Sentencing Law and Policy

Supreme Court unanimously reiterates "totality of the circumstances" approach to Fourth Amendment

The Supreme Court this morning handed down a short opinion in Barnes v. Felix, No. 23–1239 (S. Ct. May 15, 2025) (available here).  The unanimous ruling, authored by Justice Kagan for the Court, breaks no new ground, but reiterates prior doctrines in reversing the Fifth Circuit.  Here is how the nine-page opinion for the Court starts:

A police officer’s use of deadly force violates the Fourth Amendment when it is not “objectively reasonable.” Graham v. Connor, 490 U.S. 386, 397 (1989). And that inquiry into reasonableness, we have held, requires assessing the “totality of the circumstances.” Id., at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 9 (1985)).

The question here is whether that framework permits courts, in evaluating a police shooting (or other use of force), to apply the so-called moment-of-threat rule used in the courts below.  Under that rule, a court looks only to the circumstances existing at the precise time an officer perceived the threat inducing him to shoot. Today, we reject that approach as improperly narrowing the requisite Fourth Amendment analysis.  To assess whether an officer acted reasonably in using force, a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment.

Justice Kavanaugh authored a six-page concurring opinion that was joined by Justices Thomas, Alito and Barrett. Here is its first paragraph:

I join the Court’s opinion.  I agree that the officer’s actions during the traffic stop in this case should be assessed based on the totality of the circumstances.  I write separately to add a few points about the dangers of traffic stops for police officers, particularly when as here the driver pulls away in the midst of the stop.

I will leave it to Fourth Amendment experts to determine if there is anything doctrinally consequential in this rulings. For me and perhaps other sentencing fans, some of the broader vibes seem worth noting. For example, it seems interesting (but perhaps unsurprising) who joined and who did not join Justice Kavanaugh's concurrence. In addition, I find notable that both opinions include much discussion of modern Fourth Amendment caselaw, as well as modern policing realities, but seemingly do not engage at all the text, history and tradition of the actual Fourth Amendment.

New Georgia law reforms process for exempting persons with intellectual disability from capital punishment

Georgia's administration of capital punishment has long had a unique place in the history of the death penalty in the United States.  But, as detailed in this local article, one unique aspect of its modern death penalty process changed this week to be more in line with other state capital processes.  Here are the details:

HB 123 lowers the legal threshold for proving a person has an intellectual disability in the courtroom.  Prior to the bill being signed, it had to be proven “beyond a reasonable doubt,” the highest threshold for evidence.  Now, under HB 123, it must be proven “by preponderance of evidence,” a much lower standard of proof.

Georgia first outlawed capital punishment for people with proven intellectual disabilities in 1988, but the standard of proof remained among the most difficult in the nation to achieve.  A 2002 decision from the U.S. Supreme Court outlawed capital punishment for people with proven intellectual disabilities nationwide, but left it up to individual states to determine the threshold for proving a disability in court.  Until Tuesday, Georgia remained the only state where it must be proven “beyond a reasonable doubt.”...

The new law also moves the proceeding to determine intellectual disability ahead of a formal trial, not during it, meaning a person’s mental capacity is determined right away....

The law is not retroactive. Georgia currently has 34 inmates remaining on death row, and none of them are eligible for appeal under HB 123.  Unlike some bills signed by the governor which take effect July 1, HB 123 became active law when Kemp signed it Tuesday.

The law's shift to a pretrial determination of intellectual disability means that now in Georgia, as is the case in all other states, it will be for a judge to determine whether a defendant is intellectually disabled rather than being determined by a jury while assessing guilt or innocence.

Notable reporting on the new "wild west" of clemency in Prez Trump's second term

In this post around Thanksgiving last year at the Sentencing Matters Substack, I made the case for chief executives to make more and more regular use of their clemency powers.   And I had this musing in that commentary:  "I think it worthwhile to imagine how possible actions by Trump to prioritize use of his clemency powers early in his second term might portend a new clemency tradition — and not just for Presidents, but also for Governors — of chief executives exercising this historic constitutional power early and regularly, rather than in just a lame-duck frenzy."  Not long thereafter, of course, both out-going Prez Biden and in-coming Prez Trump made greater use of their clemency powers than I could have predicted or guessed.

My prior piece came to mind as I read this notable new Wall Street Journal article fully headlined "The Wild West of Presidential Pardons in Trump’s Second Term: Trump sets off scramble among those seeking clemency to use lobbyists, personal connections to president."  I recommend the article in full, and here are excerpts:

Trump has turned the pardon process into the Wild West. What had long been a sober legal proceeding done by career officials in the Justice Department increasingly resides in the White House and depends on the whims of a president who is receptive to arguments of political persecution.

The president, according to a senior administration official, has taken a particular interest in the work of Alice Johnson, the pardon czar he appointed earlier this year. He regularly asks her, “Where are my pardons?” The White House is expected to announce a substantial batch of pardons in the coming weeks, the official said.

Pardon seekers are shelling out to hire lawyers and lobbyists who tout access to those in the president’s inner circle. Others seek to make their case to Trump or his inner circle at places they frequent, showing up at events at Mar-a-Lago in Florida, GOP hangouts on Capitol Hill and a collegiate wrestling match. And still others connect with conservative influencers, pitching their case on shows Trump consumes.

The president is listening. Several of the pardons he has issued so far followed advocacy by people close to him. Some lawyers with close ties to Trump, including the president’s former lawyers Jesse Binnall and Jim Trusty, have helped clients pursue pardons, people familiar with the matter said. Others who have received pardons got boosts from Health and Human Services Secretary Robert F. Kennedy Jr. and former GOP Rep. Matt Gaetz, a longtime ally of Trump’s....

Pardon seekers have found success drawing parallels between their cases and those of Trump, a felon who has railed against his own experience with the justice system. “You need someone who can get in front of the president for five minutes and make a pitch of how a person was wrongfully targeted,” said Eric Rosen, a defense attorney who has clients seeking pardons.

A senior administration official said that pardon applicants undergo “extensive vetting,” conducted by the pardon czar’s office, the White House Counsel’s Office and the Justice Department. The administration’s priority, the official said, is to pardon those who were the targets of “unfair justice” or those deserving of a second chance.

Some prior recent related posts covering only a portion of Prez Trump's clemency actions:

• Prez Trump grants 14 commutations and blanket pardons to all other Jan 6 defendants 
• Prez Trump formally announces Alice Marie Johnson will be his "pardon czar" 
• Wide praise, but uncertain plans, for Prez Trump's new pardon czar
• Prez Trump continuing to make robust use of his clemency pen (for white-collar offenders) 
• Prez Trump keeps using his clemency pen, building quite the clemency record
• "Lawyers Are Quoting $1 Million in Fees to Get Pardons to Trump"

Menendez brothers resentenced by California judge to 50 years to life, making them parole eligible

As reported in this Los Angeles Times article, "Erik and Lyle Menendez received a chance at freedom Tuesday after more than 35 years in prison, with an L.A. County judge granting a request to resentence them after hours of emotional testimony from family members who said the brothers had spent enough time behind bars for the brutal 1989 killings of their parents."  Here is more:

Superior Court Judge Michael Jesic said late Tuesday that he would resentence the brothers to 50 years to life, meaning they will be granted a parole hearing at some point in the future. “We are deeply humble and grateful and happy for our family,” Lyle Menendez said in a phone call with one of his attorneys outside the courthouse in Van Nuys, which was relayed to a Times reporter.

Dist. Atty. Nathan Hochman argued that the brothers had failed to show proper “insight” into their crimes and had not atoned for lies they told over the last 30 years about the nature of the killings, but Jesic dismissed those arguments as irrelevant . Prosecutors needed to prove the brothers posed an unreasonable risk to the public, according to Jesic, who said they failed to do so.

After deciding they should be resentenced, Jesic allowed each brother to speak to the court over a Zoom call from prison. In tearful addresses that drew sobs from the relatives who have been fighting for their release for years, Erik and Lyle said they took full responsibility for their crimes. ...

Jesic’s decision ended an eight-month saga that started when then-Dist. Atty. George Gascón filed a petition for the brothers to be resentenced late last year, and followed an emotional day of testimony.... The hearing was the culmination of years of advocacy by the family to free the brothers, who were convicted of first-degree murder.

Defense attorney Mark Geragos asked Jesic to resentence the brothers to manslaughter, arguing they shot their parents to death out of fear their father might kill them to cover up years of sexual abuse. But instead, Jesic’s ruling aligned with a request made last year by Gascón.  The reduced sentence of 50 years to life makes them eligible for parole under the state’s youthful offender law because they were under the age of 26 at the time of the murders....

A parole hearing will likely be scheduled in the coming months. But Gov. Gavin Newsom could also grant them clemency if he honors a pending request. A hearing on that matter is currently scheduled for June 13.

California’s resentencing law leans heavily in favor of defendants, a point Jesic reminded the courtroom of early Tuesday. Under state law, Jesic said, he could block a resentencing petition only if the defendant poses an “unreasonable risk of danger to public safety,” meaning there is a risk they will commit another violent crime — such as murder, manslaughter or rape — if they are released.

Some prior related posts:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so
• LA District Attorney announces that he will seek resentencing for the Menendez brothers
• Continuing coverage and comment on Menendez brothers' possible resentencing 
• California Gov to hold off on Menedez clemency decision pending resentencing review by new DA
• New Los Angeles DA asks to withdraw prior DA's motion for resentencing in Menedez brothers' case 
• Judge rejects new Los Angeles DA's request to revoke predecessor's resentencing petition for Menendez brothers 

Could Prez Trump's new EO on overcriminalization prompt the US Sentencing Commission to review strict liability guideline enhancements?

As flagged in this post, just a couple of days before he left the Oval Office back in 2021, Prez Trump issued an exective order titled "Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform."  I am pretty sure that EO got quickly repealed in the early days of the Biden Administration.  But with a second stint in the Oval Office, Prez Trump this time prioritized this important criminal justice reform topic with this new EO dated May 9, 2025 titled "Fighting Overcriminalization In Federal Regulations." 

Because I have long been troubled by federal "overcriminalization," and because I have work with various public policy groups on advocating for various mens rea reforms, I am quite pleased to see this new EO.  And, as the title of this post suggests, I am keen to speculate about whether and how the EO could have some sentencing echoes.  The EO merits reading in full, but here are a few excerpts catching my attention:

Many ... regulatory crimes are “strict liability” offenses, meaning that citizens need not have a guilty mental state to be convicted of a crime....

This status quo is absurd and unjust.  It allows the executive branch to write the law, in addition to executing it.  That situation can lend itself to abuse and weaponization by providing Government officials tools to target unwitting individuals....

The purpose of this order is to ease the regulatory burden on everyday Americans and ensure no American is transformed into a criminal for violating a regulation they have no reason to know exists....

Strict liability offenses are “generally disfavored.”  United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978).  Where enforcement is appropriate, agencies should consider civil rather than criminal enforcement of strict liability regulatory offenses or, if appropriate and consistent with due process and the right to jury trial, see Jarkesy v. Securities and Exchange Commission, 603 U.S. 109 (2024), administrative enforcement.

Agencies promulgating regulations potentially subject to criminal enforcement should explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to those offenses....

Strict liability criminal regulatory offenses are disfavored.  Any proposed or final criminal regulatory offense that includes a strict liability mens rea for the offense shall be treated as a “significant regulatory action”...

Because this EO only formally applies only to "a Federal regulation that is enforceable by a criminal penalty" and adresses only executive agencies, the US Sentencing Commission and its federal sentencing guidelines are not subject to any direct mandates via this EO.  But given that the Trump Administration calls it "absurb and unjust" to prosecute persons when underlying conduct may not evince a guilty mental state, it arguably ought also be seen as  problematic for severe sentencing enhancements to be based on astrict liability and entirely untethered from proven criminal intent.  Yet many of the most severe guideline sentencing enhancements — particularly those related to "loss" amounts, to drug type/quantity, and to other quantitative metrics — are "strict liability" enhancements, meaning that persons need not have any culpable mental state connected to specific guideline factors that can double or triple or quadruple the recommended guideline sentence.

Especially give that criminal regulatory offenses will be subject to punishment under the federal sentencing guidelines, I believe this EO ought to, at the very least, prompt the Commission to review all of its existing to make sure mens rea issues are given full concern and due respect at sentencing.  Of course, given that judge have always been required to consider "the nature and circumstances of the offense" and to "provide just punishment" under 18 U.S.C. § 3553(a), mens rea concerns have been a viable element of sentencing arguments and decision-making.  But, the same could be said for the charging discretion of federal prosecutors before this EO, and yet the Trump Administration is here demanding our justice system give more express and focused attention to any "putative defendant’s general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue."  I hope the USSC might, perhaps spurred by both the letter and the spirit of this EO, consider review and revision of its guidelines to minimize the risk of "absurd and unjust" levels of punishment based on strict liability sentencing enhancements.

"The Nuances of Prosecutorial Nonenforcement"

The title of this post is the title of this new article authored by Carissa Byrne Hessick and Meighan Parsh now available via SSRN. Here is its abstract:

The academic literature on prosecutors is divided: Some commentors believe that prosecutors should use their ability to decline to bring charges more aggressively, decreasing the overall number of criminal cases and helping to address the problem of mass incarceration.  Others believe that broad prosecutorial nonenforcement poses significant risks to our constitutional order and to public safety.  While the visibility of this debate has increased-spilling over from the pages of law reviews into political campaigns and headlines-the terms of that debate are, at times, unclear. Prosecutorial nonenforcement is a multi-faceted phenomenon, and discussions about its costs and benefits can obscure necessary tradeoffs between important values and principles.

This Article brings much needed nuance to the debate surrounding prosecutorial nonenforcement.  It provides a three-tiered taxonomy of nonenforcement decisions, identifying different nonenforcement methods, justifications, and decisionmakers. It also explains how different features of nonenforcement implicate conflicting values, such as individualization and consistency.  By providing this taxonomy and highlighting these tradeoffs, the Article seeks to improve the terms of the debate surrounding prosecutorial nonenforcement.  In so doing, it demonstrates that, although abstract discussions about nonenforcement can be valuable, they are no substitute for an assessment of the substance of those decisions.

Latest data on death rows in US (at roughly start of second Trump Administration)

Via this post by Robert Dunham at The DP3 Substack, I see that the Legal Defense Fund has released its latest accounting of persons on death rows in the US, Death Row USA, Spring 2025.  The LDF document, which runs 60 pages, has lots and lots of death row data and other information, and the substack post provides various highlights.  Here is how that post start (with my emphasis added at the end): 

The number of prisoners on death rows or facing capital retrials or resentencing proceedings across the United States has fallen to 2,067 as of April 1, 2025, according to the Spring 2025 Death Row U.S.A. (“DRUSA”), a quarterly census of the U.S. death row population by the Legal Defense Fund.  The new total represents a decline of 25 prisoners (1.2%) from the 2,092 people whom LDF reported faced active death sentences or possible resentencing at the start of the year.

Historically, the extent of the decline in the national death-row population in any single quarter does not predict what will happen the coming months, although the long-term trends are clear. The nation’s death-row population declined by only 0.6% (14 people) in the first quarter of 2024, but ended the year with 149 fewer death-row prisoners, the largest death-row population decline in more than two decades and the highest annual percentage decline (6.6%) in nearly a half-century. LDF’s Spring 2025 death-row census, released on May 2, reported 160 fewer individuals on death-row or facing continuing jeopardy of capital resentencing than in its Spring 2024 census, marking a one-year decline of 7.2%.  LDF has reported a decline in the number of people on death row in the U.S. in every quarterly DRUSA census since January 2010 and in each of the last 24 years.  Overall, the U.S. death-row population has fallen 44.5% since its peak of 3,726 at the close of 2000.

As the title of this post hints, I wonder if the consistent and long-running decline in the number of persons on US death rows might be disrupted in coming years.  As noted in this post, Prez Trump issued this Executive Order on his first day in office titled “Restoring the Death Penalty and Protecting Public Safety,” which contains multiple provisions that aspire to "ensure that the laws that authorize capital punishment are respected and faithfully implemented."  Though there are legal and practical limits to how the federal executive branch can directly impact the number of capital charges and sentences (especially in state systems), this EO strikes me as one marker of what I perceive to be a (small?) "vibe shift" in the adminitration of capital punishment that could echo in various ways through death rows.

Though a "vibe shift" in the adminitration of capital punishment may not be tangible (or even real) with regard to the number of death sentences in the US, there already seems to be an increase in the number of executions in the US since Prez Trump took office.  Specifically, there were 15 executions in various states in roughly a 90-day perioud after Prez Trump returned to office, and it has been many years since the US has averaged more than an execution per week for such an extended period.  Of course, lots of factors with nothing to do with the President influence executon dates and rates, but I still find these various new metrics notable.

En banc Ninth Circuit broadly rejects Second Amendment challenge to federal felon-in-possession prohibition

Yesterday the Ninth Circuit via a lengthy en banc ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2025) (available here), rejected a Second Amendment challenge to the federal criminal law, 18 USC § 922(g)(1), that makes it a serious felony for a person with the equivalent of a prior felony to possess a firearm. The full opinion with the opinion for the court and three additional opinions runs 127 pages. Helpfully, the start of the main opinion provides a useful summary of the state of lower-court law on this oft-litigated issue:

Duarte argues that § 922(g)(1) is unconstitutional as applied to non-violent felons like him under Bruen’s analytical framework.  While this is an issue of first impression for our court, we do not write on a blank slate, as Courts of Appeals across the nation have been wrestling with fresh challenges to the viability of § 922(g)(1) in the wake of Bruen.  Four circuits have upheld the categorical application of § 922(g)(1) to all felons. See United States v. Hunt, 123 F.4th 697, 707–08 (4th Cir. 2024) (rejecting an as-applied challenge on a categorical basis); United States v. Jackson, 110 F.4th 1120, 1129 (8th Cir. 2024) (same); Vincent v. Bondi, 127 F.4th 1263, 1265–66 (10th Cir. 2025) (rejecting an as-applied challenge because neither Bruen nor United States v. Rahimi, 602 U.S. 680 (2024), abrogated circuit precedent foreclosing such a challenge); United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2024), cert. granted, judgment vacated, No. 24-5744, 2025 WL 76413 (U.S. Jan. 13, 2025) (holding that Bruen did not abrogate circuit precedent foreclosing such challenges).

Other circuits have rejected as-applied challenges, but have left open the possibility that § 922(g)(1) might be unconstitutional as applied to at least some felons.  See United States v. Diaz, 116 F.4th 458, 471 (5th Cir. 2024) (rejecting an as-applied challenge because the defendant’s underlying felony was sufficiently similar to a death-eligible felony at the founding); United States v. Williams, 113 F.4th 637, 661–62 (6th Cir. 2024) (rejecting an as-applied challenge because the defendant’s criminal record sufficiently showed that he was dangerous enough to warrant disarmament). By contrast, the Third Circuit has held that § 922(g)(1) is unconstitutional as applied to a felon who was convicted of making a false statement to secure food stamps. See Range v. Att’y Gen., 124 F.4th 218, 222–23 (3d Cir. 2024) (en banc).  And, as of the date of this writing, the First and Second Circuits have declined to address constitutional challenges to § 922(g)(1) on the merits, while the Seventh Circuit has yet to definitively resolve an as-applied challenge.  See United States v. Langston, 110 F.4th 408, 419–20 (1st Cir. 2024) (rejecting an as-applied challenge because there was no “plain” error); United States v. Caves, No. 23-6176-CR, 2024 WL 5220649, at *1 (2d Cir. Dec. 26, 2024) (same); United States v. Gay, 98 F.4th 843, 846–47 (7th Cir. 2024) (assuming for the sake of argument that there is some room for an as-applied challenge, but rejecting the defendant’s specific as-applied challenge because his prior felonies included aggravated battery of a peace officer and possession of a weapon while in prison).

Today, we align ourselves with the Fourth, Eighth, Tenth and Eleventh Circuits and hold that § 922(g)(1) is not unconstitutional as applied to non-violent felons like Steven Duarte.

The Supreme Court has so far dodged this issue, which has been broadly litigated since Heller was decided back in 2008 and which has generated considerably more lower court division since Bruen and Rahimi reoriented Second Amendment jurisprudence.  WIth this latest ruling in the largest circuit, and with the Justice Deparment's new efforts to restore gun rights to more persons with criminal convictions (noted here), I suspect the Justices might see even more reasons to avoid taking up this issue in the days ahead.

A few of many prior related posts:

• Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi 
• After Rahimi remand, Eighth Circuit panel again rejects Second Amendment challenge to federal felon in possession charge
• Sixth Circuit panel rules federal prohibition of felon gun possession is "constitutional on its face and as applied to dangerous people"
• Third Circuit panel states "Second Amendment’s touchstone is dangerousness" when remanding rights claim by person with multiple gambling-related offenses
• New report details that persons with felony records have brought most gun litigation after Bruen changed Second Amendment law 
• Notable new accounting of post-Bruen Second Amendment claims brought by 1,450 criminal defendants 
• What kind of Second Amendment case will be next for SCOTUS after Bruen and Rahimi?

Brief initial reflections on the late Justice David Souter's sentencing law legacy

As reported in this extensive New York Times piece authored by Linda Greenhouse, "David H. Souter, a New Hampshire Republican who was named to the Supreme Court by President George H.W. Bush and who over 19 years on that bench became a mainstay of the court’s shrinking liberal wing, died on Thursday at his home in Concord, N.H.  He was 85."  The article provides a lovely accounting of the man as well as his political and legal background and legacy. 

In part because Justice Souter did not author all that many major sentencing opinions, his sentencing legacy arguably is defined by his provision of key fifth votes in Sixth Amendment cases like Apprendi and Blakely/Booker and Eighth Amendment cases like Roper and Kennedy.  And, not to be overlooked, Justice Souter authored the opinion for the Court in Jones v. US, 526 U.S. 227 (1999), a statutory interpretation case that ultimately provided the conceptual underpinings (and a uniquely composed majority) that resulted in the Apprendi revolution in 2000.   In particular, footnote 6 of the Jones opinion for the Court authored by Justice Souter provided this textured discussion of what would become constitutional law a year later:

FN 6 The dissent repeatedly chides us for failing to state precisely enough the principle animating our view that the carjacking statute, as construed by the Government, may violate the Constitution.  See post, at 1, 14, 17.  The preceding paragraph in the text expresses that principle plainly enough, and we re-state it here: under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.  Because our prior cases suggest rather than establish this principle, our concern about the Government’s reading of the statute rises only to the level of doubt, not certainty. Contrary to the dissent’s suggestion, the constitutional proposition that drives our concern in no way “call[s] into question the principle that the definition of the elements of a criminal offense is entrusted to the legislature.” Post, at 16 (internal quotation marks omitted).  The constitutional guarantees that give rise to our concern in no way restrict the ability of legislatures to identify the conduct they wish characterize as criminal or to define the facts whose proof is essential to the establishment of criminal liability.  The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof.

There are a few other notable separate opinions by Justice Souter in sentencing cases like Koon v. US and Rita v. US.  Indeed, as a lone dissenter in Rita, I was especially drawn to his vision of vindicating Fifth and Sixth Amendment principles in federal sentencing:

Taking the Booker remedy (of discretionary Guidelines) as a given, however, the way to avoid further risk to Apprendi and the jury right is to hold that a discretionary within-Guidelines sentence carries no presumption of reasonableness. Only if sentencing decisions are reviewed according to the same standard of reasonableness whether or not they fall within the Guidelines range will district courts be assured that the entire sentencing range set by statute is available to them.  See Booker, supra, at 263 (calling for a reasonableness standard “across the board”). And only then will they stop replicating the unconstitutional system by imposing appeal-proof sentences within the Guidelines ranges determined by facts found by them alone.

With my Booker-addled brain, I suspect I am overlooking this morning some other sentencing work by Justice Souter that merits mention when taking stock of his legacy.  I would welcome comments that provide additional accounts of his sentencing legacy.

After withdrawal as US Attorney nomination, Prez Trump states he will have Ed Martin serve as DOJ's Pardon Attorney

As reported in this Reuters article, Prez Trump is changing path with a new nominee for the top federal prosecutor in Washington DC: "President Donald Trump on Thursday appointed Fox News host Jeanine Pirro to serve as Washington, D.C.'s interim U.S. attorney, after Ed Martin, the current interim job holder and Trump's first pick to hold the job on a permanent basis, failed to garner enough support to advance in the U.S. Senate." Here is more, including a notable clemency element:

Trump's announcement came just hours after he told reporters during a White House event that he would be withdrawing Martin's nomination due to a lack of support in the U.S. Senate for it to proceed. "I was disappointed. A lot of people were disappointed, but that's the way it works sometimes," Trump said. In a later post on Truth Social, Trump said Martin would move to a new role in the Justice Department.

"Ed Martin has done an AMAZING job as interim U.S. Attorney, and will be moving to the Department of Justice as the new Director of the Weaponization Working Group, Associate Deputy Attorney General, and Pardon Attorney," Trump wrote. "In these highly important roles, Ed will make sure we finally investigate the Weaponization of our Government under the Biden Regime, and provide much needed Justice for its victims. Congratulations Ed!"...

Republican Senator Thom Tillis of North Carolina, who sits on the committee, appeared to deal Martin's nomination a fatal blow when he told reporters at the Capitol that he could not support him because of Martin's views about the January 6, 2021, attack at the U.S. Capitol by Trump's supporters.

Notably, none of these new roles for Ed Martin, including as DOJ's Pardon Attorney, requires Senate confirmation.  And, as I have discussed in a variety of recent posts, it is unclear what role the Pardon Attorney will play when Prez Trump has seem quite comfortable using his clemency pen without DOJ input (and when he also has Alice Marie Johnson serving as "pardon czar").  Whatever else this Pardon Attorney appointment might mean, I doubt this will lead to any decrease in the going rate some lawyers are charging for pursuing clemency these days.  

A few recent related posts:

• Prez Trump grants 14 commutations and blanket pardons to all other Jan 6 defendants 
• Prez Trump formally announces Alice Marie Johnson will be his "pardon czar" 
• Wide praise, but uncertain plans, for Prez Trump's new pardon czar
• Not long after appointment of "pardon czar," Trump Administration fires Justice Department's Pardon Attorney
• Prez Trump continuing to make robust use of his clemency pen (for white-collar offenders) 
• Prez Trump keeps using his clemency pen, building quite the clemency record
• "Lawyers Are Quoting $1 Million in Fees to Get Pardons to Trump"

"Lawyers Are Quoting $1 Million in Fees to Get Pardons to Trump"

The title of this post is the headline of this new Bloomberg Law article, which is worth reading in full.  Here are some extended excerpts:

The president “is effectively and responsibly using his constitutional authority,” White House spokesman Harrison Fields said. “Over the past four years, we have witnessed the weaponization of the justice system against the president’s allies. The president is committed to righting those wrongs and ending lawfare.” The Justice Department is “committed to timely and carefully reviewing” all clemency applications and making unbiased, consistent recommendations to the president, a spokeswoman said in a statement.

President Joe Biden set a record for granting clemency during his term, and was broadly criticized by Republicans and some Democrats for protecting his family members and allies. Trump has already shown a willingness to use the clemency power more regularly, with a soft spot for displays of loyalty and gripes about prosecutorial overreach. In his second term, the president has overseen a breakdown in the traditional vetting process for deciding who gets relief and supercharged a pardon economy unlike anything seen before.

Powerful people in business and finance are rushing pitches and stepping up lobbying, catering their appeals to Trump and hiring lawyers with connections to the administration. These defendants with means are spending big for a chance to clear their names, at least in official records if not in public perception. Interviews with about two dozen lawyers and pardon hopefuls, many of whom asked not to be identified discussing plans that weren’t public, have pulled back the curtain on the clemency process under Trump. Some outlined plans to spend at least tens of thousands of dollars on attorneys, lobbyists and consultants, while others say the costs will reach well north of $1 million to put cases together and get them in front of the White House.

“There’s a huge level of interest,” said Margaret Love , who served as the US pardon attorney in the 1990s and now specializes in clemency in private practice. “People think Trump is going to do something for them.”

Presidents from both parties have long used their authority to circumvent official process and dole out pardons to friends and supporters. The constitution puts almost no limits on the practice, though leaders typically wait until the end of their tenure to award clemency. Trump has announced clemency grants on a dozen occasions since he took office three months ago....

“It seems like ordinary people who don’t have the resources to hire a lobbyist or well-connected lawyer and don’t have political connections and access to the White House front door are not being considered for clemency at all,” said Liz Oyer , who was the Justice Department ’s top pardon attorney for three years. She said she was fired in March after refusing to recommend that Hollywood actor and Trump ally Mel Gibson have his gun rights restored despite a 2011 domestic violence conviction. Gibson’s gun rights were restored in April.

Fields, the White House spokesman, said Trump would work with the administration’s pardon czar, Alice Marie Johnson, to “continue to provide justice and redemption to countless deserving Americans.”

Some prior recent related posts covering only a portion of Prez Trump's clemency actions:

• Prez Trump grants 14 commutations and blanket pardons to all other Jan 6 defendants 
• Prez Trump formally announces Alice Marie Johnson will be his "pardon czar" 
• Wide praise, but uncertain plans, for Prez Trump's new pardon czar
• Prez Trump continuing to make robust use of his clemency pen (for white-collar offenders) 
• Prez Trump keeps using his clemency pen, building quite the clemency record

Family of man killed during a road-rage incident uses AI to enable deceased to give victim statement at sentencing hearing

This local story out of Arizona seems like just one glimpse into the brave new digital world that all lawyers and legal institutions need to be thinking about.  The article is headlined "Family uses AI to create video for deadly Chandler road rage victim's own impact statement," and here are excerpts:

Christopher Pelkey was killed in a road rage incident in Chandler in 2021, but last month, artificial intelligence brought him back to life during his killer’s sentencing hearing. It was the first time in Arizona judicial history — and possibly nationwide — that AI has been used to create a deceased victim’s own impact statement.

Pelkey’s sister and brother-in-law used the technology to recreate his image and voice likeness to “talk” to the courtroom about his life and the day he met Gabriel Paul Horcasitas, who shot him during a confrontation near Gilbert and Germann roads. “In another life, we probably could have been friends,” the AI creation of the 37-year-old Army veteran said, addressing Horcasitas. “I believe in forgiveness…”

The AI video also included real video clips from videos taken while he was alive, along with some of his personality and humor, while showing a real photo he once took with an "old age" filter. "This is the best I can ever give you of what I would have looked like if I got the chance to grow old," the AI version of Pelkey said. "Remember, getting old is a gift that not everybody has, so embrace it and stop worrying about those wrinkles."...

The state asked for a 9.5-year sentence, and the judge ended up giving Horcasitas 10.5 years for manslaughter, after being so moved by the powerful video, family says.  The judge even referred to the video in his closing sentencing statements.

The local story also has a link to a three-minute video segment about the proceedings (along with a clip of the AI victim statement) that is well worth watching.

Interesting times.

"Look What You Made Me Do"

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

Who’s to blame for crime?  Individuals who commit crime or a society that has failed to keep those individuals safe and let them suffer severe economic deprivation?  Both.  But American criminal legal processes stifle that complex answer. Instead they coerce defendants into expressing a profoundly simple narrative: crime is solely individual choice to do wrong.  This forced narrative finds defendants during a plea colloquy standing up in court saying that they are pleading guilty because they are guilty and for no other reason.  A defendant who goes off-script to tell a story about childhood trauma or being a victim of repeated violence runs the risk that the judge will refuse to accept the guilty plea and punish them after trial in sentencing for refusing to say that they alone are to blame.  That same narrative of individual choice to do wrong plays out throughout the criminal process.

Coercing defendants to tell a story that is not their own further disenfranchises defendants and creates a damaged public understanding of crime. It hides our own societal failings and pretends that threating ever-harsher punishment will keep us safe — prioritizing a cheap illusion of safety over actual safety.  If crime is driven at least in significant part by unaddressed trauma and poverty, better mental health care and an expanded social safety net could better promote public safety than increased threats of cages — a core abolitionist claim.  And while prisons keep some of us temporarily safe by incapacitating those convicted of crimes, they are sites of great violence and little safety — a dynamic that then undermines safety outside the prison walls.  Instead of figuring out how to be safer we simply pretend that we’re doing our level best by mass incarcerating our citizenry and pressuring defendants to embrace our narrative while we stifle counternarratives.

First plea to manslaughter brings 15-year sentence for NY corrections officer involved in brutal fatal beating of prisoner

I briefly flagged in this post this past December some reporting on the horrific video of multiple guards assaulting prisoner Robert Brooks, who was fatally beaten while handcuffed at Marcy Correctional Facility in Oneida, New York.  Now, as reported in this New York Times article, one of the ten officers involved has pleaded guilty with a fixed sentencing outcome:

One of the 10 corrections officers charged in connection with the vicious beating death of a prisoner in central New York last year pleaded guilty to first-degree manslaughter on Monday. The officer, Christopher Walrath, 37, agreed to a plea deal offered by the prosecution, under which he will spend 15 years in prison and receive five years of post-release supervision.

He is the first officer to take a plea deal in connection with the killing of the prisoner, Robert Brooks, 43, who was beaten to death in December at Marcy Correctional Facility, a state prison in Marcy, N.Y., near Utica.... During an appearance Monday morning before a judge in Oneida County Court, Mr. Walrath confirmed that he improperly left his post and joined the attack on Mr. Brooks in three separate areas of the prison. He said that he beat him in the groin and placed him in a chokehold, both acts that are prohibited by departmental guidelines.

Mr. Brooks was declared dead at a hospital in Utica the day after the beating. William J. Fitzpatrick, the Onondaga County district attorney and the special prosecutor in the case, told reporters on Monday that the attack on Mr. Brooks, who had arrived at the prison just 30 minutes earlier, appeared to have been a sort of violent initiation into life at Marcy Correctional Facility. He called the attack a “welcome to Marcy,” and said it was “emblematic of the problems here and throughout the system.”

Mr. Fitzpatrick said he would continue to prosecute the other nine officers, who have been charged with a range of crimes, including murder, manslaughter and tampering with evidence.... “Nothing in his story exonerates the other defendants,” Mr. Fitzpatrick said of Mr. Walrath after the hearing....

The attack was recorded by body cameras worn by four Marcy officers. Footage from the cameras, which was made public by New York’s attorney general, Letitia James, captured the beating in disturbing detail. The video showed officers wearing boots kicking and punching a shackled Mr. Brooks in the groin and chest, choking him, and pinning him onto an infirmary examination table while they punched him. In the footage, his face is covered in blood and his body appears to be limp....

Mr. Brooks was serving a 12-year sentence for first-degree assault at the time of his death. He had pleaded guilty in 2017 in the stabbing of a former girlfriend in Monroe County, according to court documents and prison records.

Based on my understanding of New York law, Walrath's determinate 15-year sentence for first-degree manslaughter could lead to release in less than 13 years based on good-time credit. Walrath plea lead to the dropping of a second-degree murder charge, which under New York law is subject to a sentence ranging from 15 years to life-with-parole after 25 years.

This local article details the criminal charges against the other nine defendants charged in this case.  It will be interesting to see if a number of other pleas may soon follow and whether they also come with (comparable?) fixed sentencing terms.

Urging follow up to the First Step Act's "monumental success"

Timothy Head has this new commentary under the headline "Trump’s First Step Act Was a Monumental Success. His New Administration Has a Chance to Build On It." I recommend the full piece, and here are excerpts (with links from the original):

The First Step Act of 2018 remains one of President Trump’s most important legacies from his first term.  It has been a tremendous success by virtually any measure, and it’s part of a critical but underserved area of legislative reform. What’s more, it was bipartisan and remains extraordinarily popular.

Polling indicates that most Americans recognize our criminal justice system needs reform — perhaps because Americans also recognize that the success or failure of our criminal justice system has direct implications for them personally.  A striking 81% of likely voters in 2024 said they’d support reforms to the criminal justice system, with the numbers almost equally high across political affiliations. More than three-quarters of Republicans signaled support.  Upwards of 80% of Democrats and Independents did as well.

That’s because Americans understand that a functioning criminal justice system has little to do with ideology. It’s about ensuring the institutions we rely on to keep us safe, free, and flourishing do what they were originally created to do.

Continuing to refine and modernize our justice system not only offers Trump a widely-supported opportunity to better the nation; it’s also a chance for him to further cement his legacy as a transformational reformer of American government.

There’s already a promising roster of legislation filed in Congress that would serve as a worthy follow-up to President Trump’s successes in 2018.  Take the Federal Prison Oversight Act, the Clean Slate Act, and the Safer Supervision Act as examples.  All three would serve as crucial steps toward lasting, system-level reform of our criminal justice system.

An official submission and a terrific summary of the USSC's 2025 guideline amendments

As detailed in this post a few weeks ago, the US Sentencing Commission voted to submit to Congress a set of notable new amendments to the US sentencing guidelines, policy statements, and commentary.  Last week, the Commission formally posted here the official text of the amendments that were officially submitted to Congress on April 30, 2025 (and will become effective on November 1, 2025 absent congressional action). 

While the "reader friendly" version of these 2025 amendments runs 682 pages, the "official" text clocks in at (only!) 162 pages.  Thankfully, Prof Sam Merchant writing over at CrimProf Blog has produced this terrific new post titled "Summary of the U.S. Sentencing Commission’s 2025 Guideline Amendments."  I cannot readily summarize this summary except to note that it provides "a concise 'TL;DR' table for busy professors and practitioners, followed by a more detailed summary."  I also can praise Sam for referencing some of my favorite commentators with their takes on this amendment cycle (specifically, this episode of Set for Sentencing and also Jonathan Wroblewski's work at the Sentencing Matters Substack titled, Did the Sentencing Commission Just Make the Guidelines Even Worse?). 

"Tonry's Blueprint for the Comparative Study of Sentencing Law and Policy"

The title of this post is the title of this new essay authored by Kevin Reitz now available via SSRN. Here is its abstract:

This essay explores Michael Tonry's treatment of sentencing law and policy within the U.S. as an inherently comparative project.  The essay draws from Tonry's ''early period'' in comparative sentencing from the late 1970s to the middle 1990s, when his writing was largely U.S.-centric, focued on quickly changing conditions in dozens of states and the federal system.  Tonry classified the several models of ''sentencing reform'' that were being tried across the country, drew contrasts in the legal architectures of the new systems, collected data and evaluation research for as many states as possible, and treated the reform-active states as ''laboratories'' whose experiments could be evaluated for the benefit of other jurisdictions.  The essay examines the importance of this body of work and illustrates the impact it has had on research and policy communities over several decades.  In addition, the essay suggests that ''Tonry's blueprint'' holds great value for future researchers in comparative criminal justice policy.

Prison Policy Initiative tracking "how the Trump administration is making the criminal legal system worse"

In this post yesterday, I noted that I had not been able to find analyses looking closely at all of the Trump Administration's actions in the criminal justice enforcement and sentencing space over its first 100 days, and I suggested doing so would be challenging because there had been so many dynamics developments in this arena. But today I see that the folks at the Prison Policy Initiative now have this detailed new resource purporting to track "how the Trump administration is making the criminal legal system worse."  The resource is quite extensive, has lots of helpful links, and gets started this way:

The American criminal legal system has always been terrible, but what has happened in recent months is different.  It is in a new kind of crisis.  Since taking office, the Trump administration has taken actions to eviscerate due process and the rule of law, make prison and jail conditions worse, expand the use of extreme sentences and harsh law enforcement tactics, eliminate oversight, undermine solutions that reduce incarceration and make communities safer, and much more.

When examined individually, these actions are troubling, but the true nature of the crisis is only clear when these actions are viewed in their entirety.  On this page, we are tracking the steps that the Trump administration is taking to make the criminal legal system in America harsher, less effective, and even more unfair.

It is important to note, the federal government directly controls only a relatively small slice of the carceral system in America.  So while it can’t set explicit policy that impacts most prisons, jails, and law enforcement, the Trump administration is using its bully pulpit and control over federal spending to coerce state and local governments into making their criminal legal systems bigger and even more brutal.

Additionally, because we’re not experts on immigration and policing, we have intentionally chosen not to list all of the actions by the administration in these areas.  Instead, we have curated a list of organizations and information sources that we recommend you visit if you would like to learn more about immigration and policing.

It is impossible to list everything the administration has done in this regard, but if you believe we have overlooked something that should be included, please let us know.

"Defense Lawyers and the Separation of Powers"

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

Debates over the separation of powers in criminal law ignore defense lawyers.  Prosecutors, judges, and legislators are the main focus.  Scholars analyze the distribution of power between these three actors, as well as how they check — or fail to check — each other’s authority. Meanwhile, scholars treat defense lawyers as merely representatives of their clients, not as government actors or policymakers.  But this is an incomplete view.  Modern defense lawyers exercise distinctive powers in the criminal justice system.  They are also largely institutional insiders appointed by the state. One cannot understand the contours of power in an American criminal courthouse without knowing how its indigent defense system works.

This Article brings defense lawyers into the criminal law separation-of-powers debate.  It proposes that we should understand defense counsel as exercising a sui generis “defense power,” distinct from the traditional categories of legislative, judicial, and executive power.  It then uses that more expansive view to develop three arguments: (1) Competent and assertive defense lawyers are necessary to, though not sufficient for, a robust dynamic of checks and balances in the criminal justice system.  Effective defense lawyers help to limit prosecutorial and judicial power.  That, in turn, protects important liberty interests and the rule of law. (2) Defense lawyers’ effectiveness as a check depends, in significant part, on separation of powers questions.  In particular, the political independence of defense lawyers is crucial.  When defense lawyers are captured by other system actors, like judges or county governments, their ability to vigorously defend their clients is compromised. An effective defense power is thus largely contingent on institutional design — e.g. the choice between contract counsel, direct judicial appointment, a public defender’s office, and other models.  (3) Defense lawyers legitimately exercise collective power in the criminal justice system. They do so in a variety of ways — through litigation, work stoppage, vetoing judges, and other strategies.  Such collective action is properly viewed in traditional Madisonian terms.  Defense lawyers pursue their interests, and the interests of their clients, using their leverage within the system to counterbalance other actors.

Notable sentencing opinion discussing the "state of appellate review of district court sentencing"

A kind reader made sure I did not miss a notable recent federal opinion authored by US District Judge Joseph Goodwin US v. Shields, No. 2:21-cr-00268 (SD WVa April 24, 2025) (available for download below). The 13-page opinion is a must-read in full, and this paragraph from the first part of the opinion suggests the value of broad readership:

Today, I resentenced Mr. Shields pursuant to the Fourth Circuit’s mandate. I now write in conjunction with that resentencing to consider the state of appellate review of district court sentencing. It is the duty of the district court to follow appellate court orders in sure fashion and explain their actions and reactions. The public greatly benefits from courts acting in such a manner, clearly communicating what the law is and how it is applied.

I am disinclined to try to summarize what follows, but these paragraphs (with lots of meaty footnotes removed) provide a flavor of the opinion's themes:

Fast forward twenty years, and Justice Scalia’s fears of “havoc on federal district and appellate courts” have come to pass.6 Booker, 543 U.S. at 312–13. District courts, exercising the autonomy restored in Booker, remain subject to the appellate review Booker also promised. Carissa Byrne Hessick & F. Andrew Hessick, Appellate Review of Sentencing Decisions, 60 Ala. L. Rev. 1, 28–36 (2008) (suggesting that Gall, Rita, and Kimbrough put the district and appellate courts on a collision course beyond the ordinary understanding of appellate review).  That appellate review has created its own “Appellate Guidelines” — interpreting the advisory Guidelines and binding on sentencing judges.

In the search for “reasonable” sentences, the appellate courts have also undermined Congress’s intent to standardize sentencing practices.  To some, the “courts of appeals have vociferously fought” Booker.  Alison Siegler, Rebellion: The Courts of Appeals’ Latest Anti-Booker Backlash, 82. U. Chi. L. Rev. 201, 202 (2015). Sometimes that has taken the form of an “inconsistent . . . development of procedural review” and an “even less clearly defined” standard of substantive reasonableness.  Morgan Yates, Note, Truth or Unintended Consequences: Reining in Appellate Court Action in the Absence of a Government Appeal, 82 U. Chi. L. Rev. 1705, 1710 (2015).

Other times the appellate courts seek out procedural snags “when they wish to reverse sentences based on substance, warping the procedural inquiry.” Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951, 961 (2014).  Still, some do not place blame entirely on the circuit courts who must “apply all of these contradictory sentencing goals in every case.”  Craig D. Rust, Note, When “Reasonableness” is not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions After Rita, Gall, and Kimbrough, 26 Touro L. Rev. 75, 102 (2010).

Without a doubt, Justice Scalia’s fears came true.  The appellate courts — in an effort to enforce Supreme Court sentencing jurisprudence — have developed their own requirements, differently, across the country.

Download Sheilds Opinion on Resentencing (SDWV 2025)

Alabama completed in second execution in 2025

As reported in this AP article, an "Alabama man who dropped his appeals and said he deserved to die for a 2010 rape and murder was executed Thursday evening, using his final words to apologize to the woman he killed."  Here is more:

James Osgood, 55, was pronounced dead at 6:35 p.m. following a three-drug injection at a south Alabama prison, authorities said. A jury in 2014 convicted Osgood of capital murder in the death of Tracy Lynn Brown in Chilton County. Prosecutors said Osgood cut her throat after he and his girlfriend sexually assaulted her....

Brown, 44, was found dead in her home on Oct. 23, 2010, after her employer became concerned when she did not show up for work.

Prosecutors said Osgood admitted to police that he and his girlfriend sexually assaulted Brown after discussing how they had shared fantasies about kidnapping and torturing someone. The pair forced their victim to perform sex acts at gunpoint. They said Osgood then killed Brown by cutting her throat. His girlfriend, who was Brown’s cousin, was sentenced to life in prison.

The jury in 2014 took 40 minutes to convict him and unanimously recommended a death sentence. His initial death sentence was thrown out by an appeals court. At resentencing in 2018, Osgood asked for another death sentence, saying he didn’t want the families to endure another hearing.

Alabama Corrections Commissioner John Hamm said the victim’s family members witnessed the execution in a separate viewing room. They chose not to make a statement to the media, he said. Gov. Kay Ivey issued a statement, calling the killing “premeditated, gruesome and disturbing.”...

Osgood told AP last week he had dropped his appeals because he was guilty and thought his execution should go forward. “I’m a firm believer in — like I said in court — an eye for an eye, a tooth for a tooth. I took a life, so mine was forfeited. I don’t believe in sitting here and wasting everybody’s time and everybody’s money,” Osgood said.

The Death Penalty Information Center reported last year that 165 of the 1,650 people executed since 1977 had asked to be put to death.... The execution was the second in Alabama this year and the 14th in the nation overall.

Sentenced exactly to what federal prosecutors requested, former US Rep George Santos given 87 months in prison

As reported in this AP piece, "[d]isgraced former U.S. Rep. George Santos, who lied about his life story and defrauded donors, was sentenced Friday to over seven years in prison, sobbing as he heard his punishment." Here is more:

Santos, who pleaded guilty last summer to federal wire fraud and aggravated identity theft, appealed for mercy, telling a court through tears that he was “humbled” and “chastised” and realized he had betrayed his constituents’ trust. “I offer my deepest apologies,” he said, adding: “I cannot rewrite the past, but I can control the road ahead.”

U.S. District Court Judge Joanna Seybert evidently wasn’t convinced. “Where is your remorse? Where do I see it?” she asked as she sentenced him to 87 months behind bars. She said the former politician appeared to feel that “it’s always someone else’s fault.”

The New York Republican served in Congress barely a year before his House colleagues ousted him in 2023. He admitted to deceiving donors and stealing the identities of nearly a dozen people, including his family members, to fund his winning campaign. As part of a plea deal, Santos has agreed to pay roughly $580,000 in penalties....

The 36-year-old Santos is due to report to prison July 25. He didn’t respond to reporters’ shouted questions outside the courthouse, but he told The Associated Press on Thursday that he was resigned to his fate. “I’m doing as well as any human being would be doing given the circumstances,” Santos wrote in a text message, adding that he was “ready to face the music.”

Prosecutors sought the 87-month sentence, questioning Santos’ remorse in light of his recent social media posts casting himself as a victim of prosecutorial overreach. Prosecutor Ryan Harris told the judge that some of Santos’ victims were “extremely vulnerable,” including a woman with brain damage and two octogenarian men who have dementia. Santos has said in recent days that he has no intention of paying back victims promptly, Harris noted.

“People think of this as a victimless crime because it’s about money. There are many victims in this crime,” added New York Labor Commissioner Roberta Reardon. She addressed the court as a victim because, before running for office, Santos collected unemployment benefits while actually working for a Florida company. Once in Congress, he co-sponsored legislation intended to root out unemployment fraud.

Santos’ lawyers had called for a two-year prison stint, the mandatory minimum sentence for aggravated identity theft. Defense lawyer Andrew Mancilla portrayed the ex-congressman as a troubled figure forged by adversity. Santos grew up in a “broken house” and was subjected to bullying throughout his life, the attorney said....

Santos was elected in 2022, flipping a wealthy district representing parts of Queens and Long Island for the GOP. Soon after, it was revealed that the political unknown had fabricated much of his life story, painting himself as a successful business owner who worked at prestigious Wall Street firms and held a valuable real estate portfolio. In reality, Santos was struggling financially and even faced eviction. The revelations led to congressional and criminal inquiries into how he had funded his campaign. “He told lie after lie until it caught up with him — until we caught up with him and exposed him for what he truly was: an opportunist and a fraud,” Nassau County District Attorney Anne Donnelly, a Republican, said outside court Friday. Her office also investigated Santos.

Prior related posts:

• You be the federal judge: what sentence for former US Rep George Santos after his plea to fraud and identity theft?
• In sentencing memos, feds advocate for 7+ years in prison while George Santos' team urges statutory minimum of 2 years
• Spicy supplemental submissions as federal sentencing for George Santos approaches

Prez Trump grants another pardon to another person facing federal sentencing for fraud

As reported in this AP article, "President Donald Trump has pardoned a Nevada Republican politician who was awaiting sentencing on federal charges that she used money meant for a statue honoring a slain police officer for personal costs, including plastic surgery." Here is more:

Michele Fiore, a former Las Vegas city councilwoman and state lawmaker who ran unsuccessfully in 2022 for state treasurer, was found guilty in October of six counts of federal wire fraud and one count of conspiracy to commit wire fraud. She was out of custody ahead of her sentencing, which had been scheduled for next month.

In a lengthy statement Thursday on Facebook, the loyal Trump supporter expressed gratitude to the president while also accusing the U.S. government and “select media outlets” of a broad, decade-long conspiracy to “target and dismantle” her life. The White House confirmed Fiore had been pardoned but did not comment on the president’s decision.

The pardon, issued Wednesday, comes less than a week after Fiore lost a bid for a new trial.  She had been facing the possibility of decades in prison.  Federal prosecutors said at trial that Fiore, 54, had raised more than $70,000 for the statue of a Las Vegas police officer who was fatally shot in 2014 in the line of duty, but had instead spent some of it on cosmetic surgery, rent and her daughter’s wedding.  “Michele Fiore used a tragedy to line her pockets,” federal prosecutor Dahoud Askar said....

Fiore, who does not have a law degree, was appointed as a judge in deep-red Nye County in 2022 shortly after she lost her campaign for state treasurer.  She was elected last June to complete the unexpired term of a judge who died but had been suspended without pay amid her legal troubles.... In her statement Thursday, Fiore also said she plans to return to the bench next week.  Nye County said it is awaiting an update on Fiore’s current suspension from the state Commission on Judicial Discipline, which told The Associated Press in an email that it was aware that Fiore had been pardoned but that it didn’t have further comment on her situation.

As highlighted in posts here and here from last month, it seems that persons convicted of various white-collar offenses are now those most likely to get the benefit of Prez Trump's clemency pen.  This list at the Justice Depatment of "Clemency Grants by President Donald J. Trump (2025-Present)," details that the last dozen or so grants are all of white-collar defendants.  (In addition, that list includes an early March communtation of the sentences Jean Pinkard who was apparently convicted of opioid distributions and whose commulation received little press beyond small converage in this story.  I would guess that "Pardon Czar" Alice Marie Johnson may have had a role in the Pinkard commutation, but likely not all the more recent fraud grants.)

"Trump's Executions, Biden's Commutations, and Federalism"

The title of this post is the title of this new article authored by Jonah Horwitz which is now available on SSRN (and is forthcoming in the Federal Sentencing Reporter). Here is its abstract:

During his first term, President Trump executed thirteen federal prisoners.  At the end of his own presidency, Joe Biden commuted the death sentences of thirty-seven federal inmates and reduced them to life in prison without the possibility of parole.  Most commentators have focused on how President Trump's action reflects his support for the death penalty and President Biden's shows his opposition to it.  But the better question to ask is what the contrast says about the federal death penalty in particular.

I argue that the Biden commutations (and in particular the nature of the three death sentences that were left untouched) reflect a coherent conception of the federal death penalty as being limited to terrorism and civil-rights murders, rare cases in which there is a compelling national stake in an execution.  By contrast, the Trump executions represent a model in which the U.S. government uses the death penalty so indiscriminately that it becomes divorced from the federalist foundations of the criminal-justice system.  This juxtaposition has fruitful implications for the broader ongoing debate about the federal governments' role in punishing crime as compared to the states.

Deepening circuit splits, divided Sixth Circuit panel decides to "look beyond" statutory text to rewrite compassionate release limits

I noted in this post back in October that a Sixth Circuit panel heard oral argument to consider its precedent limiting grounds for compassionate release in light of the US Sentencing Commission guideline amendment allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i).  In that post, I explained why I thought this issue of statutory interpretation should be fairly straight forward for any and all true textualists.  And early this week, we got a lengthy split panel ruling in the case from the Sixth Circuit via US v. Bricker, No. 24-3286 (6th Cir. April 22, 2025) (available here).  That ruling provides for me another reminder that courts can and often will ignore textualism principles when it leads to a policy outcome that they dislike.

I won't restate the textualist points made in this prior post, but consider this sentence from Bricker in which the Sixth Circuit panel majority tips its hand: "[Our prior precedent] McCall did look beyond the words 'extraordinary and compelling' to reach its conclusion, but that was in keeping with basic principles of statutory interpretation to not look at text in isolation to discern its unambiguous meaning."  When courts contend that they need to "look beyond" the "text in isolation" in service to "basic principles," they are revealing that the actual text does not support their desired policy outcome and thus they need to "look beyond" what Congress actually enacted in order to "reach [a desired, non-textual] conclusion."   (To its credit, the Sixth Circuit panel does not assert that its ruling furthers the "will of Congress" like the Third Circuit did in Rutherford last year, but that may because this panel ruling seems to extend much further and so cannot even be justified on those terms.) 

There are lots of other textualist problems with the Bricker opinion (eg, it wrongly frames the the Commission's policy statement as "effectively giving retroactive effect to the nonretroactive change to sentencing law"), but the majority opinion overall serves as a telling example of how courts can get to non-textualist outcomes they prefer.  In so doing, the Bricker ruling also raises a bunch of new questions (eg, Bricker seems to be eager to suggest that there are no compassionate release grounds that can be used to reduce "statutory mandatory minimum sentences"), highlighting that that all sort of new policy outcomes can be pursued by non-textualist courts who are ready, eager and willing to "look beyond" the actual text enacted by Congress.

Judge Stranch has a lengthy dissent in Bricker, which gets started this way:

 The majority opinion misapprehends recent Supreme Court precedent on administrative law, misconstrues this court’s opinion in United States v. McCall, 56 F.4th 1048 (6th Cir. 2022) (en banc), and ignores the plain language of several statutes to read constraints into a statutory scheme where none exist. Because these cases and statutes instead support holding that USSG § 1B1.13(b)(6) is a valid and binding exercise of the Commission’s delegated authority, I respectfully dissent.  

As suggested above, I read the panel majority in Bricker to be inventing much broader non-textual limits on compassionate release than did the Third Circuit in US v. Rutherford, No. 23-1904 (3d Cir. Nov. 1, 2024) (available here).  That ruling is the subject of a pending cert petition, and Bricker surely increases the odds that cert on this issue will be everntually granted.  But the earliest we are likely to see a grant may be months from now, meaning the earliest we might hope/expect a SCOTUS resolution would likely be Spring 2026.  And I am quite unsure whether congressional text or judicial policy preferences would ultimately prevail on this matter at SCOTUS. 

Former Judge Mark Bennett reviews his "Half Century Traversing the Arc of Federal Sentencing"

A helpful colleague made sure I saw this new article published recently in the latest issue of the ABA magazine Litigation authored by former US District Judge Maek Bennett.  Judge Bennett's opinions and articles on various federal sentencing topics have appeared in this space many times through the years, and it is nice to see how he wrapped up lots of experiences and insights in this relatively short ABA article, titled "My Half Century Traversing the Arc of Federal Sentencing." The piece merits a read in full, and here are its starting paragraphs: 

In the more than 50 years since I graduated from law school, there is no area of federal law that has affected more lives with more dramatic pendulum swings than federal sentencing.  I am now a retired federal judge who has spent nearly a third of my life populating the Federal Bureau of Prisons by sentencing more than 4,000 offenders, in five federal districts spanning the two districts in Iowa to the District of Arizona, the District of North Dakota, and the farthest reach of the federal courts in the District of the Northern Mariana Islands in Saipan.

Flash-back to the summer of 1975: having started my own law firm after graduating from law school, I was involved in my first federal sentencing as a novice but eager defense lawyer. The defendant was to be sentenced by a conservative but fair federal district judge.  The defendant was a low-level small-time nonviolent, addict drug dealer with no prior criminal record other than two aging minor misdemeanors. Despite my lack of experience, he was sentenced to three years of probation and drug treatment.  Back then, probation was common for nonviolent first offenders.  Had an identical defendant appeared before me as a federal district judge, and many hundreds of them did, the defendant would have received a mandatory minimum 120-month or 240-month sentence, or possibly even more, depending on the drug quantity and aggravating factors.  This article chronicles the jaw-dropping arc of federal sentencing and the federal sentencing guidelines that help explain, but do not justify, this staggering disparity.

Check out Villanova Law's "Criminal Sentencing Colloquium" later this week

I flagged last week that this coming Friday (April 25) brings this exciting and distinctive event for sentencing fans titled "Criminal Sentencing Colloquium: Developments in Civilian and Military Law" at the Villanova University Charles Widger School of Law.  I am quite honored and thrilled to be a speaking on one of the panels at the event focused on "United States v. Booker: Twenty Years Later."  And here, again, is how the full event is described on the event page:

This colloquium will examine crucial developments in sentencing law across two distinct domains: federal civilian sentencing jurisprudence and military justice reform. This event will bring together leading scholars and practitioners to explore these parallel yet distinct evolutionary paths in American sentencing law. It is a particularly opportune moment to explore these issues as it has been 20 years since the US Supreme Court’s landmark decision in United States v. Booker and just over one year since the military justice “sentencing parameters” became effective pursuant to the National Defense Authorization Act for Fiscal Year 2022.

In addition to our other distinguished panelists, we are honored to welcome Judge Stephanos Bibas of the United States Court of Appeals for the Third Circuit.

This event has been approved for 4 hours of substantive CLE credits by the Pennsylvania Continuing Legal Education Board. This event will accommodate both in-person and virtual attendees. Registration is required. Space is limited.

Co-sponsored by the Federal Sentencing Reporter and the National Institute of Military Justice.

Though I will be travelling to participate in the event in-person, folks not in the Villinova area can register to attend by Zoom.    

"The Role of Moral Panic in Motivating Public Support for Punitive Drug Sentencing"

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

Feelings of social and moral outrage, including moral panic, toward those who commit drug crimes have been speculated as a key reason why some Americans have continued to support punitive sentencing approaches for drug offenses, even when faced with evidence that punitive drug sentencing laws have not achieved meaningful reductions in recidivism or use of illegal drugs.  As such, examining how feelings of moral panic may underlie support for punitive sentencing should help us better understand the roots of public outrage toward these types of offenses, as well as how to best promote public support for evidence-based policies in sentencing reform efforts.

Drawing from this background, this study uses a national sample of U.S. adults (N = 1,569) to examine if and how public feelings of moral panic (concern, hostility, consensus, disproportionality, volatility) toward different drug crimes motivate public support for harsher sentencing practices.  Mediation results suggest that participants showing more support for harsh punishment and sentencing strategies for serious trafficking of serious drugs were motivated by heightened feelings of concern, hostility, and volatility.  Further, participants showing less support for harsh punishment, as well as the use of mandatory minimums and truth-in-sentencing laws, for marijuana possession were motivated by fewer feelings of concern, hostility, consensus, volatility, and disproportionality.  Similarly, participants showing less support for harsh punishment, as well as the use of mandatory minimums and truth-in-sentencing laws, for minor trafficking of marijuana were motivated by fewer feelings of concern, hostility, and volatility.  Respondents also reported significantly fewer feelings of concern, hostility, and consensus toward opioid possession.  This study suggests that moral panic helps shape public support for harsh sentencing strategies for certain drug crimes, and this has implications for understanding and addressing support for such policies.

Has the US Sentencing Commisison's acquitted conduct amendment had much of an impact (and just how might we tell)?

Almost exactly one year ago (as noted in this post), the US Sentencing Commission voted to amend the US Sentencing Guidelines to "exclude federally acquitted conduct from the scope of relevant conduct considered under the sentencing guidelines, while not abrogating a court’s authority under 18 U.S.C. § 3661."   (This specific account of the amendment comes from this helpful "amendment in brief" document produced by the Commission.)  The amendment, which formally became law on November 1, 2024, means that "federally acquitted conduct" may no longer be used in the calculation of guideline sentencing ranges, but judges still have broad discretionary authority to consider such conduct when determining what exact sentence to impose on a defendant.

The question in the title of this post is prompted not only by the anniversary of the USSC's unanimous vote, but also by Billy Binion's terrific article in the new issue of Reason magazine titled "Not Guilty but Punished Anyway: Sentencing defendants based on acquitted conduct violates basic notions of justice."  I recommend the full article for its effective review of the history and intricacies of acquitted conduct sentencing, as well as its emphasis on the limited legal consequences of the Commission's guideline amendment.  As the article explains, the guideline amendment is just a policy change to the operation of now-advisory guidelines, and so legally has much less impact than might a constitutional ruling (or even congressional enactment) that could place more robust restrictions on the consideration of acquitted conduct at sentencing.  

That all said, "just" the exclusion of federally acquitted conduct from guideline calculations still seems quite important both symbolically and practically.  Of course, USSC data indicate that only a couple hundred defendants are sentenced in federal court after being acquitted on some charges, so it is possible to believe that the USSC's acquitted conduct amendment is likley only to impact (a subset of) the relatively few federal defendants who go to trial and get a split verdict from a jury.  And yet, the long-standing prospect of acquitted conduct guideline enhancements surely has long influenced, at least in some set of cases, how federal defendants, defense attorneys and prosecutors approached plea negotiations.  Even though federal judges still have discretion to consider acquitted conduct at sentencing, might some plea deals in some cases be in some ways influenced by the new reality that acquitted conduct cannot and will not be used in guideline calculations (while, of course, uncharged and dismissed conduct certainly still can and will be so used)?   But just how might we tell -- especially within a federal system of pleas that, as Professor Sam Merchant explains in his article in the latest issue of of the Federal Sentencing Reporter, involves a "framework of fictions." 

In this post a few years ago about acquitted conduct practices, I asked "Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing?".  I have still never gotten a satisfying (or even unsatisfying) answer to this question, though the Reason article suggests some might get a satisfying outcome if the new acquitted conduct amendment were to be made retroactive.  And so I will close this post with that article's closing paragraphs:

If neither Congress nor the Supreme Court intervenes, the sentencing commission's amendment will remain the best hope for critics of acquitted-conduct sentencing. But in addition to the question of whether judges will listen, it remains unclear whether the commission will decide that the amendment should apply retroactively, which would allow resentencing of previously convicted prisoners. Retroactivity could be a lifeline for many defendants—including McClinton, who has now been behind bars longer than the maximum the guidelines recommended based on his convictions.

Jessie Ailsworth was released from federal custody in 2019, but he is still paying close attention to this debate. "I stood with my lawyer and heard 'not guilty' over and over," he told the commission at a March 2024 hearing. His 1996 trial on drug conspiracy charges ended with 28 acquittals and seven convictions: three counts of possessing crack with the intent to sell it, three counts of food stamp fraud, and one count of using a communication facility to distribute drugs. But even though the jury found him not guilty of the most serious charges, the judge relied on those charges in sentencing him to 30 years in prison.

"I learned responsibility, which took some time," Ailsworth explained. "But the hardest lesson I've learned is the lesson I learned at sentencing….Not guilty verdicts are meaningless at sentencing if you have even one guilty verdict. In a system based on justice and fairness, where is the fairness in that?"

It's a question many similarly situated defendants, whose stories often go unnoticed, likely have found themselves asking. It is also a question that jurors, whose mandatory service purportedly serves as a check on the government, may continue to ask themselves.

"Not guilty means not guilty," Judge Reeves said as he unveiled the amendment aimed at curtailing acquitted-conduct sentencing. Time will tell if the government makes good on that promise.

Recent related posts (of hundreds on acquitted conduct over 20+ years):

• US Sentencing Commission votes to promulgate guideline amendment to limit use of acquitted conduct in guideline calculations 
• "Congress Must Abolish Acquitted Conduct Sentencing"
• Once again, a November starts, the new Guidelines are here, the new Guidelines are here!! 
• "New Acquitted Conduct Guideline: An Analysis"

"Sentencing Immigrants"

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

The federal government has created a separate and unequal sentencing system for undocumented immigrants.  Over a third of all federal felony cases involve immigrants charged with the crime of entering the United States.  With Donald Trump returning to the White House, that number will increase significantly.  Under the Federal Sentencing Guidelines, defendants in these cases have their criminal history counted against them twice.  U.S. citizen defendants only have their criminal history counted once.  This results in immigrants suffering significantly larger recidivist enhancements for the exact same prior convictions.  And these double enhancements are determined in a confusing and irrational manner, with multi-year swings turning on minor details like the timing of a deportation order or probation violation. Furthermore, under the First Step Act, undocumented defendants are barred from in-custody programs that can reduce sentences by up to one-third.  They therefore serve a significantly higher portion of their prison terms than do U.S. citizens.

This article details how federal sentencing law explicitly discriminates against undocumented immigrants.  It traces the history of their unequal treatment over the last three decades.  It also proposes a framework for judges to remedy this discrimination: sentencing constitutionalism.  When judges make discretionary sentencing decisions, they can and should enforce constitutional anti-discrimination principles to a greater degree than they do while reviewing legislation.  In keeping with this principle, judges should decline to follow the Sentencing Guidelines in double-counting illegal reentry defendants’ past convictions.  They should also reduce immigrants’ sentences to account for the fact that they serve a higher portion of their prison terms than do citizens.  Equal Protection doctrine erects numerous obstacles to challenging these discriminatory rules.  But judges’ discretionary sentencing decisions need not be constrained by the deference principles built into formal doctrine.  They can and should adhere to a higher standard of equality.  The principle of sentencing constitutionalism is illustrated by federal judges’ widespread rejection of federal crack cocaine sentencing guidelines.  Like crack cocaine sentencing, reentry sentencing is racially discriminatory in design and effect.  And, like they have with crack cocaine sentencing, judges should work to counteract that discrimination.

Effective coverage from Bolts of juvenile and young adult sentencing developments in two states

Regular readers know that I consider Bolts as must-read for many reasons, and particularly for its effective coverage of a range of state and local criminal justice issues.  In the last couple weeks, Bolts has covered notable sentencing stories involving younger offenders from a couple of states:

From Michigan, "Another State Restricts Life Sentences for Young Adults: Michigan’s supreme court created new protections against life sentences for people up to 20, pushing the line for who gets second chances beyond age 18."  An excerpt:

This decision also underscores this supreme court’s progressive approach to sentencing issues, as Democratic justices have banded together to deliver repeat wins for defendants and incarcerated people. In many of these rulings, including last week’s, they’ve stressed language in Michigan’s state constitution that bans “cruel or unusual punishments,” a subtle difference from the federal ban on “cruel and unusual punishments” that makes it easier for litigants to argue that their rights have been violated. (Other state constitutions have similar language.)

From North Carolina, "In North Carolina, Juvenile Lifers See a Pathway to Freedom: After the state’s previous governor granted clemency to people sentenced to life in prison as minors, others with juvenile life sentences are hoping the new administration also believes in second chances."

North Carolina’s Juvenile Sentence Review Board sprang from a broader attempt to address racial inequities in the criminal legal system in 2020, following George Floyd’s murder by police and the protests it sparked across the country.... 

The 12 people [former NC Gov. Roy] Cooper ultimately released from prison after their cases were reviewed by the JSRB were part of a broader focus on clemency in the final stretch of Cooper’s tenure.  During his eight years in office, Cooper issued 34 pardons and 43 commutations, including commuting 15 death sentences to life without parole in December, on his final day in office. 

That’s a marked increase from other 21st-century governors: Collectively, Cooper’s three predecessors granted clemency or commutations to only 32 people over a 16-year period. 

UPDATE: A helpful reader suggested that full stories around this post could and should include a recent ruling by the Supreme Court of North Carolina in State v. Tirado, No. 267PA21 (NC Jan. 31, 2025) (avaialble here).  This ruling rebuffed a teenage offender's argument that the North Carolina Constitution provides great limits on juvenile punishments than the Eighth Amendment, and the majority opinion for the Court starts this way:

In this case we consider whether the Court of Appeals denied merits review of defendant’s constitutional challenge to his consecutive sentences of life imprisonment without parole (life without parole) under Article I, Section 27 of the North Carolina Constitution.  The Court of Appeals comprehensively addressed all of defendant’s arguments, including his constitutional challenge.  Because federal courts have interpreted the Eighth Amendment to the United States Constitution to provide greater protections for juvenile offenders than our state constitution’s plain text affords, this Court locksteps its application of Article I, Section 27 with that of the Eighth Amendment to ensure that no citizen is afforded lesser rights.  Thus, the Court of Appeals did not need to separately consider defendant’s claim under the North Carolina Constitution.

Two recent federal circuit reversals highlight importance of sentencing explanations

In this post way back in 2005 just over a week after the Supreme Court's Booker ruling, I summarized a message sent out to federal district judges as saying "Always remember to show your work."  That long-ago post came to mind two decades later when I recently saw two distinct new federal circuit rulings in which panels reversed a sentence as procedurally unreasonable because of the sentencing court's failure to adequately explain its sentencing decision-making.  Here are the rulings and their introductions:

US v. Vázquez-Narvaez, No. 23-1963  (1st Cir. April 9, 2025) (available here):

Defendant Carlos Vázquez-Narvaez ("Vázquez") pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). For that offense, the probation office calculated a guideline sentencing range of fifty-one to sixty-three months of imprisonment and five years to life of supervised release.  Although the district court agreed that the guideline range had been correctly calculated, it sentenced Vázquez to time served -- twenty-one days -- and seven years of supervised release.  The government now appeals, arguing that this sentence is substantively unreasonable because it lacks a plausible sentencing rationale. Concluding that the district court did not adequately explain its basis for granting such an extraordinary downward variance, we vacate and remand for resentencing.

US v. Smith, No. 22-4338 (4th Cir. April 14, 2025) (available here):

Quamaine Donell Smith (“Appellant”) pled guilty to robbery and using/brandishing a firearm during and in relation to a crime of violence. In his written plea agreement, Appellant waived his right to appeal his sentence. The district court subsequently sentenced Appellant to 144 months of imprisonment.

On appeal, Appellant argues that his appeal waiver is invalid because the district court failed to properly conduct the plea hearing and because the appeal waiver was not knowing and voluntary. Therefore, Appellant urges us to vacate his sentence as procedurally unreasonable because the court failed to acknowledge his non-frivolous mitigation arguments or provide an explanation for the sentence.

We hold that Appellant’s appeal waiver was not knowingly and intelligently made and that enforcing the appeal waiver would result in a miscarriage of justice. Therefore, we vacate the sentence as procedurally unreasonable and remand for reassignment to a different district court judge for further proceedings.

In recent years, I tend not to blog much (or even follow closely) federal sentencing appeals because so much of reasonableness review turns more on factual specifics than on broader legal matters.  (I cannot recall seeing any academic articles on the topic for years and years.)  Still, I find it encouraging to see that reasonableness review is doing some work.   

"Cruel and Unusual Punishments and the Constitutional Status of the Idea of Progress"

The title of this post is the title of this new paper authored by R. George Wright and now available via SSRN. Here is its abstract:

More than three generations ago, the Supreme Court took Eighth Amendment jurisprudence on a distinctive path.  The 1958 case of Trop v. Dulles declared that the notion of Cruel and Unusual Punishments "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."  This Article carefully unpacks that language, with particular attention to relevant ideas of progress, and then addresses the current status of the Trop test in light of the Court's increasing attention to questions of text, history, tradition, and established precedent. 

"Criminal Sentencing Colloquium: Developments in Civilian and Military Law"

The title of this post is the title of this upcoming event, the 2025 Matthew J. Ryan Law and Public Policy Forum, scheduled for next Friday and presented by the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at the Villanova University Charles Widger School of Law.  Here is how the event described:

This colloquium will examine crucial developments in sentencing law across two distinct domains: federal civilian sentencing jurisprudence and military justice reform. This event will bring together leading scholars and practitioners to explore these parallel yet distinct evolutionary paths in American sentencing law. It is a particularly opportune moment to explore these issues as it has been 20 years since the US Supreme Court’s landmark decision in United States v. Booker and just over one year since the military justice “sentencing parameters” became effective pursuant to the National Defense Authorization Act for Fiscal Year 2022.

In addition to our other distinguished panelists, we are honored to welcome Judge Stephanos Bibas of the United States Court of Appeals for the Third Circuit.

This event has been approved for 4 hours of substantive CLE credits by the Pennsylvania Continuing Legal Education Board. This event will accommodate both in-person and virtual attendees. Registration is required. Space is limited.

Co-sponsored by the Federal Sentencing Reporter and the National Institute of Military Justice.

If one clicks through to the event page, one can see that I am among the least distinguished of the distinguished panelists.  And that is one of many reasons I am grateful and excited to be part of this interesting event. 

"Incentivizing Diversion"

The title of this post is the title of this new paper authored by Christina Miller and just posted on SSRN.  Here is its abstract:

Jill, living with addiction and arrested with heroin, appears before a judge the day after her arrest.  With the prosecutor’s agreement, the judge offers her entry into a treatment-based diversion program — a pathway that promises dismissal of the charge and no further court involvement.  Diversion programs are designed to offer accused individuals an alternative to prosecution and punishment, aiming to avoid probation, incarceration, and collateral consequences.  However, an analysis of state diversion statutes reveals structural flaws: burdensome requirements, limited protections of rights, and punitive measures that deter participation and undermine diversion’s potential.

By creating statutory diversion programs as a tool to conserve judicial resources, address the root causes of crime, and reduce recidivism, legislatures intended to avoid a formal finding of guilt, preserve opportunities for employment, housing, and benefits, and address racial and socioeconomic disparities arising from over-policing and prosecution of minor offenses.  Despite these goals, many diversion programs mirror traditional prosecution and punishment. Participants often face restrictive conditions, limited procedural rights, and harsh consequences for noncompliance — particularly if decisions about participation must be made immediately after arrest or arraignment.  Diversion can feel coercive and punitive, especially when individuals are required to waive constitutional rights or cannot reenter the program after a violation.  Some statutory schemes even penalize people for wanting to remain silent about past criminal acts.

These structural deficiencies make diversion unattractive to many accused persons, particularly those who distrust the criminal adjudicative and sentencing systems or need more time or support to comply with program requirements.  If diversion is to function as a meaningful alternative, legislatures must address these barriers and clearly differentiate diversion from traditional adjudication and sentencing.

This Article draws on a national analysis of diversion statutes to recommend four legislative reforms: (1) allowing individuals to assert pretrial rights while still pursuing diversion; (2) preserving Fifth Amendment protections throughout diversion proceedings; (3) extending the window in which the accused may opt into diversion; and (4) offering second chances after a violation.  Additional reforms — such as pre-arraignment diversion, automatic expungement or sealing, and procedural clarity — can further incentivize participation.

Part I traces the development of legislative diversion and its role in addressing the complex roots of criminal behavior while serving state interests.  Part II compares diversion and traditional adjudication and sentencing procedures and explores structural disincentives.  Part III proposes legislative strategies to improve diversion’s accessibility and effectiveness.  By removing statutory obstacles and enhancing procedural fairness, legislatures can transform diversion into a genuinely rehabilitative and restorative tool available to more persons by earning the trust of the people it is designed to serve.

"Did the Sentencing Commission Just Make the Guidelines Even Worse?"

I reported in this recent post that, on Friday afternoon, the US Sentencing Commission voted to promulgate a set of notable amendments to the US Sentencing Guidelines.  I am still working my way through the substance of the amendments that were promulgated and I hope to share various thoughts on them in the weeks ahead. 

But, as shown by the comments to my prior post, a number of folks are disappointed by what does not appear in the final amendments promulgated by the USSC.  In this amendment cycle, the Commission had discussed a number of other possible amendments that did not get voted upon last week, and Tom Root in the comments and in this posting laments particularly that reforms to the meth guidelines did not advance.  Tom also quotes at length from this new post by Jonathan Wroblewski from the Sentencing Matters Substack concerning the Commission's latest work. 

I always highly recommend a full read of everything at the Sentencing Matters Substack, and guideline fans will especially want to get the full scope of (former DOJ official and USSC ex-officio) Wroblewski's assessment of the USSC's actions.  Here is just an incomplete (and spicy) taste:    

The federal guidelines have been relentlessly criticized since they were first rolled out in the late 1980s.  And that criticism has focused on Step One – the guidelines calculation – its false precision, complexity, reliance on quantifiable factors, lack of accounting for culpability factors, severity, and more.

So, when last spring, the Sentencing Commission announced, with great fanfare, an ambitious agenda of reform priorities for the 2024-25 guideline amendment year, many of us were very excited.  Structural reform was long overdue.

In this 40th anniversary year of the Sentencing Reform Act (SRA), and 20th anniversary year of the Supreme Court’s decision in Booker, the Commission said it would be reflecting on the core goals of the Sentencing Reform Act, the progress that has been made towards meeting them, and what actions might be taken now, and in the future, to further them. It sounded like a big deal....

With expectations high, last Friday, the Commission’s amendment year came to an end with a rather short and quite opaque public meeting, unbecoming given the importance of the issues at stake and the process leading up to it.  There were votes on amendment proposals for sure, but almost no explanation from commissioners for the consequential choices they were making. It turned out to be quite a disappointment.

First, there was no discussion of the Commission’s thinking and how it arrived at its decisions.  The Commission spent two and half days in deliberations behind closed doors, and then in a public meeting of less than a half hour, explained nothing of how those deliberations resulted in the actions taken and not taken.  Judges, practitioners, Members of Congress, advocates, inmates, family members, and academics spent countless hours developing and submitting written comments to the Commission, and there was virtually no explanation of how those comments were considered. Second, the Commission in the end did not even address the categorical approach.  No matter how many times the Commission places the issue on its priorities – and it has over and again for over a decade – it just can’t seem to find a fix.  And again, no explanation.

Third, the Commission did not address the unwarranted disparities in methamphetamine sentencing identified by numerous commentors.  This seemed especially perplexing given Judge Reeves' own detailed decision in United States v. Robinson, holding that the methamphetamine purity enhancement had ceased to have any meaning.  And again, no explanation.  Fourth, the Commission made no fundamental reform to the drug guideline or to Step One of any other guideline.  It did take steps to ensure that drug offenders who play a mitigating role are not over-punished.  But the Commission has tried this before – numerous times, in fact – and it is far from clear that the steps taken will make a significant difference in drug sentencing policy.

The guideline formulas of Step One which have been the basis of the fundamental critique of the federal guidelines were left almost entirely alone.  And then, this headline decision.  Rather than consolidating Steps Two and Three of the sentencing process to simplify the Guidelines and incorporate Booker into them while still guiding courts in whether to sentence individual defendants outside that recommended range or at a particular point within the range, the Commission simply eliminated Step Two and then also eliminated all guidance on what now will be the second and final step for sentencing after calculating the guideline range.

Under the new guideline architecture, courts will continue to calculate the guideline sentencing range under Step One.  They will continue to use the flawed guideline formulas found in many guidelines, especially the drug and fraud guidelines.  But now, when the courts move to the judging part of the sentencing process, they will be left without any guidance.  Courts will take Step Two on their own.  I’m not sure why the Commission thinks this will better achieve the statutory purposes of sentencing reform.  I’m not sure why this won’t result simply in greater unwarranted sentencing disparity.  It strikes me that eliminating the guidance has made the sentencing process worse.

Highlighting public defender crises and pressing needs for "ensuring fairness in our Justice System"

The state of public defense often seems quite dire in settings where the Constitution ensures a right to counsel, even without even considering the wide and deep problems of unmet legal needs elsewhere in our criminal justice systems.  These issue are on my mind in part after seeing a number of recent stories from a number of states spotlighing public defender challenges:  

From Iowa, "WANTED: Scott County public defenders: ‘I would probably call it a crisis.’"

From Maine, "Bill addressing critical shortage of public defenders headed to governor’s desk"

From Oregon, "Oregon public defender crisis far from over, as lawmakers consider different proposals"

From Washington, "Washington’s Yakima County represents breaking point in state’s public defender crisis"

These pieces caught my eye for a number of reasons, but the Maine story especially got me to thinking about the haves and the have nots when it comes to legal representation.  The Maine bill seeks to address "a crisis that has left hundreds of indigent defendants without representation — dozens of them incarcerated" — through new legislation that "would allocate roughly $3.2 million over three years."  Meanwhile, Prez Trump cut deals late last week with four more BigLaw firms to "provide an aggregate total of at least $500 Million Dollars in pro bono and other free Legal services."  As I noted in this prior post, these deals with BigLaw firms provide that pro bono services be devoted, at least in part, to "ensuring fairness in our Justice System."  The stories above highlight many examples of persons stuck in jail for extended periods while awaiting trial because of the lack of an appointed attorney.  That sure strikes me as unfair, and something these big firms could surely help fix.

As I argued before, given Prez Trump's circuitous track record(s) with all sorts of criminal justice reforms, as well as repeated statements in these BigLaw deals that pro bono work is to be focused on "ensuring fairness in our Justice System," the firms making these commitments should think broadly and dynamically about where their significant pro bono resourses can be invested most wisely.  There are a wide array of criminal justice reform advocacy groups, representing all sorts of political and social perspectives, that can highlight all sorts of unfariness in our Justice System if the BigLaw folks take some time to listen. 

Prior related post:

• Can and should BigLaw firms cutting deals with Prez Trump meet pro bono commitments through First Step Act work?

"Court-Involved Supervised Release Shows Promising Results"

The title of this post is the title of this notable recent Law360 piece that provides a great review of a program and research led by SDNY US District Judge Richard Berman that I reported on here a few years ago.  Here is the start of the piece, which is worth reading in full:

A critical component of the criminal justice system is examining alternatives to incarceration and considering programming that can help successful reintegration into society for former offenders.

One promising alternative is court-involved supervised release programs, which involve support from the sentencing judge, prosecutors, defense counsel and probation officers during the supervised release period, successful completion of which can reduce the duration of supervised release and lead to better outcomes.

Supervised release has recently received greater attention as it is currently on the U.S. Supreme Court's docket. On Feb. 25, the Supreme Court heard oral arguments in Esteras v. United States.

The issue before the court in the Esteras case is whether a court may consider factors related to punishment under Title 18 of the U.S. Code, Section 3553(a)(2)(A) — namely, "to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense" — when revoking supervised release and imposing a prison sentence, even though the sentencing provision that governs supervised release, Title 18, Section 3583(e), does not reference those factors.

Especially given the potential for harsher sentences following violations of supervised release if the Supreme Court holds that consideration of Section 3553(a)(2)(A) factors is proper, successful models of supervised release should be of particular interest to all parts of our criminal justice system.

One such model is a groundbreaking court-involved supervised release program created by the U.S. District Judge Richard M. Berman of the U.S. District Court for the Southern District of New York.

In June 2024, Judge Berman published a report examining data obtained from this program, which highlights the overwhelmingly positive effects of judicial involvement in post-incarceration supervision and reintegration, including lower rates of violations of supervised release and terms of imprisonment.  Judge Berman's report provides a blueprint for those interested in improving reintegration outcomes, and particularly for defense counsel who may seek to advocate at sentencing for such a program.

Prior related post:

•  Latest reporting of US District Court's experience getting involved with supervised release

Is a "political" (capital) prosecution illegal or unconstitutional?

The question in the title of this post is prompted by this notable new filing in the case of US v. Mangione, which is titled "Defendant Luigi Mangione’s Motion To Preclude The Government From Seeking The Death Penalty."  The filing, which is summarized in this New York Times piece, covers lots of ground, develops an array of arguments, and overall makes for an interesting read.  Its biggest ask is set out this way: "because the Attorney General’s direction to the S.D.N.Y. prosecutors — issued publicly, as a press release — to seek a death sentence for Mr. Mangione is political, arbitrary, capricious, a breach of established death penalty protocol and has now indelibly prejudiced this process, the Government should be precluded from seeking the death penalty."

I am not surprised that Mangione’s attorneys are attacking his federal capital prosecution even before he has been indicted in federal court.  But I am intrigued by certain arguments set out in this filing, particularly the suggested that the exercise of prosecutorial discretion "unabashedly for political reasons" make a (capital) prosecution illegal or improper.  I expect that the US Justice Department will respond to the filing by asserting that its decision to pursue a capital charge against Mangione was not at all political (or arbitrary or capricious).  But suppose DOJ responded by revealing that polling data and other overtly "political" reasons impacted the decision; does a (capital) prosecutiorial decision become legally problematic if "unabashedly political"?

I have put "capital" in parethesis above because there are established constitutional arguments for greater procedural limits on death penalty cases.  In many Eighth Amendment decisions over the last half-century, the Supreme Court has imposed all sorts of special rules on capital punishment tracing back to the 1972 landmark ruling in Gregg v. Georgia that required jurisdictions to develop laws to minimize the risk of arbitrary or capricious death sentencing.  But Eighth Amendment "super due process" capital rulings do not, to my recollection, bar prosecutors from considering "political reasons" in capital charging.  And, of course, if the federal capital case against Mangione moves forward, he will receive all the trial/sentencing processes that the Supreme Court has said the Eighth Amendment requires for death penalty cases. 

Then again, as set forth in US v. Armstrong, 517 U.S. 456 (1996), the Supreme Court has stated prosecutorial discretion is subject to constitutional limits based on the Equal Protection Clause:

[A] prosecutor's discretion is "subject to constitutional constraints." United States v. Batchelder, 442 U.S. 114, 125 (1979).  One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497, 500 (1954), is that the decision whether to prosecute may not be based on "an unjustifiable standard such as race, religion, or other arbitrary classification," Oyler v. Boles, 368 U.S. 448, 456 (1962).  A defendant may demonstrate that the administration of a criminal law is "directed so exclusively against a particular class of persons ... with a mind so unequal and oppressive" that the system of prosecution amounts to "a practical denial" of equal protection of the law.  Yick Wo v. Hopkins, 118 U. S. 356, 373 (1886)....

The requirements for a selective-prosecution claim draw on "ordinary equal protection standards." [Wayte, 470 U.S.], at 608.  The claimant must demonstrate that the federal prosecutorial policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." Ibid.

I can imagine an argument that a "political" focus in the exercise of prosecutorial discretion amounts to an "an unjustifiable standard such as race, religion, or other arbitrary classification" if one could show, for example, that a prosecutor pursued charges only against Republicans but never against Democrats.  But the Mangione team is not quite making that kind of contention here.  Rather, the "political" gripes in Mangione’s Motion seem to take issue essentially with the new death penalty policies adopted by the Trump Administration, policies which it does seem fair to say are influenced to some degree by "politics."  But is there really anything legally problematic here?  Put more sharply, is it realistic to expect any prosecutors to be able to entriely avoid having their (capital) charging discretion influenced, in some way, by criminal justice policies and politics?

Michigan Supreme Court declares mandatory LWOP for those under 21 violates its state constitution

Late last week, a split Michigan Supreme Court ruled in People v. Taylor, No. 166428 (Mich. April 10, 2025) (available here), that "the application of a mandatory sentence of LWOP under MCL 750.316 to [two persons who committed murder when under 21]  constitutes unconstitutionally harsh and disproportionate punishment and thus 'cruel' punishment in violation of Const 1963, art 1, § 16."  Here is how the lengthy opinion for the Court gets started: 

Following separate and unrelated jury trials, defendants were each convicted of first-degree murder. Defendant Andrew Czarnecki was 19 years old at the time of his offense, while defendant Montario Taylor was 20 years old at the time of his. Each defendant was sentenced to a legislatively mandated punishment of life in prison without the possibility of parole (LWOP). Defendants argue that the mandatory nature of their sentences violates Michigan’s prohibition against “cruel or unusual punishment,” Const 1963, art 1, § 16, and they ask us to extend our decision in People v Parks, 510 Mich 225, 268; 987 NW2d 161 (2022), where we held that, under our state Constitution, mandatory LWOP sentences are cruel or unusual when applied to 18-year-olds.

We agree with defendants and extend Parks to individuals who were 19 or 20 years old at the time of the crime for which they were convicted. Our Constitution and caselaw interpreting it requires us to evaluate the proportionality of defendants’ sentences. To do so, we use the factors laid out in People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972), and People v Bullock, 440 Mich 15; 485 NW2d 866 (1992), which incorporate evolving standards of decency that mark the progress of a civilized society.  Late adolescents who are 19 or 20 years old, as a class, share with 18-year-olds the same mitigating characteristics of late-adolescent brain development.  The same considerations that were discussed at length in Parks apply equally to this class of late adolescents.  Accordingly, as applied to defendants who were 19 or 20 years old at the time of their crime, a mandatory LWOP sentence that does not allow for consideration of the mitigating factors of youth or the potential for rehabilitation is a grossly disproportionate punishment in violation of Const 1963, art 1, § 16.

The dissent, authored by Chief Justice Clement, gets started this way:

In my dissent in People v Parks, 510 Mich 225, 298-299; 987 NW2d 161 (2022) (CLEMENT, J., dissenting), I cautioned that this Court’s decision to extend Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), beyond its constitutional bounds would not be the last step in its march. Today, the Court takes another two steps, pushing Parks past 18-year-olds to 19- and 20-year-olds. The Michigan Constitution’s prohibition on “cruel or unusual punishment” does not compel this result. Therefore, I dissent.

This local article about the ruling states that the ruling, which states expressly that it is to be applied retroactively, "will require resentencing hearings for roughly 580 prisoners convicted of murder."

Judge rejects new Los Angeles DA's request to revoke predecessor's resentencing petition for Menendez brothers

As reported in this Los Angeles Times article, headlined "Menendez brothers to get resentencing after D.A. fails in bid to stop it," yesterday brough a notable development in a notable state resentencing effort. Here are excerpts from a lengthy article:

An L.A. County judge denied Dist. Atty. Nathan Hochman’s bid Friday to revoke a petition to resentence the Menendez brothers that was filed by his predecessor, setting the stage for a hearing that could offer the brothers a path to freedom next week.

Superior Court Judge Michael Jesic denied Hochman’s request after a tense, daylong hearing that saw prosecutors display bloody crime scene photos of the bodies of Jose and Kitty Menendez in a courtroom lined with their relatives, many of whom want their killers, sons Erik and Lyle Menendez, set free.

In October, former Dist. Atty. George Gascón sought to have the brothers resentenced to 50 years to life in prison — a move could have made them eligible for parole as youthful offenders because they carried out the killings before they were 26 years old. After Hochman thrashed Gascón in the November election, he promised to revisit the Menendez case.

Last month, Hochman formally announced his opposition to their release and said he’d ask a judge to rescind Gascón’s petition and only consider his filing as the official position of the district attorney’s office. He focused on the idea that the brothers had not shown proper “insight” into their crimes, but Jesic dismissed that as irrelevant to the resentencing proceedings and said “there was nothing really new” in the analysis of the case offered by Hochman....

Jesic’s ruling on Friday clears the path for a resentencing hearing, which is expected to last at least two days and begin in Van Nuys on Thursday....

While the brothers’ resentencing petition will draw droves of media to a Van Nuys courtroom over the next several weeks, it is not their only potential path to freedom. In addition to their motion for a new trial based on fresh allegations of sexual abuse by their father, Gov. Gavin Newsom is considering the brothers’ application for clemency and directed the state parole board to launch a risk assessment of the brothers.

If they were granted clemency and appeared before the parole board, however, Hochman has vowed to fight their release again.

Some prior related posts:

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

US Sentencing Commission votes to promulgate notable amendments to the US Sentencing Guidelines

At a public hearing this afternoon, the US Sentencing Commission voted unanimously to advance a significant set of amendments to the federal sentencing guidelines.  One major amendment is focused on guideline "simplification" by eliminating lots of  "departures" from the guideline manual (which have functionally withered since Booker made the guidelines advisory 20 years ago).  Additional amendments focused on supervised release, drug offenses, firearm offenses and a few circuit conflicts. 

There are lots of intricacies here, but the simplification and supervised release amendments will, at least indirectly, impact almost every federal sentencing.  And I believe the drug and firearm amendments could impact a considerabe number of cases.  (The USSC also voted to conduct a retroactivity impact analysis for one part of the drug guideline reform and for the circuit conflict reforms.)  Because Congress gets six months to review the Commission's proposed amendments, these changes do not become effective until November 1, 2025 (assuming Congress does not intervene, which it has done only once over 30+ years of guideline amendments).   

When the USSC formally announces all the details of these amendments, I will update this post.   

UPDATE:  Here is the USSC's press release providing an efficient accounting of its notable work today:

Today, the bipartisan United States Sentencing Commission voted unanimously to publish amendments to the federal sentencing guidelines for the amendment cycle ending May 1, 2025.  These amendments update a range of guidelines provisions, including those related to supervised release, drug trafficking, and firearms offenses. “The policies issued today are bipartisan, common-sense ideas that will protect public safety, reduce recidivism, and facilitate rehabilitation,” said Judge Carlton W. Reeves, Chair of the Commission. (Watch the public meeting.)

Today’s amendments will improve federal sentencing by:

• encouraging courts to take an individualized approach to the imposition and management of supervised release;
• addressing the harms of “fake pills” containing fentanyl while ensuring sentences better reflect a defendant’s function in drug trafficking;
• providing appropriate penalties for firearms offenses that involve machinegun conversion devices;
• simplifying the “three-step” approach that courts currently use when applying the guidelines; and
• promoting consistent guideline application by resolving certain circuit conflicts.

The amendments issued by the Commission today will be posted HERE and will be delivered to Congress by May 1, 2025. If Congress does not act to disapprove the changes, they will go into effect on November 1, 2025.

The linked "Amendments to the Sentencing Guidelines (Preliminary)" runs 686 pages(!), though I think "only" the first 80 or so pages deal with the bulk of the substantive amendment while the other 600 set forth the burial right for departures throughout the guideline manual.

"Kennedy v. Louisiana and the Future of the Eighth Amendment"

The title of this post is the title of this article just posted to SSRN and authored by Alexandra L. Klein.  Here is its abstract:

In 2023, Florida passed a law permitting the imposition of the death penalty for the rape of a child under twelve. Tennessee enacted a similar law in 2024.  These laws conflict with Kennedy v. Louisiana, a 2008 decision in which the Supreme Court held that imposing the death penalty for the rape of a child violated the Eighth Amendment’s Cruel and Unusual Punishments Clause because it was inconsistent with the evolving standards of decency.  Legislators in Florida and Tennessee have expressed their hope that the Supreme Court will overrule Kennedy v. Louisiana.  These laws, which resemble state attempts to undo abortion protections through legislation, are not just death penalty politics. Scholars have warned that the Court’s growing reliance on original meaning, history, and tradition may undo extant Eighth Amendment protections.  States have filed amicus briefs asking the Court to reject Eighth Amendment precedent.  More recently, in City of Grants Pass v. Johnson, the Court described the Eighth Amendment in narrow, historically focused terms, signaling that further alterations to the Eighth Amendment are coming.

This Article addresses the potential for overruling Kennedy v. Louisiana and what that may mean for the future of the Eighth Amendment’s Cruel and Unusual Punishments Clause.  While Kennedy is settled law, the Court’s current approach to constitutional questions and recent Eighth Amendment jurisprudence demonstrate that constitutional protections that were assumed to be settled are now at risk, and the Eighth Amendment is in jeopardy.  The Supreme Court’s recent decision in Grants Pass demonstrates that the Court is currently “stealth overruling” its Eighth Amendment jurisprudence.  The Court is likely to continue this project because of changes to its membership, its new approach to stare decisis, and legislative opportunism.  This Article contributes to recent academic literature that addresses the future of the Eighth Amendment by analyzing how new state laws expanding capital offenses to include the rape of a child may undermine precedent through the Court’s reliance on “democratic deliberation” narratives, as described in scholarship by Professors Melissa Murray and Katherine Shaw that addresses the aftermath of Dobbs v. Jackson Women’s Health Organization.

This Article offers two possible future directions for Eighth Amendment jurisprudence: “devolving” standards of decency — in which states can create a national consensus to undo constitutional protections — or, more likely, a restrictive historical approach.  This Article concludes by discussing how these changes threaten the stability of Eighth Amendment jurisprudence and explaining the risks of legislative and judicial expansion of the death penalty after decades of judicial rulings that attempted to narrow it.  It may be tempting to dismiss the consequences of overruling Kennedy — people convicted of sexually assaulting children are targets of universal revulsion.  But changing constitutional and legal standards because of outrage at criminal conduct weakens vital constitutional protections against cruel and unusual punishment.

Reviewing Louisiana's new (algorithmic) approach to parole

A helpdul colleague made sure I saw this new ProPublica piece looking at Louisiana's new parole law and practices. I would recommend the lengthy piece in full, with its themes previews by this headline: "An Algorithm Deemed This Nearly Blind 70-Year-Old Prisoner a “Moderate Risk.” Now He’s No Longer Eligible for Parole." Here are excerpts:

A computerized scoring system adopted by the state Department of Public Safety and Corrections had deemed [Calvin Alexander,] the nearly blind 70-year-old, who uses a wheelchair, a moderate risk of reoffending, should he be released.  And under a new law, that meant he and thousands of other prisoners with moderate or high risk ratings cannot plead their cases before the board. According to the department of corrections, about 13,000 people — nearly half the state’s prison population — have such risk ratings, although not all of them are eligible for parole....

The law that changed Alexander’s prospects is part of a series of legislation passed by Louisiana Republicans last year reflecting Gov. Jeff Landry’s tough-on-crime agenda to make it more difficult for prisoners to be released.  While campaigning for governor, Landry, a former police officer and sheriff’s deputy who served as Louisiana attorney general until 2024, championed a crackdown on rewarding well-behaved prisoners with parole.  Landry said early release, which until now has been typically assumed when judges hand down sentences, is a slap in the face to crime victims....

The Legislature eliminated parole for nearly everyone imprisoned for crimes committed after Aug. 1, making Louisiana the 17th state in a half-century to abolish parole altogether and the first in 24 years to do so.  For the vast majority of prisoners who were already behind bars, like Alexander, another law put an algorithm in charge of determining whether they have a shot at early release; only prisoners rated low risk qualify for parole.

That decision makes Louisiana the only state to use risk scores to automatically rule out large portions of a prison population from being considered for parole, according to seven national criminal justice experts.  That was not how the tool, known as TIGER, an acronym for Targeted Interventions to Greater Enhance Re-entry, was intended to be used. Developed as a rehabilitative measure about a decade ago, it was supposed to help prison officials determine what types of classes or counseling someone might need to prevent them from landing back behind bars — not be used as a punitive tool to keep them there, said one of its creators.

US Sentencing Commission creates two new and notable advisory groups

As detailed in this press release, the "United States Sentencing Commission announced this week the formation of a Sentence Impact Advisory Group (SIAG) and an ad hoc Research and Data Practices Advisory Group (RDPAG) with the objectives of strengthening, modernizing, and expanding the scope of expert voices called upon in the Commission’s work."  This page on the USSC's website details the four existing advisory groups and their purposes, and it also explains the purposes of the new groups in this way:

The purpose of the RDPAG is— (1) to assist the Commission in carrying out its statutory responsibilities under 28 U.S.C. §§ 991(b) and 995(a)(12)–(16); (2) to study the best practices of other government agencies and nongovernmental organizations (including those that perform tasks or provide services not related to criminal justice) relating to the collection, maintenance, use, analysis, and dissemination of data relevant to the mission of such agencies and organizations, and the development and execution of research agendas; (3) to report and make recommendations on how the Commission may incorporate any best practice to more effectively carry out its statutory duties and responsibilities under 28 U.S.C. §§ 991(b) and 995(a)(12)–(16), and fulfill its unique role as a clearinghouse for federal sentencing statistics and practices; and (4) to perform any other related functions as the Commission requests....

The purpose of the SIAG is— (1) to assist the Commission in carrying out its statutory responsibilities under 28 U.S.C. § 994(o); (2) to provide to the Commission its views on the Commission’s activities and work, including proposed priorities and amendments, as they relate to sentenced individuals; (3) to disseminate information regarding federal sentencing issues to other sentenced individuals, families of sentenced individuals, and advocacy groups, as appropriate; (4) to provide to the Commission its views on how the Commission may better incorporate into its work the perspectives of individuals affected by federal sentences; (5) to assist the Commission in determining how it can best fulfill its duty under 28 U.S.C. § 994(s) to “give due consideration to any petition filed by a defendant requesting modification of the guidelines utilized in the sentencing of such defendant, on the basis of changed circumstances unrelated to the defendant”; and (6) to perform any other related functions as the Commission requests.

And here is more from the press release about these new groups:

Both groups will serve in an advisory capacity and will not have voting or policymaking authority. The deadline to apply is June 6, 2025.

• How do I apply to SIAG?   
• How do I apply to RDPAG?

"Race, the Academy, and The Constitution of the War on Drugs"

The title of this post is the title of this article/book review authored by Jeffrey Bellin and I. Bennett Capers and recently posted to SSRN. Here is its abstract:

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971.  David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well.  Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success.  Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions.

This Review highlights, supplements, and critiques Pozen’s important contribution to our understanding of the war on drugs.  We begin with a look in the mirror, acknowledging the legal academy’s own role in enabling the drug war.  Next, we introduce alternate explanations for the judicial passivity that Pozen criticizes.  Chief among these is race-making: the drug war helped its proponents shape the evolving meaning of race.

We also challenge Pozen’s nuanced explanations for judicial resistance to substantive constitutional challenges.  The constitutional terrain where litigants most frequently challenged the drug war was procedural: the Fourth Amendment.  And in those battles, the Supreme Court proved to be an eager drug warrior, not an ambivalent conscript.  The same pattern repeats itself throughout federal and state courts and across the broader “war on crime.”  Our critiques do not take away from Pozen’s contribution — the unearthing of a forgotten history of early battles in the drug war where litigants and judges briefly pushed back on the now widely accepted notion that drug use and possession could be criminalized.  But we situate his findings within a broad backdrop of race, crime, and, above all, the judiciary’s eagerness to just say “yes” to the war on drugs.

Can and should BigLaw firms cutting deals with Prez Trump meet pro bono commitments through First Step Act work?

The question in the title of this post is prompted by this new Bloomberg Law podcast titled "Trump Gets Millions in Pro Bono Work, But Details Still Fuzzy."  Here is the set up to the discussion:

Law firms are striking deals with President Trump to avoid getting hit with punitive executive orders, pledging hundreds of millions of dollars combined in pro bono legal work....  The details of how these deals will work in practice are scant to nonexistent.  How will the legal work be tracked?  What qualifies as a conservative client?  Can the White House reject certain clients as not conservative enough?  And does this mean these firms will now turn away liberal-leaning pro bono clients?

The emphasis throughout the podcast is how much uncertainty and ambiguity surrounds the commitments by various BigLaw firms to dedicate the equivalent of tens of millions in pro bono legal services during Prez Trump's time in office.  Notably, though, the basic substantive focus of the various pro bono pledges have been specified: eg, Paul Weiss ("causes including assisting our Nation’s veterans, fairness in the justice system, and combating anti-Semitism; and other similar initiatives"); Skadden ("Assisting Veterans and other Public Servants...; ensuring fairness in our Justice System; and combatting Antisemitism"); Willkie Farr (Assisting Veterans and other Public Servants ...; Ensuring fairness in our Justice System; and Combatting Antisemitism"). 

The reference to pro bono work focused on "ensuring fairness in our Justice System" drives my thinking that these firms and other BigLaw firms ought to give particular pro bono resources and attention to advancing the implementation of the First Step Act.  After all, Prez Trump advanced and signed the First Step Act into law back in 2018, and so pro bono work seeking to implement that law fully would surely qualify, in the view of this Administration, as efforts to advance fairness in our federal criminal justice system. 

And there is no shortage of First Step Act implementation work still needing to be done that BigLaw firms could seek to help with in a variety of ways.  In her confirmation hearings, AG Bondi acknowledged widespread problems with the Bureau of Prisons and failures to "follow through on the promise of the First Step Act."  Additional pro bono advocacy and litigation efforts supported by BigLaw to advance BOP reforms might be of great value to enhance DOJ "follow through."  There is already considerable litigation concerning federal prisoners being denied earned-time credits under the First Step Act, including an on-going ACLU's class-action lawsuit.  And thousands of elderly federal prisoners, as well as tens of thousands of low-risk federal prisoners, might well have viable arguments for a sentence modification under the enhanced "compassionate release" procedures and rules created by First Step Act. 

Beyond specific issues realted to the First Step Act, one could argue that all pro bono efforts to help prisoners with legal claims who cannot afford private counsel should qualify as advancing "fairness" in our legal system.  After all, once direct appeals are complete, prisoners no longer have a right to an appointed attormey, but wealthy prisoners can and ofter do hire private counsel to continue pressing legal claims.  It surely is unfair if only those few prisoners who can afford lawyers can get legal help with various post-convictions claims.  (I regularly receive letters, emails and calls from federal prisoners and their families seeking pro bono help with their cases; I would love to be able to refer these inquiries to a BigLaw firm working on "ensuring fairness" in our justice system.)

Ever eager to turn BigLaw lemons into "fairness" lemonaide, I sincerely hope the firms making pro bono commitments will significantly invest in First Step Act work and broader criminal justice reform efforts.  Prez Trump's robust and wide-ranging clemency grants in just his first few months in office demonstrates he sees many, many, many individuals being "treated very unfairly" by the federal criminal justice system.  There are no shortage people who claim that the justice system has treated them unfairly, and it would be great to see BigLaw firms making big pro bono commitments in this arena.

Bureau of Justice Statistics releases "Jail Inmates in 2023 - Statistical Tables"

Via email, I learned this morning that the Bureau of Justice Statistics has now published new data about jail populations as of 2023 under the exciting title "Jail Inmates in 2023 - Statistical Tables."  The new data is available now only in the form of this web-based report, and here are its listed "Introduction" and "Highlights":

At midyear 2023, local jails held 664,200 persons in custody, similar to midyear 2022 (663,100) and marking a 9% decrease in the inmate population compared to the 731,200 10 years earlier.  The rate of incarceration stood at 198 persons per 100,000 U.S. residents, a 14% decline from 231 jail inmates per 100,000 a decade ago.  From July 2022 to June 2023, local jails nationwide recorded 7.6 million admissions.  While this represented a 4% increase from the 7.3 million admissions the year before, annual admissions were 35% lower than a decade ago when admissions totaled 11.7 million.

• At midyear 2023, local jails held 664,200 persons in custody, similar to midyear 2022 (663,100) and marking a 9% decrease in the inmate population compared to a decade ago (731,200).

• Between 2020 and 2023, the number of adults in local jails increased by 21%, while the population of individuals age 65 and over grew disproportionately by 78%.

• There were 198 persons incarcerated in jail per 100,000 U.S. residents at midyear 2023, down from 231 inmates per 100,000 at midyear 2013.

• From July 2022 to June 2023, people admitted to local jails spent an average of 32 days in custody before release, 7 days longer compared to 8 years prior (25 days).

• The number of inmates held in local jails for federal and state prison authorities declined by 32,600 (down 26%) from 2013 to 2023.

• The number of persons held in local jails for U.S. Immigration and Customs Enforcement decreased by 60% from 2013 to 2023.

• At midyear 2023, there were a total of 915,800 jail beds in the United States and 73% of the beds were occupied.

• After a 12% increase from 2015 to 2019, the number of staff employed at local jails decreased to 211,700 by midyear 2023, falling below the 2015 level (213,000).

"Pardoning Corporations"

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

Though the Pardon Clause could be interpreted to include or exclude corporate offenses, overlooked history suggests the broader interpretation is the more plausible one.  The Clause codified a power that had existed for centuries in England. And corporations were often pardoned at common law — including the Massachusetts Bay Company.  This tradition lasted for hundreds of years, and it is the backdrop against which the Framers drafted the Pardon Clause. Even following the Founding, people continued to understand that the pardon power stretched to corporations. Since that time, however, institutional memory has faded.

The President could condition forgiveness on corporate compliance programs or on donations to his political campaign. He could offer pardons to foreign companies to sweeten relations with other countries.  He could effectively abolish corporate criminal liability during his terms, at least at the federal level, even for prosecutions initiated by independent agencies. He could pardon his own companies to protect them from prosecution.  Or he might even pardon companies that bribed him.  Given the sweeping pardon power in Article II, all these decisions fall within the President’s discretion.  He does not even need to wait for a company to apply.

Some of these consequences are startling, but Congress can limit the pardon power’s effects in two ways.  First, Congress can refuse to appropriate refunds of pardoned fines.  At the time of writing, Congress has not appropriated such refunds for individuals or companies. That decision denies people reprieve from the most common, and often most consequential, punishments imposed on companies.  Second, Congress can repeal statutes that impose corporate criminal liability and replace them with unpardonable civil infractions, depriving the President of offenses to pardon.

Some state constitutions might also include a power to pardon companies.  Though this account is more tentative, some attorneys could be more effective advocates if they encouraged their corporate clients to apply for pardons. Federal juries convict around 100 companies per year; states impose the rest of the corporate criminal liability.  In most states, there is little authority one way or the other, which creates opportunities for good lawyering.  This is important because, even if the President never pardons a company again, some state governments might consider doing so.  Alaska’s Governor already did, and that pardon is unlikely to be alone forever.

US Sentencing Commission has (possible) vote scheduled on (big?) proposed guideline amendments

As detailed on this webpage, federal sentencing fans need to mark their calendars for the afternoon of April 11, 2025.  In addition to watching The Masters, I now expect to be multitasking because the US Sentencing Commission has noticed its next public meeting for Friday, April 11, 2025 at 1:30 pm.  This public meeting could be a big moment in the 2024-2025 guidelines amendment cycle for the Commission: on the meeting agenda is "Possible Vote to Promulgate Proposed Amendments."

Interestingly, last year's April public meeting notice, as seen here, listed "Vote to Promulgate Proposed Amendments" an as agenda item.  Though I might be reading too much into an extra word, that this year's meeting agenda states "Possible Vote" has me wondering if there is a real possibility that the Commission will not advance any proposed guideline amendments later this week. 

The Commission has had an extremely ambitious amendment cycle, with two sets of major guideline amendment proposals (basics here and here) and two extensive hearings on these guideline amendment proposals (basics here and here).  Though some of this cycle's guideline amendment proposals focus on small issues, other proposals under consideration could impact nearly every sentencing or huge portions of the federal caseload (eg, drug cases).  Any big amendments from the USSC this cycle could be a very big deal.

Or not, if no amendments are voted forward.  I have been wondering whether any clear "amendment consensus" had emerged from the submitted comments and public hearing discussions on all the proposed amendments.  Moreover, as noted here a few months ago, the Commission is down to only five voting members and so there now needs to be near unanimity on proposed amendments for them to advance.

I will certainly be tuning in, but I really do not have any firm predictions about just what to expect (either for the USSC's work or The Masters).