Sentencing Law and Policy

"Defenseless: Lack of public defenders creates a crisis for indigent clients and increased caseloads for lawyers"

The title of this post is the title of this lengthy feature article in this month's ABA Journal. Here are some excerpts (with links from the original):

Oregon, like many states, is facing a crisis in public defense because of low pay, excessive caseloads, frequent burnout and a "great resignation" of qualified attorneys that began during the pandemic and shows no signs of ebbing....

The Oregon Project, a 2022 report issued by the ABA Standing Committee on Legal Aid and Indigent Defense and created with the accounting firm Moss Adams, estimated that Oregon was short nearly 1,300 attorneys to adequately provide counsel to those accused of crimes in the state.

That report was followed in 2023 by the National Public Defense Workload Study, a national study the ABA Standing Committee on Legal Aid and Indigent Defense and others completed with the help of the RAND Corp. that recommended a complete overhaul of national public defender caseload standards....

From the prosecutors' perspective, the crisis is making their job harder as well, says Charlie Smith, state's attorney for Frederick County, Maryland, and the immediate past president of the National District Attorneys Association.  Smith believes both prosecutors and public defender offices should be better funded and that more loan forgiveness programs are needed.  "The bottom line is, there's a shortage of lawyers in public service," Smith says.  "You have to compete with a smaller pool of law school graduates with large student loans.  A lot of them go into private practice."...

Other states are feeling the crunch in public defense and trying to address the crisis.  In 2022, the Wisconsin Association of Criminal Defense Lawyers sued Brown County on behalf of eight defendants whose cases languished for months waiting for assigned counsel — but a judge in September 2023 denied the class action.

Colorado's Office of the State Public Defender is asking the state legislature for an additional $14.7 million to fund 70 more attorneys and 58 paralegals and support staff — a significant boost, but well short of the 230 total new attorneys the office says will be needed to provide adequate representation based on the National Public Defense Workload Study.

Pennsylvania, which previously had a system of public defense funded exclusively by counties, in early 2024 dedicated the first state funds — $7.5 million in grants — to assist with public defense.  In Missouri, which in the past dozen years has worked to reform its system, a court ordered in 2023 that wait times for assigned counsel — which for almost 600 defendants had lasted more than a year — be limited to two weeks. 

Minnesota Gov Tim Walz, the veep pick by Prez candidate Harris, has his own notable criminal justice history

Multiple media outlets are now reporting that VP and Prez candidate Kamala Harris has chosen Minnesota Governor Tim Walz as her running mate.  I noted in this post last month that VP Harris was a distinctive nominee given her  extensive criminal justice experiences in California.  And, in his role as Governor of the North Star State, Tim Walz also has some notable criminal justice history. 

Of course, political science folks assert VP picks have very little or no impact on electorial outcomes.  But I am always inclined to believe that a VP can prove meaningful and perhaps even consequential on various policy fronts. Consequently, I think Gov Walz's criminal justice history is worth a brief note on the day of his selection (and maybe more in the future).

For starters, here are a few prior posts from this blog discussing sentencing reform enacted in Minnesota that were signed into law by Gov Walz:

• New Minnesota law provides for prison alternatives for veterans involved in lower-level offenses (from 2021)
• Minnesota through new legislation becomes 28th state to prohibit juve LWOP (from 2023)
• Spotlighting the development of prosecutor-led resentencing movement (from 2023)

In addition, from my other blog, "Minnesota poised to become 23rd state to legalize marijuana for adult use" (from 2023).

My understanding is that these posts discuss only a portion of the criminal justuce reforms that have become law in the North Star State in recent years.  Moreover, I suspect that Gov Walz's role as a member of the Minnesota Board of Pardons may be the activity that has most shaped his views on criminal justice issues.  This lengthy article from the New York Times about the Board's work, which I flagged in this prior post, has lots of notable passages, including these:

But formal forgiveness in Minnesota comes only through the pardon board and its de facto chairman, Gov. Tim Walz, 59, a retired high school teacher and former congressman. When he took office in 2019, his knowledge of his newfound pardon power came mostly from movies. “Theoretically, I understood,” he said. “Operationally, no idea.” Now, with eight rounds of pardon hearings behind him and two days of hearings before him, the governor better understood the heartwarming, heartbreaking realities of this power of his....

Hours later, his pardon work done, the governor would return to his office in the landmark State Capitol, where everything down to the gold-rimmed coaster beneath his can of Diet Mountain Dew underscored his role as the quasi-sovereign of Minnesota. Just as Jim Lorge, former meth dealer, had represented seekers of mercy through the ages, so, too, did Tim Walz stand for those empowered over the millennia to dispense it.

Sitting at a long mahogany table, the governor would recount certain moments from the last two days, moments of joy and of pain. He and his two board colleagues had granted 17 pardon requests, denied three others and left the three other imprisoned supplicants with some measure of relief. They had granted mercy and withheld mercy.

Supreme Court rejects notable effort by MIssouri to stay Donald Trump's gag order and sentencing in New York

As reported in this CBS News piece, the "Supreme Court on Monday rejected a longshot bid by the state of Missouri to halt former President Donald Trump's impending sentence and lift the gag order imposed in the New York 'hush money' case until after the November presidential election." Here is more:

The high court denied Missouri's request to bring its case against New York, and dismissed a separate motion to pause Trump's sentencing in an unsigned order. There were no noted dissents. Justices Clarence and Samuel Alito said they would have granted the state's request to file a bill of complaint, but would not have granted the other relief Missouri sought....

In the request to halt Trump's sentence and temporarily lift the gag order, Missouri Attorney General Andrew Bailey, a Republican, claimed that New York prosecutors are attempting to interfere with Trump's campaign by using their "coercive power" in the form of the gag order and forthcoming sentence.

"Allowing New York's actions to stand during this election season undermines the rights of voters and electors and serves as a dangerous precedent that any one of thousands of elected prosecutors in other states may follow in the future," he wrote. "The public interest stands firmly with Missouri and the protection of the electoral process from this type of partisan meddling."

Bailey told the court that New York has interfered with Missouri's election process by impairing presidential electors' and voters' ability to see Trump on the campaign trail and hear him speak.  Even if Trump could schedule events in September and October, after his scheduled sentencing, the gag order would restrict what he could say at those rallies, Bailey claimed....

New York officials urged the Supreme Court to deny Missouri's attempt to halt Trump's sentence, arguing that the state is attempting to further Trump's individual interests, and that there is no role for the nation's highest court to play.  "Allowing Missouri to file this suit for such relief against New York would permit an extraordinary and dangerous end-run around former President Trump's ongoing state court proceedings and the statutory limitations on this Court's jurisdiction to review state court decisions," Attorney General Letitia James wrote in a filing.

James, a Democrat, argued that the actions Missouri challenges are not attributable to the state of New York, but rather the Manhattan district attorney, who is elected by voters in the county.  "Allowing Missouri to invoke this court's jurisdiction to interfere with the enforcement of criminal law in New York is contrary to these foundational principles and undermines New York's proud tradition of preserving the independence of local DAs," she wrote.

James also warned that Missouri's requested relief risks undermining the integrity of the courts and inviting a flood of similar litigation, which she called "unmeritorious."

The Supreme Court's short order rejecting Missouri's notable effort to secure a stay of New York’s gag order and impending sentence against Donald Trump is available at this link.

Rounding up a few major press pieces about revoked 9/11 plea deals

As noted in this prior post, US Defense Secretary Lloyd Austin late Friday revoked a plea agreement that took away the possibility of a death sentence for the accused mastermind of the 9/11 attacks and two accomplices.  I have seen a number of recent notable major press pieces about these developments, and here is a brief round up:

From the AP, "Sept. 11 families group leader cheers restoration of death penalty option in 9-11 prosecutions"

From The Hill, "Austin was ‘surprised’ by 9/11 plea deals, Pentagon says"

From the New York Times, "How the 9/11 Plea Deal Came Undone"

From Politico, "Republicans praise Austin’s reversal of the 9/11 plea deal, but some victims’ families just want closure"

From the Wall Street Journal, "Plea Deals for 9/11 Defendants Revoked, Leaving Cases in Limbo"

Prior recent related posts:

• Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty 
• Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences
• US Defense Secretary overrules GITMO overseer to revoke plea agreement with 9/11 defendants

After Lymon, what might be next major Michigan state constitutional ruling limiting severe punishments?

I blogged here last week on the intriguing divided Michigan Supreme Court ruling in Michigan v. Lymon, No. 164685 (Mich. July 29, 2024) (available here), which held that Michigan's state constitution precluded putting people convicted of non-sexual crimes on the state's sex-offender registry.  The Behind the Bench Newsletter features that ruling in this new posting, titled "Will The Michigan Supreme Court Ban Death By Incarceration?", which merits reading in full.  Prompting the question in the title of this post, the entry noted that there are now "at least seven cases pending" on the Michigan Supreme Court's docket "that raise claims under the 'cruel or unusual' clause" in the Michigan consituttion.  Here is an extended excerpt (with links from the original):

In another win for state constitutional rights, the Michigan Supreme Court last week held that requiring someone without any sex-related convictions to register as a sex offender — something that, remarkably, most states do to some extent —violates the state’s ban on “cruel or unusual” punishment.  Central to the ruling were both the text of Michigan’s antipunishment clause — which, with its disjunctive formulation, is broader than the federal 8th Amendment’s “cruel and unusual” prohibition — and the state’s tradition of prioritizing rehabilitation as the primary goal of criminal sentencing....

The ruling in People v. Lymon will free about 300 people from the sex offender registry.  Beyond that, it further cements the Michigan Supreme Court as a national leader in building state antipunishment jurisprudence and expanding rights against extreme and needless punishments.  And that trend should continue: There are at least seven cases pending on the court’s docket that raise claims under the “cruel or unusual” clause, all touching on a common theme: will the court further limit lifetime punishments that, contrary to the state’s long constitutional history, “forswear[] altogether the rehabilitative ideal”?...

But in 2022, the Michigan Supreme Court revived its “cruel or unusual” jurisprudence with a series of rulings that protected youth and young adults from lifelong prison terms. In People v. Parks, the court banned mandatory life without parole sentences for people 18 and younger (raising the age under federal law by one year); in other cases it banned all life sentences for youth convicted of second degree murder and specified that there is always a presumption against life without parole sentences for youth — one that prosecutors must overcome with specific evidence. In each case, Michigan’s constitutional commitment to rehabilitation was central. “Rehabilitation is a specific goal of our criminal-punishment system,” the court said in Parks. “Indeed, it is the only penological goal enshrined in our proportionality test as a criterion rooted in Michigan’s legal traditions.”  

With last week’s decision in Lymon, the court reaffirmed and built on these cases, and it’s poised to do more in the next year.  The court’s docket includes more challenges to Michigan’s draconian sex offender registration law, including claims that lifetime sex offender registration and lifetime electronic monitoring constitute “cruel or unusual” punishment.  It will also consider further limits on death-by-incarceration sentencing—a practice that is by definition incompatible with rehabilitation.  It could apply Parks retroactively, to people with final convictions, and to all people under age 21; ban all life without parole — mandatory or discretionary — for youth under 18; and ban mandatory life without parole for people convicted under the so-called “felony murder rule” — an archaic legal doctrine that allows murder convictions and the most severe punishments even when there is no intent to kill. 

Collectively, these cases could restore hope to thousands — more than 1,000 people are serving life without parole for felony murder alone.  But they also raise a question: Will the court ultimately do with one clear holding what it has started to do piecemeal?  Will it recognize that, whatever their crime or age, sending people to die in prison without even the hope of release is cruel and conflicts with fundamental state constitutional rights? This year the Massachusetts Supreme Judicial Court made history by banning all life without parole sentences for anyone under age 21. The Michigan Supreme Court could be the first to ban them entirely.

Justice Gorsuch's new book seemingly a potent pitch for criminal justice reform

I believe that the new book co-authored by Justice Neil Gorsuch and Janie Nitze, which is titled "Over Ruled: The Human Toll of Too Much Law," is not officially available until later this week. But this New York Times piece featuring an interview with the Justice by David French suggests that criminal justice reform advocates will want to check out the book when it becomes available. Here is an excerpt from the interview:

French: It struck me that some of the stories here in the book, of the way in which the complexity of criminal law has impacted people, are among the most potent in making the point.  Is there a particular story about the abuse of criminal law that stands out to you as you’re reflecting back on the work?

Gorsuch: I would say Aaron Swartz’s story in the book might be one example. Here’s a young man, a young internet entrepreneur, who has a passion for public access to materials that he thinks should be in the public domain.  And he downloads a bunch of old articles from JSTOR.  His lawyer says it included articles from the 1942 edition of the Journal of Botany. Now, he probably shouldn’t have done that, OK?

But JSTOR and he negotiated a solution, and they were happy.  And state officials first brought criminal charges but then dropped them.  Federal prosecutors nonetheless charged him with several felonies.  And when he refused to plea bargain — they offered him four to six months in prison, and he didn’t think that was right — he wanted to go to trial.

What did they do?  They added a whole bunch of additional charges, which exposed him to decades in federal prison. And faced with that, he lost his money, all of his money, paying for lawyers’ fees, as everybody does when they encounter our legal system.  And ultimately, he killed himself shortly before trial.  And that’s part of what our system has become, that when we now have, I believe, if I remember correctly from the book, more people now serving life sentences in our prison system than we had serving any prison sentence in 1970.  And today — one more little item I point out — one out of 47 Americans is subject to some form of correctional supervision (as of 2020).

French: You speak in the book about coercive plea bargaining, this process where a prosecutor will charge somebody and then agree to a much reduced sentence on the condition that they don’t take it to trial, that they go ahead and plead guilty, or sometimes when they refuse to plead guilty, they’ll add additional charges.  This is something that a lot of critics of the criminal justice system have highlighted for some time.  Do you see a remedy?

Gorsuch: Well, I’m a judge, and I’m going to apply the laws we the people pass.  That’s my job.  In the book, I just wanted to highlight to “we the people” some of the changes that I’ve seen in our law during my lifetime, and plea bargaining during my lifetime has skyrocketed.  It basically didn’t exist 50 or 100 years ago, and now 97 percent or so of federal criminal charges are resolved through plea bargaining.

And I just have some questions.  What do we lose in that process?  We lose juries.  Juries are wise, right?  And they’re a check both on the executive branch and prosecutors and they’re a check on judges, too, right?  And the framers really believed in juries.  I mean, there it is in Article 3.  There it is in the Sixth Amendment. There it is in the Seventh Amendment.  They really believed in juries, and we’ve lost that.

And another thing about juries, when you lose juries: Studies show that people who sit on juries — nobody likes being called for jury service. But studies show that after jury service, people have a greater respect for the legal system, for the government, and they participate more in their local governments.

Latest episode of "Drugs on the Docket" podcast features USSC Chair Carlton Reeves

In this post, I highlighted that the Drug Enforcement and Policy Center at The Ohio State University had been releasing episodes from Season Two of the "Drugs on the Docket" podcast.  (All of the first season's episodes are all still available via Apple Podcasts and YouTube, where you can also find all released Season 2 episodes as well.)   And now, as detailed on this podcast webpage, we just recently released the fifth episode of this new season. 

This exciting new episode captures an extended discussion with Judge Carlton Reeves, Chair of the U.S. Sentencing Commission.  This discussion took place back in March not long after Judge Reeves had delivered the 2024 Menard Family Lecture on Drug Policy and Criminal Justice at The Ohio State University Moritz College of Law (which can be watched here).  Though taped a few months ago, the release of this episode seems especially timely because the Commission has scheduled this big public meeting for this coming Thursday, August 8, 2024, to discuss, inter alia, its priorities for the coming year.  In the podcast Judge Reeves discusses at length how the Cmmission goes about setting its priorities and other aspects of the agency's work. 

From the this podcast webpage, here is this episode's description along with  show notes:

Season 2 Episode 5 – A Special Conversation with the Honorable Carlton W. Reeves, Chair of the U.S. Sentencing Commission

Host Hannah Miller and co-host Doug Berman, executive director of the Drug Enforcement and Policy Center, speak with the Honorable Judge Carlton W. Reeves, Chair of the United States Sentencing Commission and U.S. District Court Judge for the Southern District of Mississippi. Judge Reeves discusses his role as Chair of the Sentencing Commission and the recent activities of the Commission, including efforts taken to reform the U.S. Sentencing Guidelines.

Show notes:

• United States Sentencing Commission (USSC) website
• Learn about the additional two ex-officio members of the United States Sentencing Commission in addition to the members noted in the episode
• Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020
• Alternatives to Incarceration, Problem-Solving Courts, and other resources by topic (USSC)
• Statement from the White House: President Biden Nominates Bipartisan Slate for the United States Sentencing Commission
• Schoolhouse Rock! episode, “I’m Just a Bill”

"Race, Racial Bias, and Imputed Liability Murder"

Though posted on SSRN a few months ago, I just came across this new paper that shares a title with this post and was authored by Perry Moriearty, Kat Albrecht and Caitlin Glass. Here is its abstract:

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out.  Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy.  What surprisingly few scholars have addressed, however, is who bears the brunt.  This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” 

An analysis of ten years of murder prosecutions in the state of Minnesota reveals that imputed liability murder is anything but a fringe subtype of homicide: an astounding 70% of those charged with murder during this period were charged with felony murder, accomplice liability murder, or both.  The study also shows that nearly 60% of these defendants were Black, a level of racial disproportionality that is not just intrinsically extreme; it is comparatively greater than levels of disproportionality for other types of murder.  The question is, why? 

The answer lies in part in the structural and social psychological dynamics of imputed liability murder prosecutions themselves, we claim.  By reducing prosecutors’ burden to prove the most salient legal indicia of a defendant’s culpability — mens rea, actus reus, or both — and allowing prosecutors to cast a wide and undifferentiated net around almost any homicide, the felony murder and accomplice liability murder doctrines invite prosecutors to base normative charging decisions on subjective, extra-legal proxies, like “dangerousness” and “group criminality.”  Multiple studies have shown that decision-makers are more likely to attribute these proxies to Black defendants and, in turn, treat them more punitively.  Compounding these dynamics is the racial stereotypicality of the crimes themselves.  A separate body of research indicates that felony murder and accomplice liability murder have become so cognitively synonymous with Black defendants that simply shoring up the doctrines’ structural laxity may not be enough to mitigate their disproportionate enforcement.

As states across the country grapple with reforming their felony murder and accomplice liability murder laws, this Article contributes to the ongoing debate about the legitimacy of both doctrines.  It also raises critical questions about the racialized enforcement of not just these doctrines but of any doctrine that invites the State to impute criminal liability. 

US Defense Secretary overrules GITMO overseer to revoke plea agreement with 9/11 defendants

As reported in this New York Times article, "Defense Secretary Lloyd J. Austin III on Friday overruled the overseer of the war court at Guantánamo Bay and revoked a plea agreement reached earlier this week with the accused mastermind of the Sept. 11, 2001, attacks and two alleged accomplices."  Here is more:

The Pentagon announced the decision with the release of a memorandum relieving the senior official at the Defense Department responsible for military commissions of her oversight of the capital case against Khalid Shaikh Mohammed and his alleged accomplices for the attacks that killed nearly 3,000 people in New York City, at the Pentagon and in a Pennsylvania field.

The overseer, retired Brig. Gen. Susan K. Escallier, signed a pretrial agreement on Wednesday with Mr. Mohammed, Walid bin Attash and Mustafa al-Hawsawi that exchanged guilty pleas for sentences of at most life in prison.  In taking away the authority, Mr. Austin assumed direct oversight of the case and canceled the agreement, effectively reinstating it as a death-penalty case.  He left Ms. Escallier in the role of oversight of Guantánamo’s other cases.

Because of the stakes involved, the “responsibility for such a decision should rest with me,” Mr. Austin said in an order released Friday night by the Pentagon....

A senior Pentagon official said that the decision was the secretary’s alone, and that the White House had no involvement.  The official said Mr. Austin had never supported a plea deal and wanted the military commission trials to proceed.

Mr. Austin’s action was met with disbelief by lawyers at Guantánamo Bay who were preparing for a hearing, possibly as soon as Wednesday, for the judge in the case, Col. Matthew N. McCall, to question Mr. Mohammed about whether he understood and voluntarily agreed with the plea.

Prior related posts:

• Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty 
• Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences

Crash victims' families formally object to proposed Boeing plea deal

In this post last month, I asked "Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?".  I now see via this post by Paul Cassell over at The Volokh Conspiracy that he has helped file "a motion for the Boeing 737 MAX crashes victims' families, asking the district judge to reject the plea deal that the Justice Department and Boeing have negotiated."  Here is the lengthy motion's introductory statement:

Boeing’s lies to the FAA directly and proximately killed 346 people, as this Court has previously found.  ECF No. 116 at 16.  And yet, when the Government’s and Boeing’s skilled legal teams sat down behind closed doors to negotiate a plea deal, that tragic fact somehow escaped mention.  Instead, what emerged from the negotiations was a plea agreement treating Boeing’s deadly crime as another run-of-the-mill corporate compliance problem.  The plea agreement rests on the premise that the appropriate outcome here is a modest fine and a corporate monitor focused on the “effectiveness of the Company’s compliance program and internal controls, record-keeping, policies, and procedures ….” Proposed Plea Agreement, Attachment D, at ¶ 3.  And as a justification for such lenient treatment, the plea agreement relies on an incomplete and deceptive statement of facts that obscures Boeing’s true culpability.

The families object, as the Crime Victims’ Rights Act gives them the right to do.  See 18 U.S.C. § 3771(a)(3) (giving victims’ representatives the right “to be reasonably heard” regarding a “plea”).  The families respectfully ask the Court not to lend its imprimatur to such an inappropriate outcome. Indeed, the families’ first objection is that the Court would not be allowed to make its own determination about the appropriate sentence for Boeing but merely to rubber stamp what the parties propose through a “binding” plea deal under Fed. R. Crim. P. 11(c)(1)(C).

In the pages that follow, the families provide eight substantial objections to the proposed plea, including its deceptive factual premises, its inaccurate Sentencing Guidelines foundation, and its inadequate accounting for the deaths Boeing caused.  This Court has previously stated that when it has authority “to ensure that justice is done,” then “it would not hesitate.” ECF No. 186 at 29.  This proposed agreement is not justice.  The Court should not hesitate to reject it.

Prior related post:

• Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?

Michigan Supreme Court finds violation of state constitution in applying sex offender registry to non-sexual offenders

A divided Michigan Supreme Court, splitting 5-2, ruled earlier this week in Michigan v. Lymon, No. 164685 (Mich. Julu 29, 2024) (available here), that its state constitution precluded putting people convicted of non-sexual crimes on the state's sex-offender registry.  Here is how the majority opinion begins and a few key passages from a lengthy (nearly 50-page) opinion:

Defendant challenges his inclusion on the sex-offender registry under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., as cruel or unusual punishment under the Michigan Constitution.  We hold that the application of SORA to non-sexual offenders like defendant is cruel or unusual punishment in violation of the Michigan Constitution....

Although the 2021 SORA bears a rational relation to its nonpunitive purpose and the Legislature has continued to express its intention that SORA constitute a civil regulation, SORA resembles traditional methods of punishment, promotes the traditional aims of punishment, and imposes affirmative restraints that are excessive as applied to non-sexual offender registrants.  Accordingly, we conclude that the 2021 SORA constitutes punishment as applied to non-sexual offenders....

We conclude that the punishment of SORA registration for non-sexual offenders like defendant is grossly disproportionate and accordingly constitutes cruel or unusual punishment under the Michigan Constitution. See Bullock, 440 Mich at 35. Although other jurisdictions similarly include certain non-sexual offenders within their sex-offenderregistry laws, we find that this penalty is unduly harsh as compared to the non-sexual nature of the offense. Further, similar offenses do not result in this same penalty, and the offenses that do result in the same penalty are more severe and have a sexual component.  Accordingly, we conclude that the 2021 SORA constitutes cruel or unusual punishment as applied to non-sexual offenders.

The dissent, authored by Judge Zahra, clocks in at nearly 60 pages and has a multi-page conclusion that starts this way:

It is important to note what the majority opinion is and what it is not.  The majority opinion extends the Michigan Constitution to bar dissemination of accurate information to the public of those who have kidnapped and imprisoned children so that individuals in the community can have the knowledge to lead their lives as they so choose.  In so doing, the majority opinion effectively concludes that the public cannot be trusted with accurate information of convictions, because it may in the view of the majority opinion, unduly shame or burden individuals who were indeed convicted of child kidnapping and imprisonment. Despite being enacted for decades by the federal government and 42 out of 49 other state jurisdictions, this Court concludes that public registration for such offenses does not even reasonably advance the interests of public safety and awareness.  The majority opinion finishes with a conclusion never before reached by Michigan or federal courts: that public dissemination of conviction history, combined with registration requirements to ensure that the information is accurate, is so extraordinary and disproportionate to defendant’s offense of violently imprisoning children while they plead dearly for their lives and the life of their mother amounts to cruel or unusual treatment.  This is an extreme conclusion that will severely hinder this state from publicly recording and registering those who kidnap, abuse, or imprison children.

Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences

In this post last year, I noted that families of 9/11 victims had been notified that military prosecutors and defense lawyers were exploring plea deals for certain defendants that would take the death penalty off the table.  Last night, as reported in this New York Times article, it seemingly became official that the "man accused of plotting the attacks of Sept. 11, 2001, and two of his accomplices have agreed to plead guilty to conspiracy and murder charges in exchange for a life sentence rather than a death-penalty trial at Guantánamo Bay, Cuba."  Here is more:

Prosecutors said the deal was meant to bring some “finality and justice” to the case, particularly for the families of nearly 3,000 people who were killed in the attacks in New York City, at the Pentagon and in a Pennsylvania field.

The defendants Khalid Shaikh Mohammed, Walid bin Attash and Mustafa al-Hawsawi reached the deal in talks with prosecutors across 27 months at Guantánamo and approved on Wednesday by a senior Pentagon official overseeing the war court.

The men have been in U.S. custody since 2003. But the case had become mired in more than a decade of pretrial proceedings that focused on the question of whether their torture in secret C.I.A. prisons had contaminated the evidence against them.

Word of the deal emerged in a letter from war court prosecutors to Sept. 11 family members. “In exchange for the removal of the death penalty as a possible punishment, these three accused have agreed to plead guilty to all of the charged offenses, including the murder of the 2,976 people listed in the charge sheet,” said the letter, which was signed by Rear Adm. Aaron C. Rugh, the chief prosecutor for military commissions, and three lawyers on his team. The letter said the men could submit their pleas in open court as early as next week.

The plea averted what was envisioned as an eventual 12- to 18-month trial, or, alternatively, the possibility of the military judge throwing out confessions that were key to the government’s case. Col. Matthew N. McCall, the judge, had been hearing testimony this week and had more hearings scheduled for later this year to decide that and other key pretrial issues....

The three men will still face a mini trial of sorts, but probably not before next year. At the military commissions, where they were charged, a judge accepts the plea, but a military jury must be empaneled to hear evidence, including testimony from victims of the attacks, and deliver a sentence. By that point, the judge has typically resolved litigation over what evidence can be used at the sentencing proceeding.

The deal stirred both anger and relief among the thousands of relatives of those killed on Sept. 11. Some family members had been fearful that the case would never reach a resolution, and that the defendants would die in U.S. custody without a conviction. Others, wanting a death penalty, had pushed the government to get the case to trial, even at the risk of the sentence being later overturned....

Two of the original five defendants were not a party to the deal. Ramzi bin al-Shibh, who was accused of helping to organize a cell of the hijackers in Hamburg, Germany, was found incompetent to stand trial because of mental illness, and his case was severed. The fifth defendant, known as Ammar al-Baluchi, 46, also was not included in the plea agreement and could face trial alone. He is the nephew of Mr. Mohammed and is charged, like Mr. Hawsawi, with helping the hijackers with finances and travel arrangements while working in the Persian Gulf.

South Carolina Supreme Court finds all three of state's execution methods to be constitutional

As reported in this local article, a "majority on the S.C. Supreme Court has ruled that allowing death row inmates the choice of the electric chair or firing squad to carry out their sentences does not constitute cruel and unusual punishment."  Here is more about the ruling:

The decision, published July 31, comes several years after the state legislature introduced the two methods as an alternative to lethal injection, which was discontinued after the state Department of Corrections was no longer able to procure the lethal drugs necessary to carry out those sentences.

The law prompted an immediate legal challenge, with opponents of the death penalty arguing that both alternative methods were exceedingly painful and unusual in a country where executions have overall been declining. Today, just five states — Idaho, Mississippi, Oklahoma, South Carolina and Utah — deploy firing squads for executions, while the electric chair is currently used in Alabama, Arkansas, Florida, Kentucky, South Carolina and Tennessee.

A Richland County court ruled in 2022 that both electrocution and the firing squad violated the South Carolina Constitution's provisions against cruel and unusual punishment.

Writing for the majority on July 31, Justice John Cannon Few wrote that the two methods could not be considered cruel and unusual because, rather than representing an effort to inflict pain, the execution methods represented the S.C. General Assembly's "sincere effort" to make the death penalty less inhumane while enabling the state to carry out its laws.

The full ruling in Owens v. Stirling, Opinion No. 28222 (S.C. July 31, 2024) (available here), which includes some partial dissents on certain execution methods, runs nearly 100 pages.  Because there seems to now be only a few (if any) current US Supreme Court Justices eager to police state execution methods, these kinds of state supreme court rulings are nearly certain to be the last legal word on these matters for the foreseeable future.

Notable echoes of Grants Pass reverberating throughout California

The US Supreme Court in Grants Passlast month turned away claims that the Eighth Amendment precluded charging homeless with crimes from camping/sleeping in certain areas (basics here).  There are been an array of legal and political echoes from the ruling, and this new New York Times article, headlined "Los Angeles Says It Will Not Join Newsom’s Push to Clear Encampments," details some of the notable recent developments at the state and local level in California.  Here are excerpts:

Days after Gov. Gavin Newsom put pressure on local governments to dismantle homeless encampments across California, leaders in Los Angeles County showed a united front, unanimously passing a resolution with a clear message: We will continue to take a different approach.

The vote on Tuesday by the board of supervisors, the five-member governing body of the county, reflected the deep motivation of local leaders to align themselves on strategy for a vast region that includes 88 cities and more than 75,000 homeless people. It also reaffirmed that homelessness would not be criminalized....

The motion, while absent of Mr. Newsom’s name, seemed squarely aimed at his executive order directing state agencies to begin clearing encampments from the streets. Local governments cannot be forced to uphold the decree, but they, along with many advocacy groups, rely on the state for billions of dollars in funding for homeless services and could feel pressure to comply at some point.

Mr. Newsom, perceived as a future presidential hopeful, issued the order in response to a Supreme Court ruling that allowed governments greater authority to eradicate encampments.... Some cities like San Francisco have embraced the state order, with its mayor vowing to make homeless people so uncomfortable on the streets that they accept offers of shelter beds.

Intriguing DPIC analysis of capital clemency grants over last 46 years

The Death Penalty Information Center (DPIC) recently posted here an interesting analysis of "all 82 grants of clemency to individual death-sentenced prisoners between 1977-2023, excluding mass clemency grants." Here is how D{IC summarizes its findings at the start of the analysis:

In a new analysis, the Death Penalty Information Center has found that executive officials most often cite disproportionate sentencing, possible innocence, and mitigation factors such as intellectual disability or mental illness as reasons to grant clemency in capital cases.  Ineffective defense lawyering and official misconduct are also common factors in clemency grants.  While present in fewer cases, support for clemency from the victim’s family or a decisionmaker in the original trial, such as a prosecutor or juror, appears to have a powerful impact.  Prisoners frequently offer evidence of rehabilitation and remorse at clemency hearings, but this evidence is cited less often by officials.

Here is another notable part of the DPIC's analysis:

We found that about half of cases (47.6%) had more than one stated or apparent reason for clemency, illustrating the compounding nature of legal violations and unfair practices in capital cases.  However, this did not split evenly by category: while two-thirds of possible innocence cases had possible innocence as the only apparent reason for clemency, only one rehabilitation/remorse case out of ten had that factor as the only reason.  In other words, executive officials appeared confident in citing possible innocence as the sole reason for a clemency grant, or in granting clemency when innocence was the predominant argument, but almost always relied on another justification when rehabilitation/remorse played a role in the case.

"Rescheduling Marijuana: Implications for Criminal and Collateral Consequences"

The title of this post is the title of this short document prepared by the Congressional Research Service.  The document is notable mostly for its review of marijuana's existing criminal and collateral consequences than for a review of the implication of resecheduling.  Here is the heart of the rescheduling discussions:

Many CSA penalties for marijuana violations are written specifically for marijuana and are not tied to its Schedule I classification. If marijuana moves to Schedule III, those penalties would remain the same.  Many CSA and other federal offenses associated with marijuana’s general status as a controlled substance would also remain the same....

If marijuana moves to Schedule III, most of the consequences for its use or for marijuana-related convictions would remain the same.

That said, though rescheduling will not have many certain formal legal consequences in this area, I do think it could and likely would have all sorts of practical enforcement consequences. The CRS document notes the significant enforcement changes we have seen in recent years at the federa level even without any formal legal reforms:

Over the last five years (FY2019–FY2023), the number of individuals sentenced for marijuana trafficking in federal court has declined by 66%, from 1,674 per year to 561.  This decline is even sharper when considering longer term trends. In FY2014, 3,876 individuals were sentenced in federal court for marijuana trafficking (almost seven times higher than FY2023).

A few years ago, I co-authored this paper discussing these federal enforcement trends under the title "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition."  I would expect federal marijuana rescheduling to have all sorts of (predictable and unpredictable) practical "implications for criminal and collateral consequences" in federal and state systems even if the formal legal impacts are quite modest.  

If any folks are interested in the wide array of broader legal issue connected to possible federal marijuana rescheduling, consider attending the online event next week hosted by the Drug Enforcement and Policy Center.  This event, titled "Federal Marijuana Reform: Effects and Echoes of Rescheduling," will take place on August 7, 2024 from 12 noon to 1:15 pm EDT, is described at this event page (which links to this registration page).

Why not consider some form of term limits for all federal judges, not just Supreme Court Justices?

I fully understand why the Supreme Court and its Justices get so much attention.  But I also know that anyone deeply concerned about federal jurisprudence, especially as it relates to criminal justice administration, must also attend to the work and composition of the entire federal judiciary.  After all, the Supreme court now decides only a few dozen cases each year (with only about a dozen of those criminal cases).  But, as detailed here, the federal circuit courts resolve tens of thousands of cases each year and the federal district courts resolve hundreds of thousands of cases each year.  (Of this number, nearly 20,000 federal appeals and over 100,000 federal trial court cases deal with various criminal matters.)

I am not sure if I am a supporter of term limits for Supreme Court Justices, as I see sound arguments on both sides of the debate.  But I am sure that if we are going to discuss and perhaps rework the terms of service for federal Justices, I would also like to discuss and perhaps rework the terms of service for all federal judges.  After all, as detailed here, there are many important federal judges — namely magistrate judges and bankruptcy judges — who serve for fixed terms rather than for life. 

Of course, this new Washington Post op-ed from Prez Joe Biden is raising anew these issues and others.  Here is part of his pitch for SCOTUS term limits:

What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms.  We now stand in a breach.

That’s why — in the face of increasing threats to America’s democratic institutions — I am calling for three bold reforms to restore trust and accountability to the court and our democracy....

Second, we have had term limits for presidents for nearly 75 years.  We should have the same for Supreme Court justices.  The United States is the only major constitutional democracy that gives lifetime seats to its high court. Term limits would help ensure that the court’s membership changes with some regularity.  That would make timing for court nominations more predictable and less arbitrary.  It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come.  I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.

I could certainly see benefits in making the "timing for [all federal] court nominations more predictable and less arbitrary," as well as value in "reduc[ing] the chance that any single presidency radically alters the makeup of [each federal] court for generations to come."  Consequently, I would like to see coming discussions, as the title to this post suggests, to more robustly consider possible term limits for all federal judges and not just Supreme Court Justices.

"Algorithms in Judges’ Hands: Incarceration and Inequity in Broward County, Florida"

The title of this post is the title of this article recently posted to SSRN authored by Utsav Bahl, Chad M. Topaz and others. Here is its abstract:

Judicial and carceral systems increasingly use criminal risk assessment algorithms to make decisions that affect individual freedoms.  While the accuracy, fairness, and legality of these algorithms have come under scrutiny, their tangible impact on the American justice system remains almost completely unexplored.  To fill this gap, we investigate the effect of the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) algorithm on judges’ decisions to mandate confinement as part of criminal sentences in Broward County, Florida.

Our study compiles a novel dataset of over ten thousand court records from periods before and after the implementation of COMPAS in Broward County and uses it to build a Directed Acyclic Graph (DAG) model of the confinement decision-making process.  Our approach aims to reveal potential associations between the use of COMPAS and incarceration.  We find that the many individuals deemed low risk by COMPAS are much less likely to be confined than were comparable individuals before COMPAS was in use, and similarly, individuals deemed high risk are much more likely to be confined than before.  Overall, the impact of COMPAS scores on sentencing decisions is a reduced rate of confinement for both Black and white individuals.  However, a racial bias exists within the COMPAS scores, as they are based on historical data that mirrors pre-existing racial inequities.  While the overall rate of incarceration decreases, the difference in scores exacerbates the difference in confinement between racial groups, thereby deepening racial disparity.  Insofar as criminal risk algorithms can aid decarceration, policymakers and judges alike should be mindful of the potential for increased racial inequity.

US Sentencing Commission schedules big meeting for August 8, 2024 to vote on retroactivity and priorities

As detailed in this official announcement, two weeks from today is the scheduled date for a big official public meeting for the US Sentencing Commission to take big votes on two sets of important issues. Here is the full announcement:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public meeting of the Commission is scheduled for Thursday, August 8, 2024 at 3:00 p.m. (EDT) (tentative). The meeting will be held in the Commissioner’s Conference Room of Suite 2-500 in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E. (South Lobby), Washington, D.C. The meeting will be streamed live. 

Agenda:

• Report of the Chair
• Possible Vote to Adopt April 2024 Meeting Minutes
• Possible Vote on Final 2024–2025 Policy Priorities
• Possible Vote on Retroactivity of Certain 2024 Amendments
• Adjourn

Reviewing recent developments as more states consider second-look sentencing reviews

Stateline has this new piece on the growing interest at the state level of second-look sentencing reviews.  The piece is worth a full read, though its themes are summarized in the full headline: "Efforts to release prisoners from long sentences draw new interest: But many of the proposed policies have failed this year."  Here are a few excerpts (with links from the original):

As America’s prison population both ages and increases, the “second look” movement has gained interest as a way to reduce overcrowding and potentially save money. Both Republicans and Democrats have sponsored the bills, but some advocates and prosecutors say the laws could retraumatize crime victims and further burden a strained court system.

Still, at least one second look bill, in Oklahoma, was signed into law this year. The new law, which is set to go into effect soon, requires judges to consider whether domestic violence was a mitigating factor in a crime. If so, a defendant would be eligible for a lighter sentence compared with the usual mandatory ranges....

Some sentencing experts and criminal justice advocates think second look legislation could draw bipartisan support because the measures aim to address prison overcrowding and overspending by releasing people who are least likely to reoffend.

“It can be a way to address excess spending,” said Liz Komar, sentencing reform counsel with The Sentencing Project, a nonprofit criminal justice research and advocacy group. “We can reinvest scarce public safety dollars from being uselessly employed to keep people who are zero risk in prison to instead prevent crime in the community.”

At least 12 states already have second look measures in place, according to the group’s legislative tracker. The existing second look laws vary, with some allowing courts to reconsider sentences based on conditions such as an offender’s age at the time of the offense and amount of time served, and others allowing prosecutors to request the court reconsider a sentence....

Debate over second look policies has been intense. Some prosecutors, victim rights groups and family members of crime victims have voiced concerns that victims and their families could be retraumatized by the resentencing process.

Some fear that these policies could be abused. Others worry about overburdened prosecutors having to handle an influx of resentencing cases.

US Sentencing Commission releases over 1200 pages of public comment on proposed priorities

As noted in this post last month, the US Sentencing Commission recently released a "Federal Register Notice of Proposed 2024-2025 Priorities" which suggested that the USSC was eager in this coming guideline-amendment year to take a "big-picture" look at the full fedeal sentencing system and the Commission's own work therein.  Lots of folks rightly understood that the Commission was seeking lots of input, and many responded to its request for comment.  And now the USSC has published those public comments, which in full pdf compilation runs over 1200 pages, in an accessible manner at this webpage and explained this way:

The July 2024 Compilation of Public Comment uses bookmarks as its table of contents.  A bookmark is a navigation link that displays in the side panel within Adobe Acrobat (example).  Some browsers open the bookmarks panel by default within the browser window.  If you cannot access the bookmarks panel within the browser window, it is recommended that you save the PDF and reopen it in Adobe Acrobat for easier navigation.

The Commission reviews and catalogs all public comment submissions for future reference and official recordkeeping purposes. A representative sample of public comment is carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations. 

User Tips for Mobile Devices: The Compilation of Public Comment is over 1,200 pages and more easily navigated on a desktop.  Hyperlinks below may not take mobile users to a specific letter and the bookmarks panel may not be accessible on mobile devices. 

I believe I am partially responsible for a few dozen of these many pages of comments, and I am hopeful in the coming weeks and months to flag a wide range of comments that seems especially interesting or perhaps surprising.  In the meantime, I will just say again that the Commission merits great credit for thinking big about federal sentencing and for encouraging the public to help in that endeavor.

Prior recent related post:

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

"Loper Bright and the Great Writ: Will the New Constitutionalists End 'Treason to the Constitution,' Restore the Judicial Power, and Make the Law of the Land Supreme Again?"

The title of this post is the title of this notable new paper authored by James Liebman and Anthony Amsterdam. Here is its abstract:

Chevron deference is dead.  The Court's forty-year, seventy-decision experiment with Article-III-court deference to "reasonable" agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed "the judicial Power" to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decisionmaking. "AEDPA deference" lives.  The Court's twenty-five-year, seventy-two decision experiment with Article-III-court deference to "reasonable" state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges' independent judgment that the state courts have misread or misapplied the federal Constitution in adjudicating these defendants' claims.

How can this be?  Only if state judges have more authority to make constitutional law by which federal judges may be bound than federal agencies have to make sub-constitutional law by which federal judges may be bound.  This is obviously wrong.  Federal agencies are creatures of Congress to which it may appropriately delegate some of its power to make the law that federal courts then are duty-bound to apply.  Neither Congress nor any other authority save the American people by amendment may delegate the making of constitutional law.  Constitutional text and history make the wrongness even clearer.  The Framers wrote the Constitution precisely to quell the "violence of faction" that the States exhibited under the Articles of Confederation.  They understood faction to produce "improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury." So the Framers resolved to bind "the judges in every State" to treat the Constitution as the supreme Law of the Land; and the Framers gave federal judges-protected by life tenure and irreducible salaries-"the judicial Power" to neutralize factious state-court decisions by exercising independent judgment whenever Congress gave them jurisdiction to review those decisions.

Congress, for its part, has always mandated federal-court as-of-right review of state custody on either writ of error (1789-1914) and/or habeas corpus (1867-today). And throughout more than two-and-a-third centuries, the Supreme Court has issued one federal-courts classic opinion after another, characterizing deference to Congress' or state courts' reasonable-but-wrong constitutional judgments as "treason to the Constitution."  The New Constitutionalists successfully challenged Chevron under the banner of reasserting the rule of law to protect "small" businesses and "the citizenry" against politics and special interests.  The test of their bona fides is whether they will take the same course in cases of individuals criminally sentenced to imprisonment or execution through "improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury."

Detailing backstories around effort to roll back key criminal justice reform aspects of California's Prop 47

The New York Times has this new extended article providing a lot of context (but not a lot of legal details) for the ballot measure coming before California voters to revise significantly a criminal justice reform proposition from a decade ago.  The full headline of the article details its themes: "Frustrated Californians May Be Ready for a Tougher Approach to Crime: Shoplifting and fentanyl use have tested the patience of California voters, who will decide in November whether to impose stricter laws that would lead to more incarceration."  I recommend the piece in full, and here are snippets:

Californians of all political stripes have become fed up with the problems plaguing supermarkets and retail stores, not to mention car break-ins and open-air drug use.  Some top Democrats, including Mayor London Breed of San Francisco, have joined conservatives in denouncing a cascade of smaller crimes that have contributed to a sense of lawlessness in major cities. Now the state’s lawmakers and voters are weighing what to do.

With public sentiment in the state shifting toward stiffer punishment, California finds itself debating whether to roll back decade-old changes that sharply reduced the state’s inmate count and made it a leader in reducing mass incarceration.

A coalition of law enforcement figures, business owners and relatives of fentanyl addicts want to reverse the 2014 ballot measure known as Proposition 47, which reduced penalties for shoplifting and drug possession.  That measure has been blamed so often for the state’s crime woes that it is among the few past initiatives that residents can identify by number.... With financial help from the giant retailers Target, Home Depot and Walmart, the coalition has gotten a ballot measure qualified for the November election that would impose harsher punishments for crimes that result in lighter charges or no prosecution today.

Proposition 47 reduced most drug-possession crimes to misdemeanors, and raised the threshold for thefts to be charged as felonies, to $950 in property or more.  The measure allowed people to get out of prison early if they were incarcerated under the old laws, and it reduced the number of people sent to prison.  It also funneled hundreds of millions of dollars to services for people returning home from prison, helping to reduce the rate of recidivism, according to a study by a state regulator....

The fate of Proposition 47 will be decided by California’s nearly 27 million eligible voters in November. Nearly a million people signed a petition to amend Proposition 47 by imposing tougher sentences for shoplifting and drug possession.

"U.S. Sentencing Commission Launches Interactive Resources to Illustrate Federal Prison Program Implementation"

The title of this post was the heading of an email I received this morning from the US Sentencing Commission, which came with this text and links:

The U.S. Sentencing Commission has released its second of two interactive resources providing an overview of certain Federal Bureau of Prisons (BOP) programs. These resources are aimed at policymakers, stakeholders, and the public who are interested in learning how the BOP administers the Residential Drug Abuse Treatment Program and implements the First Step Act of 2018’s earned time credits system.

Today's new resource illustrates the Residential Drug Abuse Treatment Program (RDAP), an intensive cognitive behavioral therapy program offered in some BOP facilities. It describes how RDAP participants may be eligible for and earn up to one year off their terms of imprisonment. Additionally, the resource features an interactive map of RDAP locations and program types.

Launched in January, the Commission’s first interactive BOP resource describes the implementation of the earned time credits system under the First Step Act. It outlines how incarcerated individuals may earn and apply time credits for engaging in recidivism reduction programming or productive activities. The resource also includes a glossary of terms and searchable table of offenses that prevent individuals from earning time credits under the First Step Act.

Last amendment cycle, the Commission prioritized assessing the degree to which certain practices of the BOP are effective in meeting the purposes of sentencing as set forth in 18 U.S.C. § 3553(a)(2). Both resources were published as part of this policy work. They are based on primary source documents from other government agencies, including the BOP, and are intended for informational purposes only (not as legal analysis).

Kudos to the USSC for continuing to provide ("for informational purposes only") these terrific and valuable resources.

UPDATE:  I just saw this new Forbes piece discussing the new USSC resources, headlined "US Sentencing Comm Launches Overview Of Bureau Of Prisons Programs"

Could Prez Biden's decision "to stand down" impact his use of his clemency power?

There are, of course, so many political and policy elements to President Joe Biden's decision to end him campaign for re-election or, as he put it, "to stand down and to focus solely on fulfilling my duties as President for the remainder of my term."  But, as this is a sentencing blog, I am particularly interested in considering the possible impact on sentencing politics and policy.  And the unique and historic sentencing power that all presidents possess is the constitutional power to grant clemencies or, as Article 2 of the Constitution puts it, the "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

This Axios piece from last week, headlined "Why presidents are wielding their pardon powers less and less," talked a bit about some modern clemency realities, and here are some excerpts:

A trend toward a less generous executive has emerged in U.S. clemency history.  So far, President Biden has been no exception....  But beyond sweeping proclamations, Biden has used his pardon power more sparingly than his modern predecessors on ordinary pardon cases, according to Justice Department data... Biden used them to pardon prior federal offenses of simple marijuana possession and veterans convicted and forced out of the military because of their gender identity or sexual orientation.

The big picture: Experts point to structural and political reasons for the shift toward a generally more restrained approach to clemency petitions.

Throughout U.S. history, the system has become deeply entangled in bureaucratic process, leading to a backlog of ordinary petitions, said Mark Osler, a legal scholar who advocates for sentencing and clemency reform.  What "Biden seems to be stuck with is a system of analysis that doesn't work and hasn't worked for his predecessors either," Osler said.  He pointed to a series of seven valves of review a petition must pass through — a pipeline Osler said lengthened under the Biden administration with additional input from the Domestic Policy Council.

Frank Bowman, a legal historian who has written extensively about the pardon power, cited the "nasty politics of our era" as one driving factor.  "Presidents have become hyper-cautious about making sure that they don't create the grist for the opposition mill," Bowman said.

By the numbers: President Obama granted the most acts of clemency — 1,927 pardons and commutations combined — dating back to Harry Truman, according to DOJ data.  But that's just over 5% of the petitions Obama received. As of May 2024, Biden had formally granted 153 petitions for clemency — that's 1.6% percent of all requests....

DOJ data shows that every president between Ford and Trump used his clemency power during his final days in office. Obama issued 1,185 clemency actions in just over three months in 2017 before he left office.  That's just over 61% of all of the petitions he approved.

The political concern about "creat[ing] the grist for the opposition mill" seems likely to limit Prez Biden's eagerness to grant many (or perhas any) clemencies before Election Day because his party is on the ballot, even though he is now a distinctive kind of lame duck.  But, as noted here (and likely forgotten everewhere else), in late October 2020, then-President Trump granted a few commutations a few weeks before the 2020 Election, and it is certainly possible that certain kinds of clemency grants might be seen in certain quarters as politically beneficial as the election approaches.

More obviously, after Election Day and no matter who wins, Prez Biden will be an even lamer kind of lame duck until January 20, 2025.  I presume a whole lot of advocates will be advocating for Prez Biden to make robust use of clemency at that point.  Notably, Prez Biden's son, Hunter Biden, is supposed to be go to trial on federal tax charges on September and to be sentenced on gun-related charges sometime thereafter.  When still a candidate a month ago, Prez Biden pledged not to grant a pardon or commutation to his son.  But I am inclined to guess his views may evolve on his son, especially after the election.  And more broadly, in his final months in office, I wonder if Prez Biden might be inclined to consider a broader set of potential set of clemency grants across a broad range of offenses and offenders.  I guess time will tell.  

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

The day after Joe Biden was inaugurated, I authored this post posing this question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable realities about the the federal prison population (based on BOP data) during recent presidencies: during Prez Obama's first term in office, the federal prison population (surprisingly?) increased about 8%, climbing from 201,668 at the end of 2008 to 218,687 at the end of 2012; during Prez Trump's one term, this population count (surprisingly!) decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021. 

Prison releases and the slow-down in justice systems in 2020 in large part account for most of the dramatic drop in the federal prison population during Prez Trump's time in office, but I believe federal incarceration level had dropped over 5% in the Trump Adminstration years before COVID.  Updating this tale of a particular incarceration metric, the BOP website now reports, as of July 11, 2024, that there are "158,479 Total Federal Inmates."   In other words, federal incarceration has increase 4.5% during Prez Biden's term in office, so far.

I raise these notable (and rarely reported or discussed) data in part because the ACLU has today released this detailed 14-page memo titled "Trump on the Criminal Legal System" which carries the subtitled "Threatening a New Era of Mass Incarceration."  Here is how this memo begins and ends, which highlights its tone throughout:

A second Trump administration threatens to accelerate mass incarceration, further dehumanize people in our criminal legal system, engage in a death penalty “killing spree,” and reverse many reforms gained over the last two decades.

Trump’s proposals are dangerous on two levels.  First, with respect to the federal system, Trump will seek to double down on the failed policies of the past: encouraging brutal policing practices, pursuing extreme sentences, and expanding the use of the death penalty.  Second, Trump’s racist and extremist rhetoric may embolden states that have previously embraced reform to return to failed crime policies, fueling mass incarceration and widening racial inequality....

The ACLU will defend against Trump’s efforts to bring in a new wave of mass incarceration, including by fighting against his attempts to encourage police abuses, grow our federal prison population — going so far as to reincarcerate people in home confinement — and expand the federal death penalty. We will advocate for congressional oversight to prevent potential harms threatened by Trump. And we will take a Trump administration to court if necessary to protect our civil liberties.

While we defend the hard-won reforms from the last few years to improve the system, we will also continue our long-term fight to end the country’s carceral epidemic and advocate for our long-term vision of public safety.

I do not want to suggest criminal justice reform advocate are wrong to worry about possible future policies of a second Trump Administration.  But, with a focus on the federal prison population and sentencing realities, I still think it critical to note that many  "hard-won reforms from the last few years" came during the Trump Adminstration in the form of the First Step Act (as well as the CARES Act). 

I expected to see federal incarceration levels to increase in Prez Trump's first term, and so I do not think it misguided for refrom advocates to be concerned about the potential for increases in another Trump term.  But the actual data of federal prison populations should serve as a reminder that almost all criminal justice stories are predictable unpredictable.  And I still strongly believe there are many important opportunities to build the kind of bipartisan reforms that culminated in the First Step Act and more recently in the Federal Prison Oversigh Act.   But maybe that's my naive optimism kicking in again.

Ninth Circuit grants en banc rehearing of panel ruling that federal felon-in-possession criminal law is unconstitutional

As discussed in this post, a couple months ago, a split Ninth Circuit panel handed down a major Second Amendment ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2024) (available here), finding that the Supreme Court's Bruen ruling renders unconstitutional federal law's criminal prohibition on gun possession by nonviolent felons.  Now, as set forth here, yesterday a "vote of a majority of nonrecused active judges ... ordered that this case be reheard en banc."  Judge VanDyke issued a 12-page dissent from the grant of rehearing en banc that is worth a full read.  Here is an excerpt:

Nothing in the Supreme Court’s recent Rahimi decision controls or even provides much new guidance for these [felon-in-possession] cases, which is undoubtedly why the federal government took the unusual step of asking the Court to review one or more of these pending cases immediately after Rahimi instead of following the Court’s usual practice of GVRing (granting, vacating, and remanding) related cases.  It’s also why the original panel in this case, after careful consideration, saw no reason to modify our opinion after Rahimi came down.  But the Supreme Court rejected the government’s request and kicked the can down the road, GVRing all the pending Section 922(g)(1) decisions and instructing the lower courts to take another look at them in light of Rahimi.

The Supreme Court’s docket this next term is no doubt full of important issues to decide, and this delay-the-inevitable approach to pressing Second Amendment questions would be just fine if the circuit courts were populated with judges committed to faithfully applying the considerable instruction already provided to us by the Court.  But that is clearly not the case.  In this circuit, you could say that roughly two-fifths of our judges are interested in faithfully applying the totality of the Supreme Court’s Second Amendment precedent when analyzing new issues that have not yet been directly addressed by the Court.  The other 17/29ths of our bench is doing its best to avoid the Court’s guidance and subvert its approach to the Second Amendment.  That is patently obvious to anyone paying attention. To say it out loud is shocking only because judges rarely say such things out loud.... 

Section 922(g)(1) applies to anyone “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1).  This applies to the many felons whose crime or conduct show they pose a “clear threat of physical violence to another.” Rahimi, 144 S. Ct. at 1901.  But it equally applies to felons who have no history of or expected propensity towards violence, like Martha Stewart.  When assessing the burden on the Second Amendment right imposed by the surety and affray laws, the Court in Rahimi found it key that the laws “involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon.” Id. at 1902.  This tracks the view of scholars who have linked these historical laws to a principle of disarming those who pose a threat of physical violence to another.  Here the government not only failed to show that Duarte “likely would threaten or had threatened another with a weapon.” Id.  It conceded he has no history of violence.  Duarte, 101 F.4th at 663 n.1. 

En banc Fifth Circuit rejects claim Mississippi's lifetime felon disenfranchisement violates Eighth Amendment

As noted in this prior post, last year a split Fifth Circuit panel ruled in Hopkins v. Hosemann,,  No. 19-60662 (5th Cir. Aug. 4, 2023) (available here), that Mississippi's disenfranchisement for life of persons with certain felony convictions "is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment."  In that post, I predicted that the panel ruling would likely be considered (and reversed) en banc, and that very predictable outcomes because a reality today with an opinion in Hopkins v. Watson,  No. 19-60662 (5th Cir. July 17, 2024) (available here).  Here are excerpts from the start of the majority opinion:

This en banc court convened to reconsider a panel decision holding that Section 241 of the Mississippi Constitution, which disenfranchises those convicted of certain felony offenses,1 fails the test of the Eighth Amendment, as incorporated by the Fourteenth Amendment’s Due Process Clause.2 We reject that result because the United States Constitution cannot properly be so interpreted.  The Supreme Court, in Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655 (1974), reaffirmed a body of constitutional law expressly permitting States to enact felon disenfranchisement. And even if modern jurisprudence under the Eighth Amendment is applicable, which it is not, the case law cannot be stretched to outlaw Section 241....

Laws like Mississippi’s Section 241 have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection Clause does not bar States from permanently disenfranchising felons, it dispensed some advice to the losing parties:

We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them. . . . But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people . . . . will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument. Richardson v. Ramirez, 418 U.S. at 55, 94 S. Ct. at 2671.

In other words: go and convince the State legislatures.  Do the hard work of persuading your fellow citizens that the law should change.  The paramount lesson of the Constitution and Richardson is that the changes sought by Plaintiffs here can and must be achieved through public consensus effectuated in the legislative process, not by judicial fiat.  

The dissent begins this way:

The right to vote is the essence of a democratic society and “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Yet Article XII, Section 241, of the Mississippi Constitution of 1890 mandates permanent, lifetime disenfranchisement of a person convicted of “murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.”  Disenfranchisement extends to free people who have completed all terms of their sentences.  The Plaintiffs, representing a class of persons who have been convicted of Section 241’s crimes and have completed the terms of their sentences, challenge the constitutionality of Section 241. The Plaintiffs are both Black and White, and their Eighth Amendment argument is independent of the “invidious” discrimination that originated Section 241.  Rather, the Plaintiffs argue permanent disenfranchisement of free persons who have completed all terms of their sentences constitutes cruel and unusual punishment in violation of the Eighth Amendment.  Under well-settled principles of Eighth Amendment jurisprudence, the Plaintiffs have met their burden. A national consensus to this effect has now formed among a large majority of the states. 

Prior related posts:

• Split Fifth Circuit panel rules that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment
• Finding broader Eighth Amendment echoes from Fifth Circuit's ruling that lifetime felon disenfranchisement is unconstitutional 
• En banc Fifth Circuit to review panel ruling that lifetime felon disenfranchisement is unconstitutional under Eighth Amendment 

"The Excessive Fines Clause in the Federal Courts: A Quarter-Century of Narrowing"

The title of this post is the title of this recent article by Michael O'Hear posted a couple months ago to SSRN. Here is its abstract:

The Eighth Amendment prohibits “excessive fines,” but what exactly does “excessive” mean?  The question has taken on some urgency in recent years as American legislatures have sharply increased the economic penalties associated with criminal convictions.  In 1998, in United States v. Bajakajian, the Supreme Court for the first time established a test of sorts to determine whether an economic penalty is “excessive” in violation of the Eighth Amendment.  The test was not without its ambiguities but offered some potentially robust protection against the rising tide of fines, fees, forfeiture, and restitution.  However, the promise of Bajakajian has been undermined in the lower courts.

This Article presents the first systematic analysis of how Bajakajian has been interpreted and applied by the federal circuit courts of appeals.  The Article shows that, at practically every turn, the circuit courts have adopted narrowing interpretations of Bajakajian, which have largely negated the practical significance of the Eighth Amendment ban on excessive fines.  Indeed, in some important respects, the circuit-court opinions more closely resemble the dissenting than the majority opinion in Bajakajian.  The Article concludes with a consideration of what the Supreme Court might do in response to the circuit-court cases, from acquiescence to simple reaffirmation of Bajakajian to the development of an even more robust and easily enforceable approach to the Eighth Amendment right. 

Have "Republicans Have Completely Abandoned Criminal Justice Reform"?

The quesiton in the title of this post is drawn from the statement quoted above that serves as the headline of this lengthy new Reason piece.  Here are excerpts:

The Republican Party wants you to be afraid. Very, very afraid.  Under former President Donald Trump, the party is playing up fears of violent crime, even as crime rates have fallen from their pandemic-era spike. And in the process, it is abandoning the modest yet meaningful moves toward criminal justice reform it made in recent years.

This much was clear on the second night of the 2024 Republican National Convention (RNC), whose theme was "Make America Safe Again." Several of the presenters spoke of the need to get tough on crime.

"We are experiencing a plague of crime across America," said retired police Lieutenant Randy Sutton. "It's all made America more dangerous than ever before." Florida Gov. Ron DeSantis charged that Democrats, like President Joe Biden, "have unleashed progressive prosecutors across our nation who care more about coddling criminals than about protecting their own communities."...

While Trump bragged about signing the FIRST STEP Act and ran ads in 2020 touting his ability to accomplish criminal justice reforms, he had soured on the law by the end of his term. By the time he announced his bid for reelection in 2022, Trump had stopped talking about the bill altogether and was calling for anyone "caught selling drugs, to receive the death penalty." Some Republican-led states that implemented reforms are now repealing them, even in places where the measures were successful.

The FIRST STEP Act was not only one of the most successful reform initiatives in recent years, but it represented a truly bipartisan effort — progressive activist Van Jones still brags about working with Republicans to get it passed — but it became verboten in GOP circles.

The 2024 GOP platform makes no mention of criminal justice reform and instead pledges to "restore law and order," "stand up to Marxist Prosecutors," and "restore safety in our neighborhoods by replenishing Police Departments, restoring Common Sense Policing, and protecting Officers from frivolous lawsuits" — presumably a reference to Trump's stated pledge to give cops "immunity from prosecution."

On the second night of the RNC, with immigration and crime as its theme, speakers stuck to the party line: Many presenters spoke of immigration and crime as if they are inextricably linked, and nobody mentioned criminal justice reform, other than one mention of "comprehensive prison reform" by Republican National Committee co-Chair Lara Trump as one of Trump's first-term accomplishments.

It is clear that Trump has always been eager to tout a "law-and-order" message, and it also seemc clear that many GOP official and candidate are eager to use crime and punishment as a wedge political issue. But I still see some nuances here, with a lot of the crime talk linked to immigration themes and progressive prosecutors being more of a focal point that progessive policies like the First Step Act.  And yet, while we have not heard any recent GOP calls for repeal the First Step Act (as we heard from Gov DeSantis when we was seeking the nomination), I am not expecting Senator Vance tonight or candidate Trump tomorrow to pledge to work on the Second Step Act.  

"Post-Chevron, Good Riddance To The Sentencing Guidelines"

The ttile of this post is the title of this notable new Law360 commentary authored by Mark Allenbaugh, Doug Passon and Alan Ellis. The extended piece covers a lot of ground at the intersection of administrative law and the guidelines, and here is a snippet from its first section:

The Supreme Court's decision in Loper Bright Enterprises v. Raimondo, overturning the Chevron doctrine, raises a critical and long overlooked question: What, if any, deference is now owed to the guidelines themselves?

Over the past few years, significant splits have developed among many federal district courts and appeals courts with respect to the deference courts should afford both to the guidelines proper, and to their commentary.

Loper Bright is certain to add to the disarray. Accordingly, it is imperative that the court step in quickly to resolve this building crisis.

We argue that, in their current form, the guidelines should not be afforded any deference for two primary reasons.  First, although the guidelines were originally designed to be binding, their binding nature has since been ruled unconstitutional. Yet the commission has not revised the guidelines to account for their now-advisory nature.

Second, in their current form, they actually promote the exact opposite of the various policy goals they were intended to achieve — namely, to provide certainty, proportionality and uniformity in sentencing, while taking into account the population capacity of the Federal Bureau of Prisons.

Prior related post:

• Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law

US Supreme Court stays Texas execution minutes before scheduled lethal injection

As reported in this AP article, the "U.S. Supreme Court granted a stay of execution for a Texas man 20 minutes before he was to receive a lethal injection Tuesday evening.  The inmate has long maintained DNA testing would help prove he wasn’t responsible for the fatal stabbing of an 85-year-old woman during a home robbery decades ago."  Here is more:

The nation’s high court issued the indefinite stay shortly before inmate Ruben Gutierrez was to have been taken to the death chamber of a Huntsville prison.

Gutierrez was condemned for the 1998 killing of Escolastica Harrison at her home in Brownsville in Texas’ southern tip. Prosecutors said the killing of the mobile home park manager and retired teacher was part of an attempt to steal more than $600,000 she had hidden in her home because of her mistrust of banks.

Gutierrez has sought DNA testing that he claims would help prove he had no role in her death. His attorneys have said there’s no physical or forensic evidence connecting him to the killing. Two others also were charged in the case.

The high court’s brief order [available here], released about 5:40 p.m. CDT, said its stay of execution would remain in effect until the justices decide whether they should review his appeal request. If the court denies the request, the execution reprieve would automatically be lifted....

Gutierrez has had several previous execution dates in recent years that have been delayed, including over issues related to having a spiritual adviser in the death chamber. In June 2020, Gutierrez was about an hour away from execution when he got a stay from the Supreme Court.

In the most recent appeal, Gutierrez’s attorneys had asked the Supreme Court to intervene, arguing Texas has denied his right under state law to post-conviction DNA testing that would show he would not have been eligible for the death penalty. His attorneys argued that various items recovered from the crime scene — including nail scrapings from Harrison, a loose hair wrapped around one of her fingers and various blood samples from within her home — have never been tested....

Prosecutors have said the request for DNA testing is a delay tactic and that Gutierrez was convicted on various pieces of evidence, including a confession in which he admitted to planning the robbery and that he was inside her home when she was killed. Gutierrez was convicted under Texas’ law of parties, which says a person can be held liable for the actions of others if they assist or encourage the commission of a crime.

"Confronting Failures of Justice: Getting Away with Murder and Rape"

The title of this post is the title of this notable forthcoming book authored by Paul Robinson, Jeffrey Seaman and Muhammad Sarahne.  The authors have posted the front matter and Chapter 1 of the text here at SSRN, where one can also find this abstract:

Most murderers, rapists, and other serious criminals escape justice in America. Legal academia has traditionally focused on the problem of injustice, where the legal system punishes wrongly through punishing the innocent or over-punishing the guilty.  But the problem of failures of justice, where the legal system fails to punish criminal offenders, has been largely ignored.  This is unfortunate because, as the book discusses, the damage caused by unpunished crime is immense, and even worse, falls disproportionately on vulnerable poor and minority communities, thus damaging equity as well as justice.  Regular failures of justice increase crime by undermining deterrence and the criminal justice system’s credibility with the community as a moral authority.  A government that allows rampant failures of justice is ignoring one of its most basic duties.  No society should allow its members to be murdered, raped, and robbed without consequence.  Yet that is what the American legal system does in most cases.  Confronting Failures of Justice dares to ask why getting away with murder and rape is the norm, not the exception, in America.

The book’s seventeen chapters tour nearly the entire criminal justice system, examining the rules and practices that regularly produce failures of justice in serious criminal cases.  Topics covered include flawed police investigations, inadequate financing, statutes of limitation, judicial restrictions on investigation, failures to utilize new technology, the exclusionary rule, speedy trial rules, pretrial release, plea bargaining, sentencing procedures, early release on parole, executive clemency, witness intimidation, police-community relations, non-enforcement policies, distributive principles, and more.  Each chapter outlines the nature and extent of justice failures caused by the rule or practice, provides real-world examples, and describes the competing societal interests upheld or neglected by the status quo. Finally, each chapter reviews proposed or implemented reforms that could balance the competing interests in a less justice-frustrating manner and recommends one — sometimes completely original — reform to improve the system.

A systematic study of failures of justice is long overdue.  Now for the first time, scholars, students, policymakers, and citizens have a comprehensive guide to the problem — and possible solutions.

Split Fifth Circuit panel holds that "changes in the law" can be a basis for sentence reduction under § 3582(c)(1)(A)(i)

A helpful colleague made sure I did not miss a notable new panel decision from the Fifth Circuit in US v. Jean, No. 23-40463 (5th Cir. July 15, 2024) (available here).  The case concerns the long-simmering question of whether "changes in the law" can provide a basis for a sentence reduction under § 3582(c)(1)(A)(i), and this appeal concerns review of a reduction granted before the new US Sentencing Commission amended guideline was applicable.  Both the facts and reasoning in Jean are worth reading in full, but here are a few key passages from the majority opinion:

The question before the court is a simple one: does a sentencing court have the discretion to hold that non-retroactive changes in the law, when combined with extraordinary rehabilitation, amount to extraordinary and compelling reasons warranting compassionate release?  Considering this question carefully, we answer it in the affirmative.

We explain first the discretion afforded to a sentencing court.  With this discretion in mind, we conclude that there is no textual basis for creating a categorical bar against district courts considering non-retroactive changes in the law as one factor.  Next, we explain that our precedent does not prevent us from reaching this outcome.  Nor is this outcome inconsistent with other unpublished decisions from this court. And finally, we explain that, although the Sentencing Commission’s November 1, 2023 Amendments are not binding on appeal, the Amendments support the outcome we reach today....

In deciding the same question before us, the United States Court of Appeals for the Ninth Circuit in United States v. Chen concluded that “[t]o hold that district courts cannot consider non-retroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done.” 48 F.4th 1092, 1098 (9th Cir. 2022).  We agree.  Congress has never wholly excluded the consideration of any factors. Instead, it appropriately “affords district courts the discretion to consider a combination of ‘any’ factors particular to the case at hand.” Id....

It is within a district court’s sound discretion to hold that nonretroactive changes in the law, in conjunction with other factors such as extraordinary rehabilitation, sufficiently support a motion for compassionate release. To be clear, it is also within a district court’s sound discretion to hold, after fulsome review, that the same do not warrant compassionate release. For this court to hold otherwise would be to limit the discretion of the district courts, contrary to Supreme Court precedent and Congressional intent. We decline the United States’ invitation to impose such a limitation. And, of course, district courts are now guided by the November 1, 2023 Amendments in future cases.

The dissent authored by Judge Jerry Smith starts this way:

The kindest thing I can say about the majority’s zealous1 opinion is that it is a horrifying violation of this court’s well-respected rule of orderliness. I respectfully dissent.

What might a Vice President JD Vance mean for criminal justice reform and drug policy?

Former President Donald Trump, in a post on Truth Social today, stated that he has "decided that the person best suited to assume the position of Vice President of the United States is Senator J.D. Vance of the Great State of Ohio.”  Senator Vance graduated from The Ohio State University just 15 years ago; if elected, I think he would be one of the youngest Vice Presidents in US history.

I mention Senator Vance's age in part because I think his relative youth makes him relatively more likely to be supportive of criminal justice reform.  He was literally a child in the "tough on crime" political era of the 1980s and early 1990s.  But, of course, age does not define perspective, and he seems to have said relatively little about crime and punishment issues (beyond immigration) in his political rise.  Interestingly, the issue section of his 2022 Senate campaign website has a paragraph headed "Combat Drug and Opioid Epidemic" that concludes this way:

I’ll work to tackle the drug epidemic, eliminate the drugs coming into our community, and help those devastated by addiction.  America is a country of second chances, and I’m proud to say that people in my own family have struggled with addiction for a decade before coming out on the other side of it.  We need to ensure more second chances for Ohioans from all walks of life.

Talk of "second chances" is often heard from criminal justice reforms advocates, though here Senator Vance seems to be focused on those struggling with drug addition. (But, of course, many folks struggling with opioid and other drug addictions are often violating various criminal laws.)

Speaking of drugs and drug policy, I think Senator Vance's history with tech billionaire Peter Thiel is notable in this context.  This Forbes piece discusses some of the history: 

Billionaire PayPal co-founder Peter Thiel was a big supporter of Vance during his Senate run, donating about $15 million — the largest amount ever to boost an individual Senate candidate, according to Politico — to support Vance, who said in March Thiel is “a very fascinating and knowledgeable person” he likes to bounce ideas off of.

A one-time Thiel employee, Vance rose to prominence in 2016 when his memoir chronicling the social, economic and cultural effects of manufacturing’s decline in the Ohio town he grew up in, “Hillbilly Elegy,” was released.

Though I do not follow the drug reform investing space closely, I believe Peter Thiel has actively invested in marijuana reform companies and vocally supported legalization. I also think he has invested in psychedilic therapy business and a pro-doping version of the Olympics.  I suspect Senator Vance has and will continue to distance himself from some of Thier's views, but I also suspect anyone bringing more of a free-market view on drugs into a future Trump Administration could shake up federal drug policy.

Some recent related posts:

• Should sentencing reform advocates have a rooting interesting in Donald Trump's running mate selection? 
• A distinct project for 2025 focused on criminal justice reform 

Are all past and present "special counsel" prosecutions now subject to new scrutiny?

I am not an expert or even knowledgeable concerning all the legal arguments that surround the appointment of special federal counsel to prosecute various notable persons under not-so-special federal criminal law.  But I do know that former President Donald Trump is not the only person currently being prosecuted by a "special counsel," and so his lawyers are not the only one sure to be reading closely this new 93-page opinion by US District Judge Cannon.  Here is the start and a portion of the introduction from her opinion:

Former President Trump’s Motion to Dismiss Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order.  The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution. U.S. Const., Art. II, § 2, cl. 2. Special Counsel Smith’s use of a permanent indefinite appropriation also violates the Appropriations Clause, U.S. Const., Art. I, § 9, cl. 7, but the Court need not address the proper remedy for that funding violation given the dismissal on Appointments Clause grounds. The effect of this Order is confined to this proceeding....

Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution?  After careful study of this seminal issue, the answer is no.  None of the statutes cited as legal authority for the appointment — 28 U.S.C. §§ 509, 510, 515, 533 — gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise. 

The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers.  The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers.  If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so.  He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.

My assumption is that the US Justice Department will appeal this ruling to the Eleventh Circuit, and that this case could (soon?) get to the Supreme Court.  But this Wikipedia entry reminds me that at least a half-dozen special counsel have been appointed over the last quarter century and have secured some (now-suspect?) convictions and sentences.   Most notably and most recently, I believe Hunter Biden's recent convictions on three counts following a jury trial were secured by special counsel David Weiss.  Hunter Biden's lawyers likely will need to consider raising Judge Cannon's opinon in some way in their work (perhaps even before the upcoming sentencing).  Moreover, if a past special counsel prosecution is now deemed unconstitutional, I would if there could be a basis for seeking to vacate past conviction in order to avoid legal collateral consequences and maybe even a basis for constitutional tort litigation. 

Of course, there are all sorts of barriers for anyone previously convicted to get the benefit of any new constitutional rulings, especially rules of procedure (which this seems to be).  Still, because every special counsel situation involves a high-profile matters, perhaps we should expect at least some high-profile echoes from this ruling even if it is swiftly appealed.

US Sentencing Commission this morning conducting "Public Hearing on Retroactivity" for its proposed 2024 guideline amendments

As detailed in this official notice, the United States Sentencing Commission is scheduled this morning to begin a public hearing "for the Commission to gather testimony from invited witnesses concerning whether to designate as retroactive certain 2024 guideline amendments relating to acquitted conduct, firearms, and drug offenses."

The USSC published some of the first round of public comments here, and it is allowing reply comment to be submitted (through the Public Comment Submission Portal) by July 22, 2024.  And, as previous noted, the Commission has published its staff's analysis of the impact of certain 2024 amendments if made retroactive at this link.

This USSC webpage provides the video link to watch the hearing, which is scheduled to run from 9am to 12:15pm, as well as the full "Agenda and Witness Statements."  I am not sure I will have a chance to listen to the full hearing, but I am going to try to listen to the first two panels focused on the acquitted conduct amendment. 

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

In this post from last month, I highlighted that the Drug Enforcement and Policy Center at The Ohio State University had started releasing episodes from Season Two of the "Drugs on the Docket" podcast.  (All of the first season's episodes are all still available via Apple Podcasts and YouTube, where you can also find prior Season 2 episodes as well.)   Now, as detailed on this podcast webpage, we just recently released the fourth episode of this new season. which I consider absolutely fascinating on a number of fronts because it covers the intersections of constitutional right and jurisprudence and modern drug enforcement law and policy.  Here is the episode's description along with some notable show notes from the podcast website:

Season 2 Episode 4 – “The Constitution of the War on Drugs” with David Pozen

In this episode, host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, speak with author and professor David Pozen to discuss his new book, The Constitution of the War on Drugs. In this groundbreaking work, Pozen provides a comparative history lesson on U.S. court cases in which constitutional arguments for drug rights were or were not employed, explains how the Constitution helped to legitimate and entrench punitive drug policy, and offers a constitutional roadmap to drug policy reform that may yet prevail in an increasingly originalist-leaning federal court system.

David Pozen is Charles Keller Beekman Professor of Law at Columbia Law School.

Show notes:

• Purchase The Constitution of the War on Drugs
• Access a free copy of The Constitution of the War on Drugs
• Balkinization blog symposium on The Constitution of the War on Drugs
• Read Perspectives on The Constitution of the War on Drugs: A Collection of Posts from the Balkinization Blog

Because there is so much richness in this podcast discussion and throughout the book, I am disinclined to here highlight any one aspect of the constitutional discussions. And yet, for sentencing fans, I will still flag that Chapter 4 of the book focuses on punishment issues and the Eighth Amendment, closing with this observation and teaser:

Even as American jurists have insisted that scrutinizing the severity of prison sentences is an invitation to lawlessness, the rest of the world has determined that a significantly more ambitious and demanding version of proportionality — one that eschews categorical rules in favor of structured balancing — is a foundation stone of the rule of law. Applying this version of proportionality, apex courts in Africa, Asia, Europe, North America, and South America have limited the penalties that may be applied to a growing set of drug users.  In the concluding chapter, I will return to these cases and to the question of what they might teach the United States.

A distinct project for 2025 focused on criminal justice reform

This past week I saw a notable policy document from the Justice Action Network, titled "Federal Criminal Justice Reform: Options For Policymakers 2025-2029."  This 28-page document aspires to serve "as a guide for actionable policies, with bipartisan support, that will make the criminal justice system more safe, accountable, and fair for incarcerated people, the professionals who work in the criminal justice system every day, and the public."  Here are a few portions of the report's executive summary that focus on sentencing and corrections and reentry topics:

• Evidence-based sentencing reform: the EQUAL Act, the Smarter Sentencing Act, the First Step Implementation Act, bringing back federal parole, reforming the executive clemency process, and strengthening the Juvenile Justice and Delinquency Prevention Act will ensure expensive prison space is prioritized for violent offenses.

• Increasing prison oversight and effectiveness: the Federal Prison Oversight Act and ending or significantly limiting solitary confinement will ensure that prisons are safe for incarcerated people and staff, protecting rights and safety.

• Reducing barriers to reentry: the Due Process Continuity of Care Act, the Reentry Act, the Improving Mental Health in Re-Entry System Act, and the Safer Supervision Act will ensure that people are ready to return to their communities when they leave jail or prison.

• Reducing collateral consequences of incarceration: the Clean Slate Act, the Fresh Start Act, the Begin Again Act, the Driving for Opportunity Act, restoring SNAP and TANF to formerly incarcerated people, ending the ban on drivers’ license suspension for drug offenses will ensure that people who have successfully reintegrated truly get a second chance.

Should sentencing reform advocates have a rooting interesting in Donald Trump's running mate selection?

Almost exactly eight years ago today, I posted here under the title "Scouting Mike Pence on criminal justice: likely Trump VP pick with notably mixed reform record."  Sixth month later, after Mike Pence became Vice President, I had this post asking "Is VP Pence going to be a key player for possible federal sentencing reform?".  These posts serve as a kind of backstory reminder that a presidential candidate's pick of a running mate might be, or might not be, a matter of interest and concern for advocates of criminal justice reforms.  

Of course, I bring this up because it seem we may be only days away from Donald Trump picking a new running mate.  This new NBC News piece, headlined "Trump teases his VP pick timing and names 4 finalists," provides this account of timelines and possibilities:

Former President Donald Trump on Friday said that he'd like to announce his vice presidential running mate next week, potentially during the Republican National Convention, and named four key allies as potential picks.

"I’d love to do it during the convention, which would be you know, or just slightly before the convention, like Monday, love to do it on Tuesday or Wednesday, actually, but for a lot of complex reasons that you people understand, pretty much don’t do that," Trump told "The Clay Travis & Buck Sexton Show."

Trump has been in no rush to reveal his running mate, more than happy to cede the spotlight to the Democratic Party, which is embroiled in the fallout of President Joe Biden's rough debate performance. The former president has a rally scheduled for Saturday evening in western Pennsylvania.

Trump indicated, as NBC News has reported previously, that his VP short list includes GOP Sens. Marco Rubio of Florida and JD Vance of Ohio and North Dakota GOP Gov. Doug Burgum. He also named Sen. Tim Scott, R-S.C., as having been "fierce and great" during a recent television appearance. "We have a very good bench,” the former president said.

He also shed light on the vetting process, calling it a "highly sophisticated version of 'The Apprentice,'" referring to the popular reality TV show Trump hosted in the 2000s. Still, Trump described his decision-making process as, "ultimately ... more of an instinct."

I know Senator Scott has been an advocte for some policing reforms, and that both Senators Scott and Rubio voted for the First Step Act and other federal reforms that have garnered bipartisan approval. In addition, I believe Governor Burgham, who gets much love from me thanks to his first name, signed into law a number of modest criminal justice reforms for North Dakota. And Senator Vance has asserted that "We live in a third world country with a two-tiered justice system."

Though I have seen many political pundits assert that VP picks do not really move the needle as to election outcomes, I am still inclined to believe that a VP can prove meaningful and perhaps even consequential on some policy matters (especially when the president may be inclined to take various paths on a particular policy issue).  So, to repeat the question in the title of this post:

Should sentencing reform advocates have a rooting interesting in Donald Trump's running mate selection?

"The Demand for Democracy in Sentencing"

The title of this post is the title of this new essay now available via SSRN authored by Con Reynolds and Judge Carlton Reeves (who are, as noted at SSRN, "currently employed by and/or appointed to lead the United States Sentencing Commission). Here is its abstract:

In making the federal sentencing guidelines advisory, Booker v. United States made the influence of those guidelines dependent on their perceived legitimacy.  This Article argues that, given the link between law's legitimacy and its democratic character, Booker should be read as a demand for democracy in sentencing. This demand echoes the one imbued in the U.S. Sentencing Commission's statutory charter, which gives the agency unique potential to create administrative governance that is of the people, for the people, and by the people.  In detailing past and present efforts to fulfill that potential, this Article invites readers to assist the Commission in its continuing pursuit of more democratic sentencing policy.

"Past, Prologue, and Constitutional Limits on Criminal Penalties"

The title of this post is the title of this new article authored by Maria Hawilo and Laura Nirider recently published in the Journal of Criminal Law and Criminology. (I just came across this article thanks to this new Slate commentary by Kyle Barry and Maria Hawilo titled "How States Can Undo One of This Supreme Court Term’s Most Egregious Decisions.") Here is the journal article's abstract:

Most criminal prosecutions occur at a level that is both neglected by many legal scholars and central to the lives of most people entangled in the criminal legal system: the level of the state. State v. Citizen prosecutions, which encompass most crimes ranging from robbery to homicide, are governed both by the federal constitution and by the constitution of the prosecuting state.

This is no less true for sentences than for prosecutions. When it comes to sentences, state courts are bound by the Eighth Amendment to the United States Constitution, which famously proclaims that no American shall be subjected to “cruel and unusual punishment.” But state constitutions may go further than the federal constitution. States may adopt constitutional provisions analogous to the Eighth Amendment that establish even more effective guards against unreasonable or vindictive punishments.

One state — Illinois — has so chosen.  At Illinois’s most recent constitutional convention in 1970, a group of statewide delegates agreed to reconsider the limits set by the state’s constitution on criminal punishments.

From that convention emerged a revolutionary idea: that Illinois should adopt in its constitution the strongest known language in the nation limiting a government’s ability to mete out extreme punishments to those citizens who have transgressed the criminal law — and clearly identifying the purpose of those criminal sentences as rehabilitation. Thus was born what appears in Illinois’s constitution today: the so-called proportionate-penalties clause.  That clause, codified in 1970 as Article 1, Section 11 of the Illinois Constitution, proclaims that “all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. No conviction shall work corruption of blood or forfeiture of estate. No person shall be transported out of the State for an offense committed within the State.”

This Article traces the origins of the proportionate-penalties clause back to the 1970 constitutional convention, using floor debate transcripts and other contemporaneous sources to establish that its authors did, indeed, intend Illinois sentences to serve rehabilitative purposes.  To interrogate the context of those documents, this Article also examines the surrounding historical events of late 1960s-era Chicago, as well the lives and identities of the delegates who propelled this clause forward.

This Article uses the authors’ words as prescient calls for a new interpretation of the proportionate-penalties clause that hews to their vision — and that can serve as a model for rethinking the guardrails around criminal punishments nationwide.  Indeed, a constitutional scheme that insists that criminal penalties be directed at rehabilitative ends can and must carry implications for many of the statutes and rules that sustain our current system of mass incarceration.

Congress passes Federal Prison Oversight Act after Senate approves bill by unanimous consent

In these partisan times, Congress has shown yet again that some forms of criminal justice reform can garner not just bipartisan support, but near unanimous support.  This AP article, headlined "Congress OKs bill overhauling oversight of troubled federal Bureau of Prisons," reports on the latest notable variation of this story at the federal level:

The Senate passed legislation Wednesday to overhaul oversight and bring greater transparency to the crisis-plagued federal Bureau of Prisons following reporting from The Associated Press that exposed systemic corruption in the federal prison system and increased congressional scrutiny.

The Federal Prison Oversight Act, which the House passed in May, now goes to President Joe Biden to be signed into law. It establishes an independent ombudsman for the agency to field and investigate complaints in the wake of rampant sexual abuse and other criminal misconduct by staff, chronic understaffing, escapes and high-profile deaths.

It also requires that the Justice Department’s Inspector General conduct risk-based inspections of all 122 federal prison facilities, provide recommendations to address deficiencies and assign each facility a risk score. Higher-risk facilities would then receive more frequent inspections.

Sen. Jon Ossoff, D-Ga., introduced the bill in 2022 while leading an investigation of the Bureau of Prisons as chair of the Senate Homeland Security Committee’s subcommittee on investigations. It passed unanimously Wednesday without a formal roll call vote, meaning no senator objected.

Ossoff and the bill’s two other sponsors, Judiciary Committee Chair Sen. Dick Durbin, D-Ill., and Sens. Mike Braun, R-Ind., launched the Senate Bipartisan Prison Policy Working Group in February 2022 amid turmoil at the Bureau of Prisons, much of it uncovered by AP reporting. Reps. Kelly Armstrong, R-N.D., and Lucy McBath, D-Ga., backed the House version of the bill.

In a statement, Ossoff called Wednesday’s passage “a major milestone” and that his investigation had “revealed an urgent need to overhaul Federal prison oversight.”

Advocates for incarcerated people also praised the bill’s passage. “After all the headlines, scandals, and controversy that have plagued the Bureau of Prisons for decades, we’re very happy to see this Congress take action to bring transparency and accountability to an agency that has gone so long without it,” said Daniel Landsman, the vice president of policy for the advocacy group FAMM.

Jonathan Zumkehr, the union president at a federal prison in Thomson, Illinois, said the legislation will also help protect prison workers.  At his facility, female staff members were subject to more than 1,600 instances of sexual harassment and abuse by inmates from 2019 to 2023, and had little recourse to stop it, he said....

Under the legislation, an independent federal prison ombudsman would collect complaints via a secure hotline and online form and then investigate and report to the attorney general and Congress dangerous conditions affecting the health, safety, welfare and rights of inmates and staff.

Along with inspecting prison facilities, the legislation requires the Justice Department’s Inspector General to report any findings and recommendations to Congress and the public.  The Bureau of Prisons would then need to respond with a corrective action plan within 60 days.

Interesting gendered jury history in the application of the death penalty

Via the Smithsonian Magazine, I came across this fascinating piece about juries and capital punishment history headlined "How All-Female ‘Juries of Matrons’ Shaped Legal History."  I recommend the piece in full, and here are some excerpts:

For more than 700 years, women in England could avoid the death penalty just by virtue of being pregnant.  A pregnant woman sentenced to death would receive a stay of execution until the baby was born. This tactic was called “pleading the belly” and often resulted in the death sentence being reduced to a less severe penalty once the pregnancy was over.

Of course, anyone can say they’re pregnant without actually being with child. So how did courts determine whether the claim was true? Until the early 20th century, it was standard practice to assemble all-female juries, called “juries of matrons,” to determine whether a woman was pregnant and could therefore avoid hanging for capital offenses....

All-female juries existed as early as 1140 in England and persisted until 1931. Their role in the courts was highly regarded. They were medical experts. If they found the woman was “quick with child” (pregnant), their findings were not disputed....

All-female juries also existed in colonial America, as well as in Australia and New Zealand. In fact, the first use of the English jury system in Australia was a jury of matrons....

If a convicted woman’s pregnancy resulted in a birth, a reprieve from the noose was fairly common. This raised the concern among men that women might falsely plead the belly to avoid punishment for a capital offense. They worried a jury of matrons, being “naturally” sympathetic to women, might grant the guilty a reprieve from death.

While there is scant evidence that this was the case, to address the men’s concern, the laws around pleading the belly stipulated that such a plea could only be made once. If a pregnant woman was granted a reprieve from death to have the baby, she could be executed for any future crime—even if pregnant at the time.

Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?

The question in the title of this post is prompted by some notable new corporate news that is also a federal sentencing story.  This AP piece, headlined "Boeing accepts a plea deal to avoid a criminal trial over 737 Max crashes, Justice Department says," provides the basics:

Boeing will plead guilty to a criminal fraud charge stemming from two crashes of 737 Max jetliners that killed 346 people, the Justice Department said late Sunday, after the government determined the company violated an agreement that had protected it from prosecution for more than three years.

Federal prosecutors gave Boeing the choice last week of entering a guilty plea and paying a fine as part of its sentence or facing a trial on the felony criminal charge of conspiracy to defraud the United States. Prosecutors accused the American aerospace giant of deceiving regulators who approved the airplane and pilot-training requirements for it.

The plea deal, which still must receive the approval of a federal judge to take effect, calls for Boeing to pay an additional $243.6 million fine. That was the same amount it paid under the 2021 settlement that the Justice Department said the company breached. An independent monitor would be named to oversee Boeing’s safety and quality procedures for three years. The deal also requires Boeing to invest at least $455 million in its compliance and safety programs.

The plea deal covers only wrongdoing by Boeing before the crashes in Indonesia and in Ethiopia, which killed all 346 passengers and crew members aboard two new Max jets. It does not give Boeing immunity for other incidents, including a panel that blew off a Max jetliner during an Alaska Airlines flight over Oregon in January, a Justice Department official said. The deal also does not cover any current or former Boeing officials, only the corporation. In a statement, Boeing confirmed it had reached the deal with the Justice Department but had no further comment.

In a filing Sunday night, the Justice Department said it expected to submit the written plea agreement with a U.S. District Court in Texas by July 19. Lawyers for some of the relatives of those who died in the two crashes have said they will ask the judge to reject the agreement. “This sweetheart deal fails to recognize that because of Boeing’s conspiracy, 346 people died. Through crafty lawyering between Boeing and DOJ, the deadly consequences of Boeing’s crime are being hidden,” said Paul Cassell, a lawyer for some of the families.

Federal prosecutors alleged Boeing committed conspiracy to defraud the government by misleading regulators about a flight-control system that was implicated in the crashes, which took place than less five months apart. As part of the January 2021 settlement, the Justice Department said it would not prosecute Boeing on the charge if the company complied with certain conditions for three years. Prosecutors last month alleged Boeing had breached the terms of that agreement.

U.S. District Judge Reed O’Connor, who has overseen the case from the beginning, has criticized what he called “Boeing’s egregious criminal conduct.” O’Connor could accept the plea and the sentence that prosecutors offered with it or he could reject the agreement, likely leading to new negotiations between the Justice Department and Boeing.

I know very little about corporate criminal prosecutions or about the detailed specifics of this case. But I know that former federal judge Paul Cassell is a tireless advocate for crime victims, and this new Reuters commentary, headlined "Boeing 737 MAX crash victims’ families could disrupt new plea deal with US," provides a lot of background on the possibility of the victims' families disrupting this deal. It closes this way:

Crucially, the plea agreement — unlike Boeing’s deferred prosecution agreement — must be approved by O’Connor. That requirement, said family members’ lawyer Cassell, give his clients a shot at blocking the deal. “The standard that a judge applies when reviewing a plea deal is more rigorous than it is for a deferred prosecution agreement,” said Cassell. “Make no mistake: Judge O’Connor has the authority to reject the plea agreement.”

The Justice Department is already bracing for the families’ opposition. Prosecutors told O’Connor that they’d demanded additional concessions from Boeing after meeting several times with family members and their counsel, but that some family members continued to oppose the deal. (The Justice Department did not say how many families are opposed.) The government asked the judge to postpone a hearing to give both sides time to submit briefs on the proposed deal and to allow family members to make travel plans to attend a hearing in person.

Cassell, a retired federal judge, told me that the crash victims’ families have already succeeded in “shaking up business as usual in the criminal division of the Justice Department.” Now we’ll see if his clients and other families can use their leverage to force additional relief from Boeing.

How many US Presidents have been a local prosecutor? Who was last major party candidate with this pedigree?

It is perhaps a bit early to start thinking about the potential criminal justice policies of the various folks who might replace President Joe Biden as the Democratic Party 2024 nominee for President.  (Or is it? is it? is it?)  But I got to thinking about how a new candidate at the top of the Democratic ticket might reshape the campaign's engagement with a range of criminal justice issues (as well as many other issues, of course).  That thinking, in turn, led me to realize that two oft-suggested potential replacements for Biden have served as local prosecutors: Vice President Kamala Harris served as District Attorney of San Francisco for seven years; Michigan Governor Gretchen Whitmer served as Prosecuting Attorney of Ingham County for five months.

VP Harris also had a lengthy tenure as Attorney General of California, and Pennslyvania Governor Josh Shapiro also served as his state's Attorney General.  But service in the role of a local prosecutor strikes me as "different in kind" regarding knowledge of and connections to criminal justice issues.  And so it seems notable that VP Harris' professional history probably makes her the person with the most significant criminal justice background being serious discussed as a serious presidential possibility since perhaps Earl Warren in 1952.  (Anyone remebder what happened to that guy?)

The quesitions in the title of this post highlight that I am not a presidential historian and have no sense of whether it used to be more common for Presidents and presidential aspirants to have significant criminal justice experience.  This webpage reviewing the "The Long History of America’s Lawyer Presidents," notes that Presidents James Knox Polk and William McKinley served as county prosecutors.  (Side note about lawyer presidents:  I believe that since 1984, Democrats have nominated a lawyer for President every cycle except in 2000; over that time, the the GOP nominated a lawyer only in 1996 and 2012.) 

Given that the last president with history as a state Attorney General was fined and disbarred due to his behavior while in office, I do not think there is a sound basis to assert or suggest that a President with notable criminal justice service is sure to be particularly attentive to legal rules or norms.  Still, there is something of a movie-script quality to the possibility that the 2024 presidential election could involve one candidate with historic experiences as a prosecutor and another candidate with historic experience as a criminal defendant.  Interesting times.

Intriguing criminal justice reform talk from across the pond from new UK prime minister

Realizing that, conincidently on US Independence Day, the Brisish elected a new Partiment and Prime Minister, I was epsecially intrigued by this new BBC article headlined "We have too many prisoners, says new PM Starmer." I recommend the piece in full, and here are excerpts:

Sir Keir Starmer has said he wants to reduce the number of people going to prison through renewed efforts to cut reoffending.

In his first press conference as prime minister, Sir Keir said too many people found themselves back in jail "relatively quickly" after being sent there. He added that intervening to prevent young people committing knife crime would be an early priority for his new government.

But he said there would be no "overnight solution" to prison overcrowding, adding: "We’ve got too many prisoners, not enough prisons."

It comes after he appointed a businessman as his prisons minister who has previously said only a third of prisoners should be there. James Timpson, boss of the shoe repair chain which has a policy of recruiting ex-offenders, said in an interview with Channel 4 earlier this year that "we're addicted to punishment”.

Labour, which won a landslide general election victory on Thursday, has promised to review sentencing after regaining office for the first time since 2010. It has also inherited a ballooning crisis in Britain's jails, and has already committed to keeping the previous Conservative government's early release scheme in place to ease current levels of overcrowding. Last week the Prison Governors’ Association, which represents 95% of prison governors in England and Wales, warned that jails were due to run out of space within days.

Tory ex-justice secretary Alex Chalk first announced plans to release prisoners early in October 2023. Mr Chalk, who lost his seat to the Lib Dems in the general election, told MPs at the time the "prison population is greater than it has ever been" and the UK "must use prison better". However, he added: "We must do whatever it takes to always ensure there are always enough prison places to lock up the most dangerous offenders to keep the British public safe."

Details of Labour's review are yet to be unveiled, but Mr Timpson's appointment has offered an early signal that a change of approach may be on the cards in this area. Sir Keir has appointed him a member of the House of Lords, allowing him to take up a post as prisons minister at the Ministry of Justice. The businessman told a Channel 4 podcast in February that prison was a "disaster" for around a third of prisoners, and another third "probably shouldn’t be there".

He said too many people being in prison for "far too long" was an example of "evidence being ignored because there is this sentiment around punish and punish”. "We’re addicted to sentencing, we’re addicted to punishment," he added.

Asked about his comments at a Downing Street press conference, Sir Keir did not offer a view on whether he agreed with those estimates. But he added: "We do need to be clear about the way in which we use prisons. “For so many people [who] come out of prison, they’re back in prison relatively quickly afterwards.

“That is a massive problem that we have in this country, that we do need to break." He said his party wanted to cut knife crime in particular, and cited his plan to set up a network of "youth hubs".

Sir Keir, a former lawyer, added: “I’ve sat in the back of I don’t know how many criminal courts and watched people processed through the system on an escalator to go into prison. “I’ve often reflected that many of them could have been taken out of that system earlier if they’d had support”....

Labour says it wants to create 20,000 prison places by enabling ministers to override local councils on planning decisions. But it also plans to keep in place the scheme implemented by the last government under which some lower-level offenders can be released up to 70 days early.

Sir Keir said Conservative ministers had created a "mess" by failing to build enough prisons and mismanaging the prisons budget. Defending his decision to keep the early-release scheme in place, he added: "We don’t have the prisons we need, and I can’t build a prison within 24 hours."

The latest official figures, published on Friday, put the prison population of England and Wales at 87,453 out of a "useable operational capacity" of 88,864.

For a very rough sense of American proportions, I believe Florida has a prison population over 80,000 prisons (as well as many tens of thousands more in local jail).  But Florida's overall population is roughly one third of the overallpopulation in England and Wales. In other words, Florida's incarceration rate is about three times the prison population rate getting this attention from national leadership accross the pond.

Put another way for another point of comparison, if the overall US incarceration rate was similar to the rate in England and Wales, we would expect the national US prison population to be around 450,000 persons.  In fact, it is currently amlmost three times that large, checking in these days at around 1.25 million people.  And yet I am certainly not expecting to hear from any of our national leaders anytime soon that "We have too many prisoners."

Noting recent clemency grants and broader clemency record of Michigan Gov Whitmer

This new local press article, headlined "Whitmer grants clemency to 5, including two first-degree murder convicts, but not DeLisle," caught my attention in part because the Governor of Michigan is among a number of prominent Democratic officials getting extra attention amid debate over President Joe Biden's seemingly uncertain status as a presidential candidate.  Helpfully, this new press piece discusses Gov Whitmer's recent clemency work in the context of broader clemency records in Michigan:

Michigan Gov. Gretchen Whitmer has pardoned two individuals and commuted the sentences of three others, including two inmates who were convicted of first-degree murder and would otherwise spend the rest of their lives in prison.... 

In a Wednesday statement, Whitmer said the clemency designations were based on recommendations from the Michigan Parole Board.  "By granting clemency to five individuals who have taken accountability for their actions, we will offer them a fair shot to build a good life in Michigan," Whitmer said.

Both the governor and Lt. Gov. Garlin Gilchrist said the clemency decisions are part of an effort to give people in the criminal justice system a second chance. They noted other measures include recent expansions of "Clean Slate" legislation meant to wipe nonviolent offenses off people's records and intervention programs in the court system to connect people to mental health aid, substance abuse support and job resources....

Hundreds of individuals request a pardon or commutation each year through applications submitted to the Michigan Parole Board, which reviews those applications, sometimes grants hearings and then makes a recommendation to the governor. The governor grants several of the requests each year.  In 2023 alone, 521 individuals submitted applications seeking commutations.

Since becoming governor in 2019 and with Wednesday's numbers included, Whitmer has commuted the sentences of 35 inmates, including seven who were convicted of first-degree murder, and three with second-degree murder convictions, according to Michigan Department of Corrections records. In 2022, Whitmer also granted pardons to four people who'd already served their sentences for nonviolent offenses.

By comparison, Democratic former Gov. Jennifer Granholm granted commutations to 180 prisoners from 2003-11, and Republican former Gov. Rick Snyder commuted 32 sentences from 2011-18.  Overall, Michigan governors have commuted the sentences of 379 prisoners since 1969, 162 of whom had been convicted of first-degree murder, according to Michigan Department of Corrections records. Clemency was granted to 95 inmates for medical reasons.

Shouldn't not being sentenced based on acquitted conduct be one "of the benefits of Trial by Jury"?

In many years past, I have leaned into feedom and liberty themes for a July 4th post (see partial round up here).  But last year's July 4th post focused on acquitted conduct sentencing, and I cannot resist returning to the topic after an notable year on this front. 

As a reminder of why this is a fitting July 4th topic, recall that in the Declaration of Independence, approved 248 years ago today, the founders of this Nation complained of a "long train of abuses and usurpations" by "the present King of Great Britain," which included "depriving us in many cases, of the benefits of Trial by Jury."  As suggested in the title of this post, I consider being sentenced more severely by a judge on the basis of conduct that led to a jury acquittal at trial to be a deprivation of one "of the benefits of Trial by Jury."   Consequently, I view acquitted conduct sentencing to be inconsistent with key principles stressed by our Nation's founders and at our Nation's founding.

Notably, this portion of our Declaration of Independence was stressed in two recent Supreme Court constitutional rulings.  In Erlinger v. US, No. 23-370 (S. Ct. June 21, 2024) (available here), Justice Gorsuch writing for the Court on behalf of six Justices cited this provision: "Prominent among the reasons colonists cited in the Declaration of Independence for their break with Great Britain was the fact Parliament and the Crown had 'depriv[ed] [them] in many cases, of the benefits of Trial by Jury.' ¶ 20."  And in SEC v. Jarkesy, No. 22–859 (S. Ct. June 27, 2024) (available here), Chief Justice Roberts writing for the Court on behalf of a different group of six Justices also cited this provision:  "And when the English continued to try Americans without juries, the Founders cited the practice as a justification for severing our ties to England. See Declaration of Independence ¶ 20."

I fear that these two recent constitutional rulings, vidicating the Sixth and Seventh Amendments' jury trial rights, do not ensure or even increase the likelihood that the Supreme Court will soon take up and reverse jurisprudence permitting acquitted conduct sentencing.  But they do give me just a little more hope that, as some point in the future, a time will come in which courts recognize and vindicate the reality that acquitted conduct sentencing is inconsistent with our founding principles and our commitment to democratic self-governance.

Thankfully, this past year has seen a (small) step forward in the form of a new amendment to the federal sentencing guidelines which provides that the guideline range can no longer be based on "conduct for which the defendant was criminally charged and acquitted in federal court."  Though an incomplete remedy and many decades too late, I am still pleased that the US Sentencing Commission has partially restored one "of the benefits of Trial by Jury" that our founders went to war to vindicate.  I am also encouraged that Congress continues to vote in strong support of the "Prohibiting Punishment of Acquitted Conduct Act," though this bill disappointingly has not yet make it through the full legislative process.  

In the end, especially on a day like today, I remain drawn to the core notion that our sentencing laws in general, and acquitted conduct sentencing rules in particular, are matters fundamentally about our national and constitutional values.  I hope to see our founding values soundly reflected in these laws and rules.

Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law

More than 30 years ago, I had the great fortune to take administrative law in law school from then-Judge Stephen Breyer.  Though I am sure I learned a lot in that admin law course, what I most remember learning is that I did not want to practice admin law.  And yet, ironically I suppose, a good portion of my professional career has been devoted to considering (and sometimes criticizing) the work of the only federal administrative agency localed in the judicial branch, the US Sentencing Commission.  Moreover, especially since the First Step Act created all sorts of new provisions to be applied to federal prisoners, I have been giving ever more attention to the work of the administrative agency known as the Federal Bureau of Prisons (which is within the bigger administrative agency known as the US Department of Justice).  I am not sure it is surprising as much as it is intriguing that a whole lot of federal sentencing and correections law emerge from the actions of federal administrative agencies.

This post's preamble is meant to tee up the isssue flagged in the title, as the Supreme Court last week issued a significant administrative law ruling in Loper Bright Enterprises v. Raimondo, No. 22-451, (S. Ct. June 28, 2024) (available here), wherein the Court formally eliminated so-called Chevron deference in the consideration of challenges to actions by adminstrative agencies. Here is the key closing statement of the ruling in the case from Chief Judge Roberts' opinion for the Court:

Chevron is overruled.  Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.  Careful attention to the judgment of the Executive Branch may help inform that inquiry.  And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.  But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

So how does this significant ruling impact actions by the US Sentencing Commission and the Bureau of Prisons?  Candidly, I do not know.  I have already received a number of emails from a number of folks wondering if Loper Bright might be a federal sentencing game-changer in some respect, and I am always inclined to think probably not.  But as flagged in a post here a couple years ago, the Supreme Court's ruling in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), recast for federal courts "the deference they give to agencies ... in construing agency regulations" and that ruling has rippled in uneven and unpredictable ways through circuit decisions about how Guideline commentary can inform application of certain USSC Guidelines.  And, writing here in Forbes, Walter Pavlo notes on-going litigation over BOP's implementation of the First Step Act and concludes with this forecast: "The Chevron ruling will certainly prompt more lawsuits against the BOP in the coming months as prisoners will simply be asking for what Congress intended them to have ... less time in prison."

Adding to the intrigue, I suppose, is the fact that the Department of Justice (an agency) is currently arguing in courts nationwide that the US Sentencing Commission (an agency) misinterpreted the Sentencing Reform Act and the First Step Act when it recently amended USSG §1B1.13, Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement), to provide in subsection (b)(6) that, when "a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason" to potentially permit a reduction in his imprisonment term.   Notably, the SRA expressly delegates to the USSC the responsibility to "describe what should be considered extraordinary and compelling reasons for sentence reduction," 28 USC § 994(t), and so I would think Loper Bright still supports courts showing "respect [to] the delegation."  But I have a feeling DOJ will not read Loper Bright to end its legal attack on the amended guideline.

There is on-going litigation before a number of circuits concerning this amended USSC's policy statement, and it will be interesting to see if circuit judges rely heavily or at all on Loper Bright as they sort through the claim by DOJ that the USSC actions were not kosher.  And if DOJ prevails and/or Loper Bright supports efforts to assail the US Sentencing Guidelines on statutory grounds, I wonder whether defendants and defense attorneys might be able to champion other statutory language in 28 USC § 994 to assail other Guidelines.  For example, I have long thought many Guidelines — and particularly key provisions of the fraud and drug guidelines — fail to comply with 994(j), wherein Congress provided that the "Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense."  Could and should whole guidelines or particular subprovisions be attacked by defendants whenever in non-violent, low level cases these provisions do not recommend "imposing a sentence other than imprisonment"? 

My sense is that it will take quite a while before we fully understand the impacts of the Loper Bright ruling in awide array of legal arenas.  I am just starting early with my general call that the folks smart enough to really understand administrative law make sure not to forget to helping all of us working through the possible federal criminal law echoes.