the practice altogether.

In a positive step, a coalition of Democrats and Republicans introduced a bill to end this practice last year. The bipartisan bill, called the Prohibiting Punishment of Acquitted Conduct Act, would prohibit federal judges from considering conduct for which an individual was acquitted, unless consideration of the conduct would reduce the sentence. An identical bill passed the U.S. House of Representatives in the last Congress by a vote of 405 to 12. The bill recently passed the House Judiciary Committee unanimously. The Senate should now pass this bipartisan bill....

Jury trials — and respect for jury verdicts — protect each of us, our families and our communities. Unjust technicalities like sentencing for acquitted conduct undermine the role of juries and our bedrock founding principle that people should not be punished until proven guilty.

June 1, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Friday, May 31, 2024

Will Donald Trump make a statement on his behalf at his upcoming sentencing?

Though Donald Trump just prior to trial stated that he would testify at his his New York state criminal trial, he ultimately decided  not to take the stand.  That choice was greatly influenced, I suspect, by the fact that taking the stand at trial would have subjected him to cross-examiniation by the prosecution and the risk of additional legal troubles if he were not entirely truthful when giving sworn testimony under oath.

But with the New York criminal jury trial concluded and Trump's sentencing on 34 felony counts now scheduled for July 11, what Trump can say on his own behalf takes on a different posture.  Specifically, New York criminal procedure law provides that before sentencing, the court must hear not only from the prosecution and defense attorneys, but the "defendant also has the right to make a statement personally in his or her own behalf."  I presume this personal statement in the courtroom prior to sentencing does not have to be provided under oath, nor is it subject to cross-examination.  In other words, Trump will have an opportunity to make a statement in the courtroom at his sentencing that is not subject to some legal and strategic consequences that likely led him to decide not to testify during his trial.

That said, any statement by Trump at his sentencing still could be full of legal risks.  In some cases, defense attorneys counsel their clients not to make any significant statements at sentencing if fearful that statement might rub the sentencing judge the wrong way.  And, in light of Trump's many out-of-court comments about his legal predicament, I could not help but thinking of this legendary passage from the late Judge Marvin Frankel's legendary book, Criminal Sentences: Law Without Order

[During] a casual anecdote over cocktails in a rare conversation among judges touching the subject of sentencing,  Judge X ... told of a defendant for whom the judge, after reading the presentence report, had decided tentatively upon a sentence of four years' imprisonment.  At the sentencing hearing in the courtroom, after hearing counsel, Judge X invited the defendant to exercise his right to address the court in his own behalf.  The defendant took a sheaf of papers from his pocket and proceeded to read from them, excoriating the judge, the "kangaroo court" in which he'd been tried, and the legal establishment in general.  Completing the story, Judge X said, "I listened without interrupting.  Finally, when he said he was through, I simply gave the son of a bitch five years instead of the four." 

I think it will be quite interesting to see if Trump decides to exercise his right under New York law "to make a statement personally" prior to his sentencing.  The predicted strategic costs/benefits for testifying at trial led to nearly all legal pundits predicting Trump would not take the stand, and they proved right.  But with the calculations and context different in a sentencing proceeding, I am not quite sure what to expect.   

May 31, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (15)

Thursday, May 30, 2024

Some sentencing basics after former President Donald Trump's convictions on 34 felony New York counts

I am not an expert on New York sentencing law and practice, though I expect a whole lot of folks will soon be opining on these topics now that former President Donald Trump has been convicted by a jury on 34 New York felony counts.  This CBS News piece seems to review some sentencing basics pretty well:

Trump was convicted by the jury Thursday on 34 felony counts for falsifying business records to conceal a $130,000 payment to adult film star Stormy Daniels to buy her silence before the 2016 presidential election.  The jury in Manhattan returned a guilty verdict after a trial that stretched six weeks and featured more than 20 witnesses.

Each of the 34 felony charges carries up to a $5,000 fine and four-year prison sentence.  But whether Trump will go to prison is another question — one that's up to the judge at sentencing.  The judge set a July 11 date for sentencing following the jury's verdict on Thursday.

The timing is in line with similar white-collar felony cases, where sentencing often takes place anywhere from three to eight weeks after conviction, according to Dan Horwitz, a defense lawyer who formerly prosecuted white-collar cases for the Manhattan District Attorney's office.  The sentencing will happen four days before the start of the Republican National Convention.

The minimum sentence for falsifying business records in the first degree is zero, so Trump could receive probation or conditional discharge, a sentence of no jail or up to four years for each offense.  Trump would likely be ordered to serve the prison time concurrently for each count, so up to four years, total.

"The judge could sentence him to anything between zero and the max," Horwitz said. "So he could sentence him to a period of months in jail, he could sentence him to a period of weeks in jail, he could sentence him to a sentence where he is required, for example, to go to jail every weekend for a period of time and then serve the rest of the sentence on probation."

In an analysis of comparable cases brought by the Manhattan district attorney's office, Norm Eisen, who has written a book about Trump's 2020 election-related federal indictment and served as special counsel in the first impeachment of the former president, found that about 10% resulted in imprisonment.  But the circumstances surrounding the case make any across-the-board comparison difficult.

Trump could also be sentenced to home detention, where he would wear an ankle bracelet and be monitored rather than going to jail.  Horwitz suggested that a home detention sentence, which walks a middle ground between no punishment and a stint in state prison, might be the most likely outcome.  It would also satisfy Trump's unusual security and political situation.

A home detention sentence would also make it possible for Trump to continue campaigning — albeit virtually — with the ability to hold news conferences and remain active on social media....

There are a number of factors that the court can take into consideration for sentencing, including the nature and extent of the conduct, who was hurt, whether there are victims, and acceptance of responsibility, Horwitz said.  Trump has repeatedly denied any guilt in the case....

A defendant's conduct during the trial may also play a role, so Trump's repeated violation of Merchan's gag order may be a significant factor in his sentencing. During the trial, Trump was accused over a dozen times of violating a gag order preventing him from making public comments about likely witnesses, jurors, attorneys and court staff involved in the case.

Whatever Trump's formal sentence, he is certain to endure any number of formal and informal collateral consequences as a result of his convictions.  This Politico article flags an interesting one in its headline: "There’s a real possibility Trump can’t vote in November."

Though I suspect lots of folks may be eager to discuss lots of issues beyond the specifics of Trump's upcoming NY sentencing, I would be eager to hear as much discussion of sentencing law and practice as possible in the comments.  I say that in part because there are so many interesting and intricate sentencing issues that arise in this historic and controversial case.  For example, should state prosecutors assert that, and should Merchan consider, Trump's other alleged criminal behaviors as detailed in three other pending criminal indictments are aggravating factors calling for a more severe sentence?    

May 30, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (48)

By 6-3 vote, SCOTUS rejects Ninth Circuit reversal of Arizona death sentence in Thornell v. Jones

In its one criminal decision among three new opinions handed down by the Supreme Court this morning, the Justices by a 6-3 vote reversed a Ninth Circuit ruling in the capital case of in Thornell v. Jones, No. 22-982 (S. Ct. May 30, 2024) (available here).  Justice Alito authored the opinion for the Court, which starts and ends this way:

In this case, we review a decision of the Ninth Circuit ordering the resentencing of a defendant who, in order to steal a gun collection, committed three gruesome killings, including the cold-blooded murder of a 7-year-old girl.  The Ninth Circuit held that the defendant’s Sixth Amendment right to the effective assistance of counsel was violated during the sentencing phase of his capital trial.  In reaching this conclusion, the Ninth Circuit substantially departed from the well-established standard articulated by this Court in Strickland v. Washington, 466 U. S. 668 (1984).  Among other things, the Ninth Circuit all but ignored the strong aggravating circumstances in this case. As a result, we must reverse the judgment below....

When a capital defendant claims that he was prejudiced at sentencing because counsel failed to present available mitigating evidence, a court must decide whether it is reasonably likely that the additional evidence would have avoided a death sentence.  This analysis requires an evaluation of the strength of all the evidence and a comparison of the weight of aggravating and mitigating factors.  The Ninth Circuit did not heed that instruction; rather, it downplayed the serious aggravating factors present here and overstated the strength of mitigating evidence that differed very little from the evidence presented at sentencing. Had the Ninth Circuit engaged in the analysis required by Strickland, it would have had no choice but to affirm the decision of the District Court denying habeas relief.  We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Interestingly, Justuce Sotomayor's dissenting opinion (which was joined by Justice Kagan), agrees with the majority that the Ninth Circuit erred in its ineffective assistance prejudice inquiry, but she dissent because she "would vacate the judgment below and remand for the Ninth Circuit to consider the full record in the first instance."

In contrast, Justice Jackson dissents on the merits, and here opinion starts this way:

In its search for legal error in this capital habeas case, the Court makes many mistakes of its own, including misreading the Ninth Circuit’s opinion. I write separately to emphasize a particular misstep: the Court’s conclusion that “the Ninth Circuit all but ignored the strong aggravating circumstances in this case.” Ante, at 1. In my view, the Ninth Circuit’s analysis satisfied its obligations under Strickland v. Washington, 466 U.S. 668 (1984).

May 30, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wednesday, May 29, 2024

Local prosecutor drops all criminal charges against No. 1 golfer Scottie Scheffler

I noted in my post here two weeks ago after World No. 1 golfer Scottie Scheffler was arrested during a traffic misunderstanding that I was puzzled he was charged with four criminal offenses, including the serious felony charge of second-degree assault.  Today, a local prosecutor dropped all these charges, stating in court the evidence from the enounter did "not satisfy the elements of any criminal offenses."  Here are more details from this ESPN piece:

Criminal charges have been dropped against world No. 1 golfer Scottie Scheffler after the Jefferson County Attorney's Office in Louisville, Kentucky, said it would not pursue the case that stemmed from a traffic incident outside the PGA Championship earlier this month.

Jefferson County Attorney Mike O'Connell asked for the charges to be dismissed with prejudice -- meaning they can't be filed again in the future -- during a court hearing Wednesday.

"Based upon the totality of the evidence, my office cannot move forward in the prosecution of the charges filed against Mr. Scheffler," O'Connell said. "Mr. Scheffler's characterization that this was a 'big misunderstanding' is corroborated by the evidence. The evidence we reviewed supports the conclusion that Detective [Bryan] Gillis was concerned for public safety at the scene when he initiated contact with Mr. Scheffler. However, Mr. Scheffler's actions and the evidence surrounding their exchange during this misunderstanding do not satisfy the elements of any criminal offenses."...

Scheffler's attorney, Steve Romines, had previously said his client would plead not guilty and wasn't interested in a plea deal. "I am prepared to litigate as needed and the case will be dismissed, or we will go to trial because Scottie did absolutely nothing wrong," Romines said.

Interestingly, today also brought this new story based on a new video in which "Scottie Scheffler admitted to cops 'I should have stopped' before accusing 'over-aggressive' Detective Bryan Gillis of 'hitting me with his flashlight.'" 

May 29, 2024 in Celebrity sentencings, Who Sentences | Permalink | Comments (10)

Thrilled for start to Season 2 of "Drugs on the Docket" podcast

350x350bbAround this time last year in this post, I flagged that the Drug Enforcement and Policy Center at The Ohio State University had just released Season One of a new podcast, "Drugs on the Docket."  All six full episodes of this first season, each running under an hour, were released at once (and are all still  available via Apple Podcasts and YouTube).  In fall of last year, the Drugs on the Docket team released, every couple weeks, some bonus "mini-episodes" which followed up on various Season 1 topics (which included the evolution of the crack cocaine sentencing, SCOTUS cases like Ruan v. US and Whren v. US, federal mandatory minimums, and much more).

Since the fall, the DEPC team has been hard at work putting together Season 2 of Drugs on the Docket, which will premire late this week.  Here is how the podcast is described via this podcast webpage along with a preview of the first episode of the new season:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University.  Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.... The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

The Drugs on the Docket podcast is back with Season 2!  This time around, we'll release an episode every two weeks. Episodes unpack ATF sting operations, the history of US drug policies and constitutional law, the revival of the U.S. Sentencing Commission, compassionate release and the 2018 First Step Act, the role of law enforcement in harm reduction, the relationship between stigma and substance use, and more.

Season 2 Episode 1 – Stash house stings with Alison Siegler and Erica Zunkel (Part 1 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, kick off Season 2 with guests Alison Siegler and Erica Zunkel from the University of Chicago.  Part 1 of this two-part episode focuses on clients ensnared in undercover stash house sting operations carried out by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and how the Federal Criminal Justice Clinic at the University of Chicago Law School sought to prove that the ATF violated the 14th Amendment Equal Protection Clause by discriminating on the basis of race when selecting its targets.

Alison Siegler is Clinical Professor of Law and Founding Director of the Federal Criminal Justice Clinic at the University of Chicago Law School; Erica Zunkel is Clinical Professor of Law at the University of Chicago Law School and teaches in the school’s Criminal and Juvenile Justice Clinic.

Release date: Friday, May 31, 2024  

As I have said before, in my (admittedly biased) view, the curated discussions in this "Drugs on the Docket" podcast are all quite interesting and informative.  As I have also said before, because I am eager to see this podcast continue to develop and audience (and also because my colleagues at DEPC have worked extremely hard to put this content together), I am sure to keep using this space to encourage everyone to check out new Season 2 (and old Season 1) in the coming weeks.  

May 29, 2024 in Drug Offense Sentencing, Recommended reading, Who Sentences | Permalink | Comments (2)

Tuesday, May 28, 2024

Amnesty International reporting that in 2023 executions globally "soar to highest number in almost a decade"

The anti-death penalty group Amnesty International reports here on the "DEATH PENALTY 2023: Death sentences and Executions." Here is part of the start of the report online:

Executions soared to their highest number in almost a decade in 2023 with a sharp rise across the Middle East, Amnesty International said today as it released its annual report on the global use of the death penalty.

A total of 1,153 executions took place in 2023, which does not include the thousands believed to have been carried out in China, marking an increase of more than 30% from 2022. It was the highest figure recorded by Amnesty International since 2015, when 1,634 people were known to have been executed. Despite this increase, the number of countries that carried out executions reached the lowest figure on record with Amnesty International.

“The huge spike in recorded executions was primarily down to Iran. The Iranian authorities showed complete disregard for human life and ramped up executions for drug-related offences, further highlighting the discriminatory impact of the death penalty on Iran’s most marginalized and impoverished communities,” said Agnès Callamard, Amnesty International’s Secretary General.

“Despite the setbacks that we have seen this year, particularly in the Middle East, countries that are still carrying out executions are increasingly isolated. Our campaigning against this abhorrent punishment works. We will continue until we have put an end to the death penalty.”

The five countries with the highest number of executions in 2023 were China, Iran, Saudi Arabia, Somalia and the USA. Iran alone accounted for 74% of all recorded executions while Saudi Arabia accounted for 15%. Somalia and the USA carried out an increased number of executions in 2023.

There was a 20% increase in the number of death sentences handed out globally in 2023, taking the total to 2,428.

May 28, 2024 in Death Penalty Reforms, Sentencing around the world, Who Sentences | Permalink | Comments (9)

Justice Gorsuch dissents from cert denial in case contesting SCOTUS precedent allowing six-member criminal juries

Today's order list from the Supreme Court has one (non-criminal) grant of certiorari as well as one opinion dissenting from a (criminal) denial of certiorari.  This opinion, in Cunningham v. Florida, No. 23–5171, was authored by Justice Gorsuch, and jury-trial fans will want to read all three pages.  Here is how it starts and ends:

“For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community.” Khorrami v. Arizona, 598 U.S. ___, ___ (2022) (GORSUCH, J., dissenting from denial of certiorari) (slip op., at 9).  Acutely concerned with individuals and their liberty, the framers of our Constitution sought to preserve this right for future generations.  See id., at ___–___ (slip op., at 2–3); Art. III, §2, cl. 3; Amdt. 6. Yet today, a small number of States refuse to honor its promise. Consider this case: A Florida court sent Natoya Cunningham to prison for eight years on the say of just six people.

Florida does what the Constitution forbids because of us.  In Williams v. Florida, this Court in 1970 issued a revolutionary decision approving for the first time the use of 6member panels in criminal cases. 399 U.S. 78, 103. In doing so, the Court turned its back on the original meaning of the Constitution, centuries of historical practice, and a “battery of this Court’s precedents.” Khorrami, 598 U. S., at ___ (slip op., at 6)....

Respectfully, we should have granted review in Ms. Cunningham’s case to reconsider Williams. In the years since that decision, our cases have insisted, repeatedly, that the right to trial by jury should mean no less today, and afford no fewer protections for individual liberty, than it did at the Nation’s founding.  See, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000); Ramos v. Louisiana, 590 U. S. 83 (2020).  Repeatedly, too, our cases have warned of the dangers posed by the gradual “‘erosion’” of the jury trial right.  Apprendi, 530 U.S., at 483 (quoting Jones v. United States, 526 U.S. 227, 248 (1999)). Yet when called upon today to address our own role in eroding that right, we decline to do so. Worse still, in the last two years we have now twice turned away thoughtful petitions asking us to correct ourmistake in Williams.  See Khorrami, 598 U.S., at ___ (slip op., at 10).

If there are not yet four votes on this Court to take up the question whether Williams should be overruled, I can only hope someday there will be. In the meantime, nothing prevents the people of Florida and other affected States from revising their jury practices to ensure no government in this country may send a person to prison without the unanimous assent of 12 of his peers.  If we will not presently shoulder the burden of correcting our own mistake, they have the power to do so. For, no less than this Court, the American people serve as guardians of our enduring Constitution.

May 28, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14)

Sunday, May 26, 2024

Any suggestions for whom else Donald Trump might pledge to free from federal prison "on day one" back in the Oval Office?

A few months ago, Donald Trump pledged on Truth Social that among his "first acts as your next President will be to ... Free the January 6 Hostages being wrongfully imprisoned!"   And, in a speech last night, as covered in this post, Trump sought to garner support from a libertarian crowd by announcing "If you vote for me, on day one I will commute the sentence of Ross Ulbricht, to a sentence of time served."

These clemency pledges got me to thinking that notable political contingents, or maybe even just a few key folks in a key swing state, might be able to cajole Trump into pledging to use his clemency pen a particular way.  Former NFL star Antonio Brown seemingly figured this out already, as this Fox News piece highlights he has been praising and pitching Trump on clemency fronts.  For example, given that supporters of Marilyn Mosby have so far had no success getting Joe Biden to grant her clemency, perhaps they ought to make a run at getting Trump to pledge clemency for her.   

The Mosby (tongue-in-cheek) idea aside, I do not think it would be foolish at all for Trump to seek to garner attention and favor from certain voters through clemency pledges.  Many criminal justice reform advocates have been quite disappointed that Joe Biden has not used his clemency pen more robustly and broadly.  Polling data suggests that young people and people of color are especially interested in criminal justice reform, and astute clemency pledges could make these important voting blocks take notice.

So, dear readers, any (specific or general) suggestions for whom else Donald Trump might pledge to free from federal prison "on day one" back in the Oval Office?

May 26, 2024 in Campaign 2024 and sentencing issues, Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

Homicides still way down as weather (and crime politics) heats up in 2024

A few days ago, I received an alert from my local paper about this article reporting that "data from the Columbus Division of Police showed that the city is experiencing some of the lowest levels of violence in a decade."  According to this press piece, the biggest city in Ohio has recorded only 18 murders in this calendar year, compared to 41 at this time last year.  The article also flagged that a number of other cities have also seen significant homicide declines.  

Conveniently and encouragingly, Jeff Asher posted yesterday this new substack entry detailing that Columbus, Ohio is not alone in experiencing a significant homicide decline to start 2024.  Folks should read his full posting for lots more context and details, but here are some highlights:

[M]urder is down around 20 percent in 2024 in more than 180 cities with available data this year compared to a comparable timeframe last year (as of the moment of this piece's publication).  Murder is down 20.5 percent in 183 cities with available data through at least January, down 20.2 percent in 174 cities with data through at least February, and down 20.8 percent in 59 cities with data through at least March 20....

We could still see, and perhaps should expect to see the sample's murder decline to regress towards a more normal rate of decline as the year goes on.  It's only April and there is a ton of time left in 2024 for these figures to regress, but murder is down roughly twice as much with a sample that’s twice as large as what we had last year at this time.... Murder is down more than 30 percent at the moment in Washington DC, New Orleans, Las Vegas, Cleveland, Milwaukee, Detroit, Columbus, Nashville, Philadelphia, and I could keep going....

It's not just murder data in cities pointing to a large decline.  Shooting data from the Gun Violence Archive shows a decline of around 12 percent in terms of shooting victims through March compared to 2023.  This matches the trend of declining shootings in 20 of the 25 cities with available shooting data through at least February this year. 

As readers may recall from prior posts, 2023 brought a considerable (perhaps historic) decline in homicides in the US compared to 2022 (which saw a small decline in homicides after very significant increases in homicides throughout the US in 2020 and 2021).  And my check today at the latest AH Datalytics' collection of homicide data for 2024 from 250+ US cities shows now an 18.8% cumulative decline(!) in murders across the nation's cities through more than the first third of 2024.  And a number of big cities are showing even bigger 2024 declines from police reports: Washington DC and Milwaukee homicides are down around 25%; Cleveland, Dallas and Phoenix homicides are down nearly 30%; Baltimore, Columbus, New Orleans and Philadelphia homicides are down more than 40%.

I am not sure criminologists have a clear story for why we are not seeing historicthe  homicide declines, but the many hundreds of fewer murders to start 2024 is certainly something to celebrate and to hope continue.  (I noted in a prior post that the 2023 and 2024 declines in homicide come at a time of relatively low use of the death penalty and relatively lower rates of incarceration by US standards.)  Of course, these remarkable homicide numbers could change in the months ahead, and the hotter weather of summer months historically bring an uptick in homicides.

Also sure to heat up this summer are crime politics.  I flagged in this post yesterday a recent Politico article quoting aides of President Biden suggesting the Pesident was planning to embrace tougher approaches on crime and immigration.  And today bring this lengthy New York Times piece headlined "Even as Violent Crime Drops, Lawlessness Rises as an Election Issue."  Here is a small excerpt:

Homicide rates are tumbling from pandemic highs in most cities, funding for law enforcement is rising, and tensions between the police and communities of color, while still significant, are no longer at a boiling point. But property crime, carjackings and smash-and-grab burglaries are up, adding to a sense of lawlessness, amplified on social media and local online message boards.

Mr. Trump is re-upping his blunt, visceral appeal to voter anxieties. He declared recently that “crime is rampant and out of control like never before,” promised to shoot shoplifters, embraced the “back the blue” slogan against liberal changes to police departments — and even falsely accused the F.B.I. of fabricating positive crime data to bolster Mr. Biden.

Mr. Biden, in response, is taking a more low-key approach.  He has spotlighted improving violent crime rates, promoted vast increases in funding to law enforcement under his watch and pointed to an aggressive push on gun control, as well as a revived effort to hold local departments accountable for discriminatory and dangerous policing practices in Black and brown neighborhoods. 

May 26, 2024 in Campaign 2024 and sentencing issues, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, National and State Crime Data, Who Sentences | Permalink | Comments (31)

Saturday, May 25, 2024

Speaking to Libertarian convention, Donald Trump promises to commute prison sentence of Silk Road creator Ross Ulbricht

As reported in this Fox News piece, "Former President Trump on Saturday vowed to commute the prison sentence of Ross Ulbricht, the founder of the online drug-selling site Silk Road."  Here is more:

The GOP frontrunner made the pledge while addressing the Libertarian National Convention in Washington, D.C., in a bid to win over skeptical party activists, many of whom held up signs that read: "FREE ROSS."

"If you vote for me, on day one I will commute the sentence of Ross Ulbricht, to a sentence of time served," Trump said, winning the largest cheers of the night. "He’s already served 11 years. We’re going to get him home."

During his presidency, Trump considered intervening to release Ulbricht, but ultimately decided against the pardon.

Ulbricht, now 40, was sentenced in 2015 to life in prison by a judge who cited six deaths that resulted from drugs bought on his website and five people he tried to have killed.

Ulbricht operated the website between 2011 and 2013, when he was arrested.

Prior posts from 2015 when Ulbright was sentenced:

May 25, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Elections, past and future, have consequences for criminal justice reform policies and plans

Politico has this notable new article on criminal justice reform "vibes" coming from the White House headlined "The White House to the left: We told you so on crime."   Folks who follow criminal justice politics will not be surprised by much in the article, but it serves as an important reminder about political takes on the national mood as we head toward the heart of the election season.  Here is how:

The defeat of a liberal Portland prosecutor at the hands of a tough-on-crime challenger has hardened a view among top White House officials that Democrats need to further distance themselves from their left flank on law-and-order issues.

In the wake of the voter backlash over public safety in Oregon, Joe Biden’s aides this week argued the results served as validation of their long-running concerns that crime and an immigration crisis at the southern border risk overwhelming the president’s case for reelection — especially if the broader party is seen as soft on both fronts.

“Particularly right now, Americans don’t want to feel like things are out of control,” said one Biden official, who was granted anonymity to offer candid views about tensions within the party. “Well-meaning ideas have gone too far, and we need a sensible approach.”

The White House is banking on the idea that voters will reward them for public efforts to crack down on immigration and boost spending on law enforcement — and, perhaps as importantly, that the liberal forces that so effectively moved the party away from those planks in 2020 won’t punish the president come November.  Inside the West Wing, senior counselor Steve Ricchetti has been among the leading voices making this case, while also advocating for more toughness on the border, according to the Biden official and one other, both granted anonymity to discuss private conversations.

But the president has not needed much convincing, the officials said, having personally favored an approach that emphasizes more traditional support for law enforcement alongside criminal justice reforms. Biden spent much of his half century in politics as an ardent advocate for law enforcement and anti-crime measures, a reputation that complicated his path to the 2020 Democratic nomination amid scrutiny over his role in passing a controversial 1994 crime bill.

May 25, 2024 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

Friday, May 24, 2024

"Regressive White-Collar Crime"

The title of this post is the title of this new article authored by Stephanie Holmes Didwania available via SSRN. Here is its abstract:

Fraud is one of the most prosecuted crimes in the United States, yet scholarly and journalistic discourse about fraud and other financial crimes tends to focus on the absence of so-called “white-collar” prosecutions against wealthy executives.  This Article complicates that familiar narrative. It contains the first nationwide account of how the United States actually prosecutes financial crime.  It shows — contrary to dominant academic and public discourse — that the government prosecutes an enormous number of people for financial crimes and that these prosecutions disproportionately involve the least advantaged U.S. residents accused of low-level offenses.  This empirical account directly contradicts the aspiration advanced by the FBI and Department of Justice that federal prosecution ought to be reserved for only the most egregious and sophisticated financial crimes.  This Articles argues, in other words, that the term “white-collar crime” is a misnomer.

To build this empirical foundation, the Article uses comprehensive data of the roughly two million federal criminal cases prosecuted over the last three decades matched to county-level population data from the U.S. Census.  It demonstrates the history, geography, and inequality that characterize federal financial crime cases, which include myriad crimes such as identity theft, mail and wire fraud, public benefits fraud, and tax fraud, to name just a few.  It shows that financial crime defendants are disproportionately low-income and Black, and that this overrepresentation is not only a nationwide pattern, but also a pattern in nearly every federal district in the United States.  What’s more, the financial crimes prosecuted against these overrepresented defendants are on average the least serious.  This Article ends by exploring how formal law and policy, structural incentives, and individual biases could easily create a prosecutorial regime for financial crime that reinforces inequality based on race, gender, and wealth.

May 24, 2024 in Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, May 23, 2024

Former Baltimore prosecutor Marilyn Mosby gets a year of home detention in federal sentencing for perjury and fraud

As reported in this AP piece, a "former Baltimore city prosecutor who achieved a national profile for charging police officers in a Black man’s death was spared any prison time in her sentence Thursday for perjury and mortgage fraud. Marilyn Mosby’s sentence includes 12 months of home confinement, 100 hours of community service and three years of supervised release." Here is more: 

Mosby was convicted of lying about her finances to make early withdrawals from retirement funds during the COVID-19 pandemic, and fraudulently claiming that her own $5,000 was a gift from her then-husband as she closed on a Florida condominium.

Mosby, 44, has maintained her innocence. She declined to address U.S. District Judge Lydia Kay Griggsby before learning her sentence. Her lawyers said they would appeal while they seek a presidential pardon,

It’s a sad day for Mosby and her family, the judge told Mosby. “It’s also a sad day for the city of Baltimore,” said Griggsby, adding that Mosby displayed a “pattern of dishonesty” while serving in a public office. She also noted that her crimes didn’t involve any taxpayer money and said the prospect of separating Mosby from her two young daughters “weighed very heavily” on her decision.

Griggsby questioned Assistant U.S. Attorney Sean Delaney when he argued for a 20-month sentence. “Are there victims and who are they?” she asked. “It’s a good question, your honor,” Delaney responded. “I get it. This isn’t an embezzlement case.”

Delaney said it harms the public when a public official lies under oath: “All citizens are victims when their public officials lie,” he said. Delaney also denied claims by Mosby’s supporters that she is a victim of selective prosecution and said she has repeatedly lied about the case and prosecutors’ handling of it. “These lies demonstrate that Marilyn Mosby is unremorseful, that she has no regard for the truth,” Delaney said.

Mosby, 44, gained a national profile when she charged officers in the 2015 death of Freddie Gray, which led to riots and protests in the city. After three officers were acquitted, Mosby’s office dropped charges against the other three officers. She ultimately served two terms before she was indicted and lost reelection. The judge told one of Mosby’s attorneys, James Wyda, that Mosby’s lack of contrition “weighs heavily” on her sentencing. “That’s of deep concern to the court,” she said, calling it “a barrier” to their request for no prison time.

Wyda argued that Mosby is “in a category of one,” a unique case. “This is not a public corruption case,” he said. “There was no financial loss to any victim.” Wyda, a federal public defender, said Mosby’s legal team will be appealing her conviction and sentence while also seeking a presidential pardon. “Jail is not a just sentence for Ms. Mosby. Not for her family. Not for the community,” he said.

Prior related post:

May 23, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (18)

Interesting 6-3 split in ruling for feds in reach of ACCA covering state drug convictions

Regular readers know the Armed Career Criminal Act (ACCA) is a messy statute that has divided the Supreme Court for decades regarding how to categorize various prior convictions as possible triggers for ACCA's 15-year mandatory minimums.  Another divided Supreme Court opinion was handed down in this arena today  in Brown v. US, No. 22–6389 (S. Ct. May 23, 2024) (available here). The opinion for the Court was authored by Justice Alito, and it starts this way:

These cases concern the application of the Armed Career Criminal Act (ACCA) to state drug convictions that occurred before recent technical amendments to the federal drug schedules.  ACCA imposes a 15-year mandatory minimum sentence on defendants who are convicted for the illegal possession of a firearm and have a criminal history that is thought to demonstrate a propensity for violence.  These defendants are subject to ACCA’s enhanced penalty if, among other things, they have “three previous convictions” for “a serious drug offense.” 18 U.S.C. §924(e)(1).  For a state crime to qualify as a “serious drug offense,” it must carry a maximum sentence of at least 10 years’ imprisonment, and it must “involv[e] . . . a controlled substance . . . as defined in section 102 of the Controlled Substances Act” (CSA). §§924(e)(1), (2)(A)(ii). The CSA, in turn, includes five schedules of controlled substances and provides that these schedules must be updated each year by the Attorney General. 84 Stat. 1245, 1247, 21 U. S. C. §§811, 812.

The two cases now before us present the question whether a state crime constitutes a “serious drug offense” if it involved a drug that was on the federal schedules when the defendant possessed or trafficked in it but was later removed.  We hold that such an offense qualifies. 

Intriguingly, five other Justices joined Justice Alito's opinion for the Court, but not the "usual suspects" when there are 6-3 divides on this Court. In this iteration, Justice Sotomayor joins the marjoirty in this ruling for the government, whereas Justice Jackson wrote a dissenting opinion, in which Justice Kagan and Gorsuch joined (though the latter joined only as to Parts I, II, and III of the dissent). Here is how the dissent gets started:

The Court maintains that, “[s]tanding alone,” the text of 18 U. S. C. §924(e)(2)(A)(ii) “does not definitively answer” the question presented in these cases. Ante, at 7. Instead, says the majority, we must look beyond the text to precedent, statutory context, and purpose — which apparently converge to persuade the majority that §924(e)(2)(A)(ii) requires sentencing courts to apply the drug schedules in effect at the time of a defendant’s prior state drug conviction when determining the applicability of the 15-year mandatory minimum in the Armed Career Criminal Act (ACCA). But the relevant text does definitively answer the question presented here. And it establishes that courts should apply the drug schedules in effect at the time of the federal firearms offense that triggers ACCA’s potential application. Nothing else — not precedent, context, or purpose — requires a different result. Therefore, I respectfully dissent.

I am hopeful, but not especially optimistic, that a faculty meeting and other commitments will not prevent me from fiding time in short order to review these opinions closely.

May 23, 2024 in Drug Offense Sentencing, Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Wednesday, May 22, 2024

Any predictions for this week's scheduled sentencing of former Baltimore prosecutor Marilyn Mosby?

What might be called the rise and fall of former Baltimore City State's Attorney Marilyn Mosby has way too many chapters and elements to cover adequately in this space.  But, tomorrow morning, her story formally becomes a sentencing story as U.S. District Judge Lydia Griggsby holds a hearing to sentence Mosby on multiple charges.  (Quirky side note: I went to high school with Judge Griggby, but I have not spoken with her in decades.)  This local news piece provides just a small window into some of the tales of Mosby:

Former Baltimore City State's Attorney Marilyn Mosby is just days away from her sentencing, months after juries in two separate trials convicted her on counts of perjury and mortgage fraud. Mosby has claimed these charges were politically and racially motivated. She even mounted a national campaign in the last few weeks for a presidential pardon.

In November and February, juries found Mosby guilty for lying in regard to a vacation home mortgage and for withdrawing from her retirement account early under the pretense of covid-related hardship.

In a court filing Monday, Mosby's attorneys continued to call for an alternative to prison time, like probation, citing the negative impact on her kids as a reason.

But, Mosby has also been stumping hard for a pardon from Pres. Joe Biden -- appearing on MSNBC and the nationally syndicated radio show The Breakfast Club. "I have been accused of doing something I have not done. I'm innocent. I'm facing 40 years for withdrawing funds from my retirement savings," Mosby said on The Breakfast Club. "The United States government, a global superpower, is coming for me."

Prosecutors have called for 20 months of prison time. In court filings, prosecutors have criticized Mosby's press tour. "She has displayed no remorse; she accepts no responsibility; she has no regrets for her actions; and she has consistently worked to undermine public faith in the justice system for her own benefit," prosecutors said in the filing.

In response to prosecutors, Mosby's attorneys said in court filings that, "Ms. Mosby has every right to maintain her innocence indefinitely."

More than a dozen civil rights organizations have pledged support for Mosby's pardon, as well as a number of high-profile names. One of the most recent names to support Mosby is Bernice King, the daughter of Martin Luther King Jr....

Prosecutors have also filed to seize her condo in Longboat Key, Florida. Mosby's attorneys said in court filings the government hasn't proved it's entitled to do that.

I have seen a lot of press pieces providing very different accounts of Mosby and her activities, and it will be interesting to see how Judge Griggsby sorts through persistent disagreements about the facts at sentencing. Long-time readers know I often see the mid-point of the parties' sentencing recommendation to serve as a reasonable over/under for any sentencing prediction.  So perhaps 10 months is a reasonable guess for how Judge Griggsby will weigh the 3553(a) factors here, though I have not followed the prior proceedings in this matter closely enough to make a truly informed prediction.

I assume Mosby is planning to appeal her convictions.  If Judge Griggsby imposes a relatively prison term, I am sure Mosby would seek bail pending appeal (which likely will be granted).  Consequently, even if a prison term were imposed, it could be a while until Mosby woud be required to report to prison (and, of course, calls for clemency would surely grow in that period). 

May 22, 2024 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (10)

US House votes, with overwhleming bipartisan support, for "Federal Prison Oversight Act"

As reported here at Reason, the US House of Representatives prove last night that bipartisanship is not entirely dead: "The U.S. House of Representatives passed a bill Tuesday night by a nearly unanimous vote to create independent oversight of the scandal-ridden federal prison system."  Here is more (with links from the original):

By a vote of 392-2, the House passed the Federal Prison Oversight Act, a bill introduced by Reps. Lucy McBath (D–Ga.) and Kelly Armstrong (R–N.D.) that would require the Department of Justice's inspector general to conduct detailed inspections of each of the 122 facilities in the Bureau of Prisons (BOP) system, and, more significantly, create an independent Justice Department ombudsman to investigate complaints from inmates and staff.

"Incarcerated Americans should not fear death when they enter our Federal prison system, and correctional officers should not fear for their safety in their workplace," McBath said in a press release.  "Our Federal prisons must serve as institutions that rehabilitate and prepare Americans for reentry into society, and that cannot happen without putting meaningful accountability measures in place."

A companion bill has been introduced in the Senate by Sens. Jon Ossoff (D–Ga.), Mike Braun (R–Ind.), and Senate Majority Whip Dick Durbin (D–Ill.).

The Bureau of Prisons has been dogged by chronic understaffing, crumbling facilities, and scandal.  There have been high-profile deaths like Whitey Bulger and Jeffrey Epstein.  Reason has documented numerous cases of atrocious medical neglect, including one that a federal judge called "inconsistent with the moral values of a civilized society." And the BOP announced in April that it was shutting down a women's prison where eight employees so far, including a former warden, have since been convicted or pleaded guilty to sexually assaulting incarcerated women under their control. 

The legislation was first introduced in 2022, shortly after a Senate committee released the results of an investigation into widespread corruption and abuse at a federal prison complex in Atlanta.  Congressional investigators found that senior leadership at both the complex and the Bureau of Prisons (BOP) had been aware of the problems for years but failed to act.

"My bipartisan Senate investigations of corruption, abuse, and misconduct in the Federal prison system have revealed an urgent need to overhaul Federal prison oversight," Ossoff said in a press release. "I now urge Senate leadership to bring our bipartisan bill for a vote and send it to the President's desk."

The cover-up culture exposed by the Senate is widespread and deeply rooted in the BOP, and it operates against both inmates and whistleblower employees.  In 2021, the BOP closed down a minimum-security women's camp in Florida.  A Reason investigation detailed how a cadre of guards at the camp abused incarcerated women with impunity for years, and how those guards were allowed to retire and escape prosecution, despite giving sworn statements to investigators admitting to assaulting inmates.

May 22, 2024 in Prisons and prisoners, Who Sentences | Permalink | Comments (4)

Not-quite-last call for papers: Federal Sentencing Reporter issue on "Booker at 20"

M_fsr.2024.36.4.coverIn this prior post, I set out the full call for papers for a forthcoming issue of the Federal Sentencing Reporter in which we plans to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  As detailed below, the "soft" deadline for receiving drafts for this FSR issue is next week (though we may have a bit of flexibility depending on the number of submissions).  So, though I expect the true last call for submissions will be next week, anyone planning to submit a draft that migth need a little extra time should eb sure to let me know of their plans.  And, for full effect, here are some of the specifics of the call:

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

May 22, 2024 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Who Sentences | Permalink | Comments (0)

"Padilla's Broken Promise: Pennsylvania Case Study"

The title of this post is the title of this new article authored by Mikaela Wolf-Sorokin, Liz Bradley and Whitney Viets (which caught my eye, in part, because I am in the Keystone state today for this event). Here is its abstract:

In 2010, the Supreme Court held in Padilla v. Kentucky that criminal defense attorneys have a constitutional obligation to advise noncitizen clients of the immigration consequences of a guilty plea in criminal court proceedings.  Though it has been over a decade since the decision, little research has been done regarding Padilla’s implementation by defense counsel on a statewide level.  This Article provides findings from a case study on Padilla advising in Pennsylvania. Pennsylvania is unique because its state courts have interpreted Padilla narrowly and permit immigration advisals that would be deemed constitutionally deficient in other jurisdictions.  Pennsylvania also does not have a state-funded public defense system, which means standards for indigent representation vary by county.

Interviews with public defenders and prosecutors in Pennsylvania reveal significant variation in the scope of advice provided to noncitizens in criminal court proceedings and the willingness of district attorney offices to consider immigration status during plea negotiations.  Each Pennsylvania county has an individual method of identifying noncitizen clients, analyzing immigration consequences, warning clients of these adverse consequences, and negotiating with district attorneys.  The scope of advice provided to noncitizens and counsel’s understanding of their Padilla obligations vary considerably in both content and scope.  Counties suffer from Pennsylvania’s systemic failure to provide adequate funding to public defense offices to ensure that they can effectively comply with Padilla — a problem that is especially salient in a state with limited postconviction remedies for those who receive deficient advice. Based on these findings, this Article offers various policy recommendations that would improve the criminal defense representation of noncitizens in Pennsylvania.  While these findings and recommendations are specific to Pennsylvania, they are relevant to nationwide research on Padilla’s impact and what can be done to promote immigration-conscious criminal defense advocacy.

May 22, 2024 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, May 21, 2024

"Misdemeanor Declination: A Theory of Internal Separation of Powers"

The title of this post is the title of this new paper authored by Alexandra Natapoff and available via SSRN.  Here is its abstract:

Millions of times every year, American prosecutors make the all-important decision whether to decline or file formal criminal charges after police have made an arrest.  This declination decision determines whether an arrest will become a full-fledged criminal case and thus whether an individual arrestee will become a defendant.  It establishes the classic dividing line between investigation and adjudication, triggering numerous constitutional consequences. Through declination, prosecutors also check and regulate police decision-making within the executive branch.  In an era of racialized mass incarceration, prosecutorial declination can function as a mode of equitable gatekeeping, regulating the impact of sloppy or biased policing practices on communities, courts, and the rest of the criminal pipeline.  It is therefore a unique structural moment of institutional and constitutional significance.

Declination is especially influential because police and prosecutors are the two main decision-makers within the carceral executive branch.  This Article conceptualizes the relationship between them as an overlooked example of internal separation of powers, with the declination decision as its most impactful regulatory moment.  Administrative law teaches that intrabranch checks are vital, especially when interbranch separation of powers has proven ineffective as it famously has with respect to the penal executive.  The prosecutorial declination decision, in turn, is an especially promising intrabranch checking tool.  It offers decisional friction, oversight, and accountability within the executive at precisely the moment when good law enforcement decision-making makes a big difference for millions of people.

In our massive misdemeanor system, this regulatory promise usually fails.  Misdemeanor prosecutors routinely rubber-stamp police arrest decisions and convert arrests automatically into formal charges: namely, they abdicate their screening and checking functions by deferring to police.  Misdemeanor declination rates are typically very low — often less than five percent — which means that police effectively get to decide not only who will be arrested but who will be formally charged with a crime.  This is not how the criminal system is supposed to work.  In administrative law terms, such prosecutorial abdication is a violation of basic branch design and a worrisome species of intrabranch collusion. It is, however, neither universal nor foreordained.  Around the country, many newly elected prosecutors have embraced strong misdemeanor declination policies, not only as a way of checking police but increasing equity, efficiency, and accountability.  Such policies exemplify how misdemeanor declination is an underappreciated opportunity to regulate the penal executive from within and to mitigate the excesses and injustices of the low-level carceral state.

May 21, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Monday, May 20, 2024

Notable new accounting of parole practices in Virginia

The digital magazine Bolts has this new article about parole in Virginia under the headline, "Under Glenn Youngkin, Parole in Virginia Has Nearly Vanished."  The full piece has all sorts of detailed stories and some data about old and new parole practices in the Old Dominion state.  Here are short excerpts from a lengthy piece:

Under past Democratic administrations, Virginia already had one of the harshest parole systems in the nation, with single-digit annual approval rates.  But parole grants have declined even further since Republican Governor Glenn Youngkin began to overhaul the parole board in 2022, dipping to an approval rate of just 1.6 percent in 2023.  So far this year, Youngkin’s parole board has approved only eight of the 628 applications it considered, a grant rate of 1.3 percent, according to Mother Jones’ and Bolts’ analysis.  In March, ... the board approved only 2 out of the 117 cases it considered....

Parole board decisions could soon at least become less opaque in Virginia.  Last year, Youngkin signed a bipartisan transparency bill into law that the ACLU touted as “the biggest reform of Virginia’s parole system since 1994.”  Under the new law, which takes effect in July, the board will have to publish more regular detailed reports with individualized reasons on grants and denials, and parole review hearings will be required to include interviews with candidates themselves.  The bill also gives parole applicants and their attorneys access to all of the information being considered by the board.

May 20, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Sunday, May 19, 2024

"A Critical Assessment of the First Step Act’s Recidivism-Reduction Measures"

The title of this post is the title of this new article authored by Raquel Wilson that was recently published.  Here is its abstract:

The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.

The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually.  The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons (“BOP”) by allowing participants to earn additional time credits that reduce their sentence.  Yet Congress excluded from its incentive program many violent offenders as well as others convicted of non-violent offenses relating to immigration and drug trafficking.  This Article argues that this exclusion was a critical mistake for several reasons: (1) Programming such as cognitive behavioral therapy has been shown to be most effective for offenders who pose the highest risk of recidivism, including violent offenders; (2) Given limited resources in the BOP, incentivizing participation among only non-violent offenders will likely result in less programming for violent offenders; (3) The BOP already exhibits significant shortcomings in its ability to properly calculate release dates, and forcing the BOP to calculate time credits based on a complex list of excluded offenses will only create additional administrative burdens that may result in more inaccuracy in release dates; and (4) In creating a politically-driven list of excluded offenders, Congress missed an opportunity to focus on data-driven reforms to reduce crime and risks to public safety.

A better approach would be a simpler, more straightforward one that would be easier for the BOP to administer and that would incentivize participation of all people in prison who will be released into local communities.  Congress has expert bodies with which it can consult, including the social science arm of the Department of Justice and the United States Sentencing Commission.  Allowing expert bodies to make decisions and recommendations can insulate both Congress and the President from the political backlash that sometimes hampers meaningful criminal justice reform. Finally, federal judges can be trusted with release decisions.  Judges demonstrated strong adherence to Sentencing Commission guidance when ruling on compassionate release motions once Congress allowed people in prison to file for early release under that statutory provision.  Congress should consider creating a second-look provision that would allow federal judges to apply Commission guidance to early release petitions, taking into account successful completion of recidivism-reducing programs.

May 19, 2024 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Notable (and notably unclear) accounting of possible impact of retroactive application of new guideline amendments

The US Sentencing Commission has sent to Congress a handful of new guideline amendments that reduce the guideline range for some individuals (details here).  That means the USSC is statutorily required to decide whether these amendments should be applied retroactively to persons currently incarcerated.  Before a vote on retroactivity, the USSC staff typically prepares a retroactivity impact analysis to aid the USSC's deliberation over retroactivity, and this past Friday the USSC made public this 21-page document titled "Analysis of the Impact of Certain 2024 Guideline Amendments if Made Retroactive" (hereinafter "retroactivity memo").

The highest-profile amendment to be considered for retroactivity is on acquitted conduct, which redefines relevant conduct to exclude conduct for which the defendant was criminally charged and acquitted in federal court.  The retroactivity memo notes that the USSC staff estimated "that 1,971 persons currently incarcerated in the BOP were acquitted of one or more of the charges against them."  (Notably, that's not much more than 1% of the current federal prison population.)  But, as the retroactivity memo further explains, USSC research staff were "unable to determine whether and to what extent the courts may have relied upon any of the offense conduct related to the charge or charges for which the individual was acquitted in determining the guideline range; therefore, staff cannot estimate what portion of approximately 1,971 persons might benefit from retroactive application of the amendment."

I suspect only a limited percentage of persons who were acquitted of some charge could show that their guideline ranges were enhanced based on acquitted conduct.  But this reality, in my view, should make the Commission all that much more willing to have its new acquitted conduct guideline applied retroactively.  Though acquitted conduct guideline enhancements are relatively rare, those now serving prison time based on acquitted conduct ought to have a chance to argue for a reduced sentence.

Interesting, the retroactivity memo also details at length that all the other guideline amendments that might be made retroactive this year also have all sorts of data uncertainty regarding the reach of retroactivity.  Here is a cursory accounting drawn from the retroactivity memo: (a) one amendment restricting a 4-level enhancement applicable when a firearm's serial number of a firearm has been “altered or obliterated” could apply to as many as 1,452 current federal prisoners, but the amendment functions so that USSC "staff cannot determine in which of the 1,452 cases" might be impacted by the amendment"; (b) another amendment concerning the grouping rules for firearm offenses could impact "102 cases that met the criteria" of the new guideline, but the fact-specific nature of the grouping rules [meant] staff cannot determine with precision the cases in which the grouping rules might have been applied in a manner inconsistent with the amendment"; (c) another amendment to restrict how the drug guidelines should be calculated could impact "538 of those persons [who] were sentenced using a Base Offense Level" a certain way, but "staff cannot determine in which of the 538 cases the court may have applied a BOL" this way.

Long story short, it is clear that not very many current federal prisoners could possibly be impacted by making new guidelines retroactive (likely less than 2% of the current BOP population), but it is actually quite unclear if any significant number of current prisoners would benefit.  Whether and how these small numbers and the data uncertainty might impact the Commission's retroactivity decision remains to be seen.

May 19, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Does quadriplegic inmate deserve compassionate release after 49 years?"

The question in the title of this post is the headline of this editorial from a Pennsylvania paper.  The editorial seems to answer the question in the affirmative, and here are excerpts:

Ezra Bozeman was convicted of second-degree murder in 1975. The jury came to that decision 10 months after the crime occurred, when Morris Weitz was shot and killed during a robbery at a dry cleaner’s shop in Pittsburgh’s Highland Park neighborhood.

Bozeman was sentenced to life in prison. He has maintained for 49 years that he is innocent. He has appealed to the state Supreme Court. He has filed eight Post Conviction Relief Act petitions. None of that matters. Not really. Not anymore.

Those in his corner say he has been a model prisoner, counseling and mentoring others. That doesn’t matter either.

Bozeman’s doctor says the inmate is dying. Since February, he has been a quadriplegic. After 49 years locked in a cell, he is now locked in his own body.

But that doesn’t matter to the Allegheny County District Attorney’s Office either. In a hearing Tuesday, Deputy District Attorney Ronald M. Wabby Jr. argued against compassionate release for Bozeman. The reason? Wabby said there’s “no evidence to support their petition.”

Allegheny County Common Pleas President Judge Susan Evashavik DiLucente will be scheduling another hearing to take testimony from Bozeman’s physician.  Perhaps that will suffice. Gov. Josh Shapiro, the former Pennsylvania attorney general, supports the release.  The judge says she is inclined to agree.

Bozeman, 68, would not be released to go on a crime spree.  Quadriplegics cannot move any of their four limbs. He can move nothing below his neck. He requires a colostomy bag.  His attorney spoke of a pressure sore that reaches bone because the medical staff at SCI-Laurel Highlands cannot provide the kind of care someone in this condition requires.  A National Institutes of Health study claims the cost of acute care for a quadriplegic can top $500,000. It can require constant care a prison is not prepared to provide. There are bottom-line financial reasons to release a man who has been in prison since the Ford administration.

I find it interesting, though not uncommon, to see discussion of a compassionate release request framed in terms of what the inmate might "deserve."  But if rretributive desert is really what's most important in these casess, then the specifics of the crime, claims of innocence and post-crime behavior would all matter.  Yet this editorial, with its focus this inmate's apparent inability to commit future crime and the high costs of his care, is really building a case for release based on utilitarian concerns rather than retributivist ones.  Still, I understand why asking whether it would be sensible for society/Pennsylvania to grant compassionate release does not have quite the same ring as asking if an inmate "deserves" release.

Meanwhile, this lengthy news article about the case highlights that some medical testimony is in dispute, and it provides some useful data and context concerning Pennsylvania's recent compassionate release history:

Since 2016, the most recent for which data was available, through the end of 2023, 74 petitions for compassionate release were filed by Department of Corrections inmates.  Of those, 44 were granted, 10 were denied, and seven were otherwise withdrawn. In the same time, 13 people died waiting for decisions.

That’s not uncommon, according to Nishi Kumar, an attorney and head of medical-legal projects at the Medical Justice Alliance, an organization of physicians that work with incarcerated people. Many states have strict definitions of who can be released under compassionate release statutes, and some people are deemed “not sick enough.”...

So far in 2024, nine petitions have been filed in Pennsylvania, and five have been granted. One person died during the court process. Two are pending, including Bozeman’s. The number of compassionate release petitions filed each year has increased: from three or four each year to 13 in 2022 and 18 in 2023. Some of that could be because of continued pushes for criminal justice reform and increased attention on cases similar to Bozeman’s.

Spotlight PA, a nonprofit Pennsylvania news outlet, profiled Raymond Caliman in early 2022. At 68, an infection had left him bedridden and deteriorating but not at imminent risk of dying. After Spotlight’s piece published, the Abolitionist Law Center took up Caliman’s case, and he was ultimately released to hospice care in Philadelphia. He died less than two months later.

Pennsylvania has just under 40,000 persons in its prisons; even with the recent uptick in compassionate release petitions, it seems far less than 0.05% are seeking this release each year in the Keystone State.

May 19, 2024 in Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, May 17, 2024

World's greatest (golf) driver gets (over?) charged for reckless driving on way to PGA Championship

I have been looking forward to spending my weekend mostly ignoring work while watching the PGA Championship to see if World No. 1 golfer Scottie Scheffler could secure the second leg of the Grand Slam after his impressive Masters victory last month.  But an unfortunate incident, as detailed in this Fox News story, now has me thinking about work in conjunction with Scheffler as I trying to figure out Kentucky criminal procedure and sentencing law.  Here are some particulars in a story that I still find stunning:

Scottie Scheffler ended Thursday within striking distance of the lead in hopes of winning the first PGA Championship of his career, but Friday got off to a rough start. Scheffler was arrested and charged after he allegedly failed to follow police orders as he was about to enter Valhalla Golf Course in Louisville, Kentucky, for the second round of the tournament. He released a statement before he teed off in the second round.

"This morning, I was proceeding as directed by police officers. It was a very chaotic situation, understandably so considering the tragic accident that had occurred earlier, and there was a big misunderstanding of what I thought I was being asked to do," he said. "I never intended to disregard any of the instructions. I’m hopeful to put this to the side and focus on golf today...."

ESPN reported that Scheffler drove past a police officer in his SUV with markings on the door indicating it was a PGA Championship vehicle. The officer screamed at him to stop and then attached himself to the car until Scheffler stopped his vehicle about 10 yards later. ESPN reporter Jeff Darlington characterized it as a "misunderstanding with traffic flow" as authorities were investigating a traffic fatality earlier in the morning.

"Scheffler was then walked over to the police car, placed in the back, in handcuffs, very stunned about what was happening, looked toward me as he was in those handcuffs and said, ‘Please help me,’" Darlington said on ESPN’s "SportsCenter." "He very clearly did not know what was happening in the situation. It moved very quickly, very rapidly, very aggressively."

Scheffler was booked into the Louisville Department of Corrections later Friday.  He was charged with second-degree assault of a police officer (a felony), criminal mischief, reckless driving and disregarding signals from an officer directing traffic. 

A police report said a detective was knocked down after Scheffler refused "to comply and accelerated forward." The detective was allegedly dragged to the ground and he suffered injuries to his wrist and knee." 

Scheffler’s attorney, Steve Romines, released a statement on the incident. "In the early hours of the morning in advance of his tee time Scottie was going to the course to begin his pre round preparation," he said, via Sports Illustrated. "Due to the combination of event traffic and a traffic fatality in the area it was a very chaotic situation He was proceeding as directed by another traffic officer and driving a marked player’s vehicle with credentials visible. In the confusion, Scottie is alleged to have disregarded a different officer’s traffic signals resulting in these charges. Multiple eyewitnesses have confirmed that he did not do anything wrong but was simply proceeding as directed. He stopped immediately upon being directed to and never at any point assaulted any officer with his vehicle. We will litigate this matter as needed and he will be completely exonerated."

Scheffler was coming off of four victories in the last five tournaments, including a second Masters title.  He was home in Dallas the last three weeks waiting for the birth of his first child, which occurred on May 8.  

I have already seen various conflicting reports about how Scheffler was driving, but even the worst version of the story leaves me puzzled by a felony second-degree assault charge which in Kentucky carries a prison term of five to ten years and requires intentionally or wantonly causing injury.  The other lesser charges seem potentially a bit more fitting, though this still sounds a lot more like an unfortunate misunderstanding than a criminal episode calling for multiple charges including a very serious felony count.  Given that a police officer was injured in this unfortunate incident, I can understand why it is being treated seriously.  But I would like to think a lot of matters can be treated seriously without the filing of multiple and serious criminal charges.

Even without knowing anything about criminal Kentucky criminal procedure and sentencing law, I am fairly confident that Scheffler and his lawyer(s) will get this matter straightened out relatively quickly.  (And, notably, as I write this post, Schefller is under par through his first five holes, so he seems to be coping well.)  But one always wonders about an array of collateral consequences from criminal justice involvement.  For example, this new article in its headline highlighted that Scheffler may have to worry about a unique kind of collateral consequence: "Paris Olympics: Will Scottie Scheffler be Denied Entry After Arrest Scandal?"

May 17, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Sports, Who Sentences | Permalink | Comments (54)

Thursday, May 16, 2024

"Trial Ambivalence"

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

Much of the rhetoric about criminal justice reform posits that trials are good and pleas are bad.  Trials provide full, public adversarial process, while plea bargaining is secretive, coercive, and unfair.  As such, a thread of reform has emerged calling for more trials and fewer pleas.  As this Article argues, underlying these reform efforts is an unspoken ambivalence about trials among the very reformers who clamor for more of them.  This ambivalence stems from the often unacknowledged reality that many of the common harms associated with plea bargaining are frequently benefits when viewed through the lens of trial avoidance.

This ambivalence is not new.  Indeed, in its plea bargaining jurisprudence the Supreme Court has long demonstrated its own ambivalence about the American trial system, even while romanticizing the trial.  Modern-day criminal justice reformers often wax poetically about trials, while simultaneously resisting efforts to actually require more trials. The ambivalence unearthed here demonstrates how little legal stakeholders — lawyers, judges and reformers — trust the American jury process to produce just results.  As long as the romantic narrative of trials persists in tandem with this ambivalence, reform efforts may actually more deeply entrench plea bargaining.

May 16, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Texas Gov fulfils pledge to pardon man convicted of murdering BLM marcher and sentenced to 25 years

The Govenor of Texas issued a notable (and previously promised) clemency, as detailed in this local article.  Here are excerpts:

Daniel Perry, a former Army sergeant convicted of killing a Black Lives Matter protester in downtown Austin in 2020, was freed from prison Thursday within an hour of Gov. Greg Abbott signing a pardon proclamation in a case that triggered a political and legal firestorm.

In a series of rapid-fire developments in a less than two-hour span, the Texas Board of Pardons and Paroles recommended that Perry be pardoned on the murder conviction.  Abbott then granted the full pardon to Perry, leading to his release from the Mac Stringfellow Unit in Rosharon, about 20 miles south of downtown Houston. Perry, 36 at the time of his April 2023 conviction, may also be able to apply to have his record expunged, according to the Texas Department of Criminal Justice.

The board announced its recommendation to pardon Perry and restore his firearm rights in a statement posted on its website Thursday.  Its decision came after a "meticulous review of pertinent documents, from police reports to court records, witness statements, and interviews with individuals linked to the case," the statement said.

In July 2020, Perry shot and killed Garrett Foster after Perry drove into a racial justice protest on Congress Avenue. Perry claimed that he shot Foster, who was carrying an AK-47 rifle, in self-defense. During Perry’s trial last year, prosecutors argued that Perry had sought out confrontation.

"Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney," Abbott said in a statement Thursday.  "I thank the Board for its thorough investigation, and I approve their pardon recommendation.” In a proclamation Thursday, Abbott took aim at Travis County District Attorney José Garza, writing that Garza "demonstrated unethical and biased misuse of his office in prosecuting Daniel Scott Perry."

Less than 24 hours after a jury in April 2023 found Perry guilty of murder, Abbott said on social media that he would approve a pardon if one were recommended by the Texas Board of Pardons and Paroles. The announcement came after prominent conservative figures called on him to undo Perry's conviction. Shortly after Abbott’s announcement, a state district judge unsealed court records that contained Perry’s previously unreleased messages and social media posts, which contained racist rhetoric.

"Daniel Perry was imprisoned for 372 days and lost the military career that he loved," Doug O'Connell, an attorney who represents Perry, said in a statement. "The action by Governor Abbott and the Pardon Board corrects the courtroom travesty which occurred over a year ago and represents justice in this case. "I spoke to Daniel Perry this afternoon. He is thrilled and elated to be free. Daniel is also optimistic for his future."

Garza condemned the actions of the parole board and Abbott, writing in a statement that they have "put their politics over justice and made a mockery of our legal system."

Gov Abbott's proclamation is available at this link and his statement is at this link; the pardon board's statement is available at this link.

Prior related posts:

May 16, 2024 in Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (18)

Notable (below-guideline) sentence for key anti-abortion activist after trial conviction

As reported in this Washington Post article, a "30-year-old antiabortion activist who kept fetuses in a Capitol Hill home was sentenced Tuesday to nearly five years in prison for illegally blockading and breaking into a reproductive health clinic in D.C." Here is more about a number of sentencings in this case:

Lauren Handy, of Alexandria, Va., received a 57-month term and became the first person to be sentenced for the combination of conspiring to violate reproductive health rights under a federal civil rights law and violating the Freedom of Access to Clinic Entrances Act, a 1994 law that prohibits threats to and obstruction of a person seeking reproductive health services or providers....

Handy, convicted by a jury last year, was charged along with nine others after the group launched an antiabortion blockade at the Washington Surgi-Clinic in 2020.  Handy’s was the first of four clinic-access cases pending trial or sentencing around the country in which the Justice Department under the Biden administration has charged defendants with obstructing clinic access in combination with a conspiracy against rights — a civil rights law passed after the Civil War that makes it punishable by up to 10 years in prison to “conspire to injure, oppress, threaten, or intimidate any person” exercising a constitutional or legal right. Violations of the 1994 clinic access law alone are punishable by up to a one-year prison term.

Handy gained additional notoriety when, on the same day a federal indictment was announced against the defendants, D.C. police discovered five fetuses in a Capitol Hill rowhouse basement where she had been staying. The criminal trial, however, had nothing to do with the fetuses that antiabortion activists say they collected from outside the same D.C. abortion clinic, and authorities have not charged anyone in that matter.

Handy and co-conspirators live-streamed a preplanned “lock-and-block” blockade that used force and physical obstructions to shut down the D.C. clinic on Oct. 22, 2020, Kollar-Kotelly said in summarizing trial evidence. Prosecutors said Handy was the leader of the group that orchestrated the blockade and recruited participants, arranged lodging and used a fake name to book an appointment. A nurse was injured and patients were traumatized in the incursion, including two women who begged to enter for treatment and one who suffered a medical emergency, the judge said.

“It was not peaceful, and it was not contemplated to be peaceful,” Assistant U.S. Attorney Sanjay Patel argued in a 90-minute sentencing hearing. The government sought a sentence at the high end of a 63- to 78-month range recommended by federal guidelines — up to 6½ years — based on Handy’s leadership role, obstructive conduct, the violence and victims in the case.

Prosecutors called her “an active antiabortion extremist” who has organized clinic blockades around the country, resulting in four convictions for which she was sentenced up to 45 days in jail, with all terms suspended or pending appeal. Patel also cited the need for deterrence, saying that without a stiffer punishment “the purpose of sentencing may be lost on this defendant.”

Also sentenced Tuesday with Handy were John Hinshaw, 69, of Levittown, N.Y., who received 21 months of incarceration; and William Goodman, 54, of the Bronx, who was sentenced to 27 months....

Defense attorney Martin A. Cannon cited more than nine letters of support for Handy and likened her actions to those of civil rights leaders such as Martin Luther King Jr. and Rosa Parks, saying she “did not act out of self-interest, but … at her own peril,” in good faith and out of conscience.  Cannon said Handy was a peaceful, kindhearted person with a history of philanthropic work in Haiti and on behalf of homeless people who was “trying to save babies from being killed.”  He continued, “Lauren did nothing on her own that was violent or forceful.  She did not, I submit, anticipate any of the force that resulted.”

Kollar-Kotelly said that to the contrary, the evidence showed that Handy and her co-plotters planned to push their way into the clinic, and fretted beforehand over possible use of violence.  She said the case was “not a referendum on abortion, but violation of civil rights” of patients and medical practitioners.

The judge concluded that while Handy and her co-conspirators were entitled to have “very strong views about abortion,” she found it disheartening that they “showed no compassion or empathy to women patients who were human beings in pain and seeking medical care.”

Handy and seven co-defendants, including Idoni and Geraghty, were found guilty on all counts in two federal jury trials in August and September.  Another was convicted at a bench trial before a judge in November, and one pleaded guilty. The man who pleaded guilty, Jay Smith, 32, of Freeport, N.Y., received 10 months last year after pushing a nurse who fell and suffered an ankle injury in the blockade.  The remaining six will be sentenced later this month.

Kollar-Kotelly noted that other civil rights conspiracy cases involving the Freedom of Access to Clinic Entrances Act are pending in Tennessee, Michigan and Florida. Because no one else has been sentenced under the laws in combination, she said she relied on federal sentencing guidelines for the alleged and convicted conduct.

I have not followed these cases closely, so I may not have the facts right, but this certainly seems to be another situation involving a trial penalty.  Handy, who seemngly did not directly commit any violence, gets almost 5 years in prison after exercising her tiral rights; Smith, who injured a nurse, is sentenced to only 10 months after pleading guilty.  Handy does seem to have some aggravating history and a leadership role, so the differential here may be the result of various other factors.  But still, based on the facts reported here, I am not sure other facts really full account for Handy getting a sentence nearly six times longer.

May 16, 2024 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (21)

Wednesday, May 15, 2024

"Victims as Fact-Finders"

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

This article critiques the common practice of excluding crime victims from serving as jurors in criminal cases.  Although systematic data on the voir dire process are hard to come by, both case research and empirical evidence suggest that judges routinely permit questioning of potential jurors regarding their victimization status, and that high percentages of both judges and attorneys consider victimization status a proper basis for exclusion.

The practice of victim-exclusion causes serious harms.  Excluding victims undermines the jury’s legitimacy as an institution and sends corrosive social messages regarding the status of victims in our society.  Nor are these harms offset by any increase in accuracy we might obtain by avoiding supposedly biased jurors.  Rather, victims’ unfortunate experiences can sharpen their ability to delineate true from false accusations.  Finally, there is no sound justification for assuming that victims’ degree of empathy for other victims is improper, relative to people who have not been victimized. Instead, victims’ participation should offset the troubling reluctance of people without such experiences to credit victims’ testimony and hold abusers to account.

May 15, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)