Sentencing Law and Policy

"Compassionless Plea Bargaining"

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

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

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

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

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

Rounding up some coverage on whom Prez Biden should give clemency to next

In this post on Monday, I flagged a lot of early commentary focused on Prez Biden's decision Sunday night to pardon his son Hunter.   There has been, unsurprisingly, continuing discussion of this pardon and its echoes.  One theme to the next round of pieces that I find especially interesting concerns who else should get the benefit of Biden's clemency pen.  Here is a round up of some of these pieces: 

From the AP, "Joe Biden’s pardon of his son Hunter spurs broader discussion on who else should be granted clemency"

From Axios, "Congress hands Biden a huge Hunter-driven pardon wishlist"

From Forbes, "Here’s Who Else Biden Could Pardon Before He Leaves Office — Beyond Hunter Biden"

From Fox News, "Jeffries wants Biden to dole out pardons for people aggressively prosecuted 'for nonviolent offenses'"

From Fox News, "Who else might Biden pardon after he spared Hunter from sentencing?"

From the Independent, "Who else could Biden pardon?"

From Mother Jones, "Hunter Got a Pardon. Will Drug War Victims?"

From the New York Times, "After Biden Pardons His Son, Prison Inmates Hope They’re Next"

From the Washington Post, "The people Joe Biden should have pardoned along with his son"

From wbur, "Rep. Ayanna Pressley is calling on Biden for more sweeping pardon action"

As I have mentioned before, folks interested in broader clemency matters may want to check out my recent Sentencing Matters Substack post on clemency traditions.  In addition, there is still time to regster for this timely December 10 event I will be moderating on federal clemency topics titled "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power."   

Rounding up just some early commentary on a father's pardoning

I was inclined to wait a bit before doing a round up of commentary on Prez Biden's decision last night to pardon his son Hunter. (For the record, I suspect Prez Biden made the decision to pardon Hunter a long time ago, but it was officially announced yesterday.)  And yet, I have seen so many notable pieces in less than 24 hours, I think an (abridged) round up cannot wait.  So:

From The Atlantic, "Biden’s Unpardonable Hypocrisy"

From The Bulwark, "In Defense of the Hunter Biden Pardon"

From Fox News, "President Biden's pardon of son Hunter a political gift for Trump going forward"

From Fox News, "Joe Biden's pardon of son Hunter cements his legacy as liar in chief"

From The Guardian, "With his pardon of son Hunter, Joe Biden delivers a heartfelt hypocrisy"

From MSNBC, "Joe Biden chose fatherly love over his duties as president"

From New York magazine, "Joe Biden’s Pardon of Hunter Is So Much Worse Than It Needed to Be"

From the New York Times, "Biden’s Pardon for His Son Dishonors the Office"

From The New Yorker, "Biden’s Pardon of Hunter Further Undermines His Legacy"

From Politico, "Joe Biden’s Parting Insult"

From Slate, "The Hunter Biden Pardon Is Defensible — and Perverse"

From the Washington Post, "Biden did what many fathers would do: Save his child"

George Santos, AG Garland's charging memo, Pam Bondi, oh my

My post title not only reflects my Ozian mood, but also my effort to get extra attention for this last banger post by Jonathan Wroblewski over at the Sentencing Matters substack.  The post lurks under the sly simple query in its title: "What Ever Happened to Attorney General Garland’s Charging and Sentencing Policy?".  What follow is a kittle something for everyone at this particular moment of Justice Department reflection, especially as it relates to charging/plea practices and mandatory minimums.  I highly recommend the post in full, and here are just a few tastes: 

The fact that the U.S. Attorney insisted on [George] Santos pleading guilty to a charge carrying a mandatory minimum imprisonment sentence – and that he proudly proclaimed it publicly – was a bit puzzling, to me anyway. You see at the beginning of the Biden Administration, my job in the bureaucracy was to lead a Department working group that examined a whole host of sentencing and corrections policies and recommended changes to many of those policies for the new Administration....

As part of that work, the working group teed up for Attorney General Merrick Garland a new charging policy, actually several different drafts. And after many months of deliberation, in December 2022, Attorney General Garland issued a new policy. If you are not familiar with it, you can read it for yourself here. Out in the open for all to see. It told federal prosecutors not to charge statutes carrying mandatory minimum imprisonment terms except in limited circumstances....

Of course, we know why the U.S. Attorney charged the aggravated identity theft counts, and we know why he insisted that one of those counts be part of the plea agreement. The U.S. Attorney stood up at a podium and told us why. He wanted to be certain that George Santos would spend at least two years in prison. He wanted to take some sentencing options out of the hands of the presiding judge....

Of course, now, with the election of President Trump and the soon-to-be-nomination of Matt Gaetz Pam Bondi to be Attorney General, the policy ritual [for developing a new DOJ charging memo] is sure to begin again. Maybe seeing his friend and sex party companion charged with child sex trafficking, a charge carrying a mandatory minimum term of imprisonment, will lead Gaetz to think twice before reinstating the Sessions’ memo. Notably, back in 2018, the year President Trump signed the First Step Act into law, Bondi led a bipartisan group of 38 state attorneys general supporting criminal justice reform in the federal prison system. So maybe she’ll think twice before reinstating the Sessions’ memo. We’ll see. And maybe Trump will pardon George Santos. I hear there’s still an opening for several Assistant Attorneys General.

One last point – the Garland memo also made a promise –

The Department will develop and implement a software program that enables real-time, trackable reporting by districts and litigating divisions of all charges brought by the Department that include mandatory minimum sentences. Until that time, each United States Attorney’s Office and litigating division must report semi-annually to the Executive Office for United States Attorneys the number and percentage of charging documents and plea agreements in which it has included mandatory minimum charges.

The memo has been in place for about two years now. I don’t recall seeing any data from the Department on the implementation of the new policy. Have you? Did the Department ever develop and implement a software program that enables real-time, trackable reporting by districts and litigating divisions of all charges brought by the Department that include mandatory minimum sentences? Did it ever ask each United States Attorney’s Office and litigating division to report semi-annually to the Executive Office for United States Attorneys the number and percentage of charging documents and plea agreements in which it has included mandatory minimum charges?

Prez Biden issues full pardon to his son Hunter

Upon seeing this news as reported by the New York Times, under the headline "Biden Issues a ‘Full and Unconditional Pardon’ of His Son Hunter Biden," I am tempted to joke that Prez Biden decided to use the long holiday weekend to pardon one last turkey.  Here are the basics:

President Biden fully and unconditionally pardoned his son Hunter on Sunday night, using the power of his office to wave aside years of legal troubles, including a federal conviction for illegally buying a gun, and Republican attacks that hounded the Biden family throughout the last four years.

In a statement issued by the White House, Mr. Biden said he had decided to issue the executive grant of clemency for his son “for those offenses against the United States which he has committed or may have committed or taken part in during the period from Jan. 1, 2014, through Dec. 1, 2024.”

He said he did so because the charges against his son were politically motivated and designed to hurt the president politically. “The charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election,” Mr. Biden said in the statement. “No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son — and that is wrong.”...

Many of the president’s allies and critics had expected him to use the unique authority vested only in his office, even though the president’s spokeswoman had denied for months that Mr. Biden had any intention of doing so. NBC News first reported Sunday evening that Mr. Biden had in fact decided to pardon his son.

The reversal by Mr. Biden came just 50 days before he is set to leave the White House and transfer power to President-elect Donald J. Trump, who spent years attacking Hunter Biden over his legal and personal issues as a part of series of broadsides against Mr. Biden’s family....

It is not the first time a president has used his executive power to commute the sentence of a family member. On his last day in office, President Bill Clinton pardoned his half-brother Roger Clinton for old cocaine charges. A month before leaving office, Mr. Trump pardoned his son-in-law Jared Kushner’s father, Charles Kushner, for tax evasion and other crimes.

Both Roger Clinton and Charles Kushner had long since completed their prison terms, and the pardons were about forgiveness or vindication rather than avoiding time behind bars. Over the weekend, Mr. Trump said that he would nominate Charles Kushner to be the U.S. ambassador to France.

The full statement from Prez Biden is available at this link, and it concludes this way: 

For my entire career I have followed a simple principle: just tell the American people the truth. They’ll be fair-minded. Here’s the truth: I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice -- and once I made this decision this weekend, there was no sense in delaying it further. I hope Americans will understand why a father and a President would come to this decision. 

I fully understand why a father would want to exempt a troubled son from the strictures of the criminal law, but I do not respect a President's decision to show grace here only to his child when there are many thousands of others who have sought clemency and arguably merit grace even more than does this father's privileged son.

Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants

In this post the morning after Donald Trump's election, I wondered aloud about how he might seek to make good on his campaign promises to pardon persons federally prosecuted for their behaviors at the Capital on January 6, 2021.  In that post, I noted that Trump's campaign team seemed eager to stress that Jan 6 clemencies would be decided "on a case-by-case basis."  But that statement raises all sorts of questions about what kind of clemency process Trump and his team might adopt to review the huge universe of 1,500+ Jan. 6 defendants likely to seek clemency.

A new lengthy Politico article notes that adds further intrigue to this developing story under the headline "Trump promised Jan. 6 pardons. His post-election silence is making loyalists nervous."  I recommend the piece in the full, and here are excerpts (with links from the original):

Donald Trump campaigned on a pledge to pardon a vast swath of supporters who stormed the Capitol on Jan. 6, 2021. But his silence on the matter since winning the election has begun unsettling some fervent allies awaiting even the slightest signal from Trump about how he intends to turn his campaign rhetoric into reality.

Federal judges overseeing Jan. 6 cases have been left to guess at Trump’s plans. As a result, they have allowed nearly all cases to proceed, saying Trump’s clemency plans are merely “speculative.” Meanwhile, federal prosecutors have brought a handful of new Jan. 6 felony cases since Election Day, and they’ve argued repeatedly against efforts by defendants to delay their cases to await Trump’s inauguration.

The Justice Department has charged more than 1,500 people for their roles in the riot. Throughout the 2024 campaign, Trump repeatedly said he would pardon many of them. But he left the specifics unclear, and never said whether he might leave in place some prosecutions, particularly against people who assaulted police.

Now that he’s president-elect, his failure to say more has begun nagging at some of his die-hard supporters, who have engaged in a public guessing game on X about Trump’s intentions....  Adding to the anxiety expressed by some Jan. 6 defendants is a statement from Trump’s transition team that hinted at a far more limited approach than the sweeping pardons that many in Trump’s base have demanded.

“President Trump will make pardon decisions on a case-by-case basis,” incoming White House press secretary Karoline Leavitt said in the statement.  The meaning of “case-by-case” has morphed into a raging debate among Jan. 6 defendants and their allies....

[T]wo Trump allies in Congress — Reps. Marjorie Taylor Greene (R-Ga.) and Andy Biggs (R-Ariz.) — issued new calls this week for Trump to issue blanket pardons.  [Julie] Kelly, who has spoken with Trump and congressional Republicans about concerns with Jan. 6 prosecutions, has similarly called for a blanket pardon to address what she calls a “blanket denial of the due process rights of Jan. 6 protesters.”

Kelly suggested that Trump’s public silence belies an enormous amount of advocacy behind the scenes, but she said there are also “political sensitivities” about the notion of pardoning those with assault charges — even though she believes many such pardons would be justified....

[Pam] Bondi, Trump’s new pick to lead the Justice Department, has said nothing publicly about Jan. 6, the perpetrators of the Capitol attack or whether she agrees with Trump’s view of the riot.  [Suzanne] Monk, who is leading an effort called the J6 Pardon Project, has told allies she is working to open lines of communication with Bondi.  In the meantime, Jan. 6 defendants and allies have continued hoping and speculating.

For any and everyone interested in these issues and broader clemency matters, let me further recommend my recent Sentencing Matters Substack post as well as this December 10 event I will be moderating on federal clemency topics.

A few recent related posts:

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

"Why Mass IncarcerationIs Uniquely American"

The title of this post is the title of this "ahead of print" article forthcoming in the journal Crime and Justice authored by Michael Tonry.  Here is its abstract:

Mass incarceration, among Western countries a uniquely American phenomenon, resulted from a transformation of American criminal justice systems.  Indeterminate sentencing systems in which legislatures established maximumsentences, prosecutors processed cases, judges decided who went to prison, and parole boards decided how long people stayed there were replaced by determinate systems in which legislatures prescribed minimum sentences, prosecutors made the key charging and sentencing decisions, judges processed cases and sentenced minor crimes, and parole boards lost much of their authority.  Parole boards and judges become largely irrelevant wheneverprosecutors file charges subject to mandatory sentence, three-strikes, truth-in-sentencing, and life without parole laws.  The explanation for the changes andmass incarceration is that developments beginning in the 1960s — White re-sentment of the civil rights movement, rising crime rates, and politicization ofthe criminal law — interacted with long-term characteristics of American historyand culture.  Four are fundamental: chronic, centuries-old racial conflict and threeinheritances from America’s frontier history (election of local prosecutors, moraljudgmentalism associated with fundamentalist Protestantism, and widespread fatalism about and indifference to human suffering).

Weak names this year at Prez Biden's final turkey pardon ceremony

This new Washington Post piece reporting on today's turkey pardon ceremony at the White House includes a little political gravy, along with an explanation for the names of the birds. Here is how the piece starts:

“They tell me there’s 2,500 people here today, looking for a pardon!” President Joe Biden stared through his aviators at the crowd on the White House’s South Lawn on Monday morning.  Everyone laughed. It was a joke, right? The rows of chairs closest to the president were stuffed with Biden loyalists: Cabinet members, political appointees, staff, friends — maybe the sort of people whom President-elect Donald Trump might seek retribution against?

In the end, only a pair of turkeys, Peach and Blossom, walked free. They are the last turkeys who will be pardoned by the 46th president, and they will “join the free birds of the United States of America,” Biden said. Peach, standing on a platform to the president’s right, released an ecstatic gobble. “Peach is making a last-minute plea here,” Biden added.

The birds were raised by National Turkey Federation Chairman John Zimmerman on a farm in Northfield, Minnesota. Zimmerman and his 9-year-old son, Grant, were on hand, as was Minnesota Gov. Tim Walz, less than three weeks removed from his star turn as Vice President Kamala Harris’s running mate.  This would be the closest Walz gets to the White House, at least for now.

The turkeys were named for the state flower of Delaware. “By the way,” Biden told the crowd, “Delaware has a long history of growing peaches,” and peach pie is the official state dessert.  One imagines this is the last we’ll hear about Delaware for a while.  Biden also said that the peach blossom flower “symbolizes resilience, which is, quite frankly, fitting for today.” The president did not explain what he meant by this.

The names given to the pardoned turkeys are never especially clever or interesting, but I was hoping for a bit more fun this year.  I suppose Hunter and Donald would have been too edgy, and Martha and George a bit too opaque in its cheekiness except for those on a first-name basis with famous federal defendants. 

Knowing this ceremony was sure to take place this week, I drafted and published a new Substack entry at the Sentencing Matters Substack to fill out some of my yearly griping about turkeys getting more clemency attention than people.  This new entry, "Imagining better clemency traditions than turkey pardons and lame-duck frenzies," gets started this way:

Late November 2024 augurs some traditions in the world of executive power that I do not view as a cause for holiday celebration.  Every year, as Thanksgiving approaches, the President and some Governors conduct ceremonies to “pardon” a few turkeys (who are often given not-so-clever names).  This year, with President Joe Biden and some Governors now in their final weeks in power and no longer accountable to the voting public, the 2024 holiday season also brings the spectacle of efforts to encourage out-going chief executives to use their clemency pens robustly to benefit a wide array of justice-involved individuals.  That spectacle traditionally presages a frenzy of lame-duck clemency grants that are more predictable based on calendar dates than based on the merits of substantive pleas for justice or mercy.

Be sure to head over to the substack if you want to review my efforts to "envision a few potential new traditions in the clemency arena that would justify celebration."  I also close with some clemency thanks, including: "I am also thankful that, even in divisive political times, we typically hear only robust debates over how the clemency power should be exercised, not over whether the power should exist at all."  

In the spirit of thankfulness, it dawns on me that I have been remiss in highlighting a lot of the recent new content from the Sentencing Matters Substack thanks to my co-authors.  One co-author in particular has done a particularly impressive job making sure we post new content every week, and here are some of his more recent efforts:

• A Better Federal Drug Guideline
• Facing a New Political Reality: A Five-Part Post-Election Agenda for the U.S. Sentencing Commission
• The Sentencing Matters Substack Interview: Former Presidential Candidate, Governor, DEA Administrator, Congressman, and U.S. Attorney Asa Hutchinson
• The Sentencing Matters Substack Book Review: Sentencing Without Guidelines, by Rhys Hester
• § 5H1.1 (James’ Version)

Espcially because I have the great joy of hosting family this week, which means blogging may be a bit lighter than usual, be sure to head over to the Sentencing Matters Substack if you want to feast on extra helpings of sentencing discussions.

Also, for those of you hungry for more clemency talk, remember to register for the online event, "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power," being hosted on December 10 by the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  More details and a list of panelist can be found on this event page. 

"Sentencing Insurrection"

The title of this post is the title of this new paper authored by Kevin Lapp recently posted to SSRN. Here is its abstract:

On January 6, 2021, an estimated two thousand people broke police lines and breached the U.S. Capitol building in an effort to prevent the certification of the 2020 presidential election results.  Over one thousand people have been charged with various crim­­­­­es for their actions that day, from misdemeanor trespassing charges to felony assault with a weapon and seditious conspiracy.  Relying on publicly available sources, this article present results from an analysis of the first 514 people to have been sentenced in federal court for crimes committed on January 6.  The result is a snapshot of the insurrectionists, the charges they faced, and the punishments federal judges imposed on them.

On demographics, the data suggests that the lawbreaking and political violence of January 6 was not just the work of the usual criminal suspects, so-called right-wing extremists, or residents of former President Trump strongholds. Rather, it was committed by a cohort that more closely resembles mainstream White America.  On punishment, the aggregate results are notable for their leniency.  The cases were much more likely to result in a conviction for only a misdemeanor than typical federal criminal cases.  Prison sentences were imposed much less frequently than usual for federal criminal defendants, and were much shorter in length.

The article also explores the relationships between defendant age and sex, the sentences that judges imposed, and the sex and political party of the President who nominated the sentencing judge.  Several intriguing findings raise questions about scholarship on the politics of sentencing. It also examines where individual judges varied in the imposition of incarceration, sometimes in surprising ways, even accounting for the severity of the offense of conviction.

Finally, the article posits three alternative narratives supported by the data.  One is a story of preserving political stability and the rule of law through prosecution, threatened by lenient sentencing.  Another is judicial corrective to prosecutorial overreach.  A third centers the role of politics, demographics, and bias in the administration of criminal justice.

Expanded academic and caselaw resorces from the Plea Bargaining Institute

In this post a couple of years ago, I noted the launch of the Plea Bargaining Institute (PBI) which aspired to "provide a global intellectual home for academics, policymakers, advocacy organizations and practitioners working in the plea bargaining space."   One can check out the News tab on the PBI website to see some of the Institute's  activities, and this latest item from earlier this week particularly caught my attention under the heading "PBI Expands Online Summaries Database to Incorporate Academic Articles."  Here is an excerpt:

The Plea Bargaining Institute has expanded the online summaries database to include over 130 academic articles.  The articles represent important works from 1979 through 2023 in the fields of law, psychology, economics and other disciplines that assist in better understanding the history, growth, and operation of plea bargaining.

“The Institute’s mission includes creating better access to research for practitioners, policy makers, and academics in diverse fields of study,” said PBI Founding Director Lucian Dervan.  “This new collection of online academic summaries will assist each of these groups in accessing and examining important research that will better inform their litigation, policy initiatives, and cross-disciplinary research.”

Each of the academic entries in the database contains the title, authors, source, and publication year of the article. This is followed by a list of terms relevant to the research piece, and these terms can be used to identify other research in the database relevant to the same subject matter.  Finally, each summary contains a detailed description of the research’s main findings and conclusions and a key quote from the piece.

These new academic article entries supplement the fifty-nine Supreme Court summaries representing significant Supreme Court decisions regarding plea bargaining since 1970 already included in the online database.  A report regarding those 59 Supreme Court decisions was released earlier this year by the Institute.  A report regarding the academic articles will be released in the near future.

Next up: after Matt Gaetz pulls out, Prez-Elect Trump names former Florida AG Pam Bondi to be next US AG

As reported in this AP piece, "President-elect Donald Trump on Thursday named Pam Bondi, the former attorney general of Florida, to be U.S. attorney general just hours after his other choice, Matt Gaetz, withdrew his name from consideration." Here is more:

Bondi is a longtime Trump ally and was one of his lawyers during his first impeachment trial ... [and] was among a group of Republicans who showed up to support Trump at his hush money criminal trial in New York.... She’s been a chair at the America First Policy Institute, a think tank set up by former Trump administration staffers.

“For too long, the partisan Department of Justice has been weaponized against me and other Republicans - Not anymore,” Trump said in a social media post. “Pam will refocus the DOJ to its intended purpose of fighting Crime, and Making America Safe Again.”

Trump’s son Donald Trump Jr. told Fox Business on Sunday that the transition team had backups in mind for his controversial nominees should they fail to get confirmed. The swift selection of Bondi came about six hours after Gaetz withdrew....

Last week, Trump named personal lawyers Todd Blanche, Emil Bove and D. John Sauer to senior roles in the department. Another possible attorney general contender, Matt Whitaker, was announced Wednesday as the U.S. ambassador to NATO.

Bondi, too, is a longtime loyalist. She has been a vocal critic of the criminal cases against Trump as well as Jack Smith, the special counsel who charged Trump in two federal cases. In one radio appearance, she blasted Smith and other prosecutors who have charged Trump as “horrible” people she said were trying to make names for themselves by “going after Donald Trump and weaponizing our legal system.”

I would guess that Bondi should have a much smoother path to Senate confirmation than was expected for Gaetz, and it will be interesting to hear at confirmation hearings about her plans for leading the Justice Department  I am not familiar at all with her criminal justice record while Florida's AG, but this bio page describes her work this way:

While Attorney General she worked for tough legislation to close pill mills, ban synthetic drugs, combat human trafficking, curtail Medicare fraud, and address harmful mortgage servicing and foreclosure practices.  She worked with the White House on the First Step Act designed to help formerly incarcerated inmates reenter society safely and giving them the ability to succeed. 

I have also seen in press pieces that she was a vocal supporter of the First Step Act, and I am hopeful she will advance efforts to give that landmark reform its full due in application (assuming she is confirmed as our nation's next Attorney General).

UPDATE:  I just found this 2020 Washington Post piece, headlined "White House assembles team of advisers to guide clemency process as Trump considers more pardons," which discusses Bondi's work assisting Trump in the clemency space back in 2020:

Pam Bondi, the former Florida attorney general who served on Trump’s impeachment defense team, is also playing a significant role, vetting applications for potential pardon recipients. Kushner has personally reviewed applications with White House lawyers before presenting them to Trump for final approval, according to two senior administration officials.

I wonder if Prez-Elect Trump might look for help from an AG Bondi if and when he plans to make good on his clemency promises to Jan 6 defendants.

"On the Importance of Listening to Crime Victims . . . Merciful and Otherwise"

The title of this post is the title of this paper authored by Paul Cassell just posted to SSRN. Here is its abstract:

What role should mercy play in the criminal justice system?  While several of the other symposium’s articles here in the Texas Law Review argue for expanding mercy’s role, I write to raise a cautionary note.  Expanding mercy could potentially conflict with another important feature of contemporary criminal justice: the expanding role of crime victims.  Because considerations of mercy focus exclusively on the offender, greater attention to mercy necessarily means less attention to victims.  This change in focus would be at odds with a broadly advancing crime victims’ movement in this country and, indeed, in many countries around the world.  This cautionary point does not assume that all crime victims want a more punitive criminal justice system.  To the contrary, many crime victims may argue for mercy.  But allowing victims’ voices to carry weight only when they advance merciful arguments is inconsistent with the underlying rationale for victim involvement: that victims should have agency to advance their own claims in criminal justice processes.

Could and would the Trump Administration's Justice Department seek the death penalty for Laken Riley's murderer?

Yesterday brought not only a quick conviction, but also a quick sentencing to LWOP, in the Georgia state bench trial of the man who brutally murdered Laken Riley.  This AP story provides some basics:

The Venezuelan man convicted of killing Georgia nursing student Laken Riley has been sentenced to life in prison without the possibility of parole in a case that became a flashpoint in the national debate over immigration.  Jose Ibarra was charged with murder and other crimes in Riley’s February death, and Wednesday’s guilty verdict was reached by Athens-Clarke County Superior Court Judge H. Patrick Haggard. Ibarra, 26, had waived his right to a jury trial, meaning Haggard alone heard and decided the case.

Haggard found Ibarra guilty of all 10 counts against him: one count of malice murder; three counts of felony murder; and one count each of kidnapping with bodily injury, aggravated assault with intent to rape, aggravated battery, obstructing an emergency call, evidence tampering and being a peeping Tom.

Prosecutors said Ibarra encountered Riley while she was running on the University of Georgia campus on Feb. 22 and killed her during a struggle.  Riley, 22, was a student at Augusta University College of Nursing, which also has a campus in Athens, about 70 miles (115 kilometers) east of Atlanta.

Riley’s family and friends tearfully remembered her and asked Haggard to sentence Ibarra to the maximum penalty. Her mother, Allyson Phillips, said there is “no end to the pain, suffering and loss we have experienced and will continue to endure.”  “This sick, twisted and evil coward showed no regard for Laken or human life. We are asking that the same be done for him,” she told the judge.

Riley’s younger sister, Lauren Phillips, a freshman at the University of Georgia, talked about the pain of living without her “favorite person” and “biggest role model” and the effect her sister’s death has had on her. “I cannot walk around my own college campus because I’m terrified of people like Jose Ibarra,” she said....

Defense attorney John Donnelly asked Haggard to give Ibarra two consecutive life sentences but to allow him the eventual possibility of parole.  Prosecutor Sheila Ross asked the judge for the maximum sentence, saying Riley’s family should never have to worry about Ibarra being released. “You can’t bring her back and it’s horrible. What you can do is give comfort with your sentence,” Ross said.

Haggard ultimately gave Ibarra the maximum sentence he could impose, including life in prison without the possibility of parole on the malice murder count.

Riley’s killing added fuel to the national debate over immigration when federal authorities said Ibarra illegally entered the U.S. in 2022 and was allowed to stay in the country while he pursued his immigration case. President-elect Donald Trump and other Republicans blamed Riley’s death on the policies of Democratic President Joe Biden....

The trial began Friday, and prosecutors called more than a dozen law enforcement officers, Riley’s roommates and a woman who lived in the same apartment as Ibarra. Defense attorneys called a police officer, a jogger and one of Ibarra’s neighbors on Tuesday and rested their case Wednesday morning.

This Newsweek article, headlined "Why Laken Riley's Killer Isn't Facing Death Penalty in Georgia," explains that the "Western Judicial Circuit District Attorney's Office announced before Ibarra's trial that it would not seek the death penalty. District Attorney Deborah Gonzalez, a progressive Democrat, faced criticism from Republicans over the decision."  I have seen this criticism being expressed in a number of commentary pieces today:

Via The Federalist, "Not Giving Laken Riley’s Killer The Death Penalty Is A Miscarriage Of Justice"

Via Fox News, "Laken Riley's murderer deserves the death penalty"

Via the National Legal and Policy Center, "Failure to Seek Death Penalty in Laken Riley Case is ‘Miscarriage of Justice’"

These reactions and claims that justice has not been served by a sentence less than death for this murderer leads me to the question that is the title of this post.  I suspect that clever lawyers at the Department of Justice could find a hook for a federal prosecution of this horrific murder, and the dual sovereignty doctrine clearly allows the federal government to pursue its distinct interests after Georgia's prosecution.  So I believe the US Justice Department could at least try to pursue a capital prosecution in this case, and thus the real question is whether it might decide it should.  

The Justice Department's so-called "Petite Policy" generally suggests limits on federal prosecutions after state prosecutions based on whether there is a "substantial federal interest" that was not vindicated by a state prosecution.  Though I am fairly certain the current Biden Administration will not see an interest in a follow-up federal prosecution just to seek a capital verdict, I suspect whatever new leaders Prez-Elect Donald Trump gets into DOJ could have a quite different view.

Infamous mother, serving life with parole for killing her two son 30 years ago, denied parole in South Carolina

This CBS News piece reports on a high-profile murderer being denied her bid for parole today after having served 30 years in prison.  Here are the basics:

A parole board decided unanimously Wednesday that Susan Smith should remain in prison, despite her plea that God has forgiven her for infamously killing her two young sons 30 years ago by rolling her car into a South Carolina lake while they were strapped in their car seats.

It was the first parole hearing for Smith, 53, who is serving a life sentence after a jury convicted her of murder but decided to spare her the death penalty. She is eligible for a parole hearing every two years now that she has spent 30 years behind bars.

Smith made her case by video link from prison. She started by saying she was "very sorry," then broke down in tears and bowed her head. "I know what I did was horrible," Smith said, pausing and then continuing with a wavering voice. "And I would give anything if I could go back and change it."  In her final statements, Smith said God has forgiven her. "I ask that you show that same kind of mercy, as well," she said.

Smith made international headlines in 1994 when she insisted for nine days that a carjacker drove away with her sons.  Prosecutors have long argued that Smith killed 3-year-old Michael and 14-month-old Alex because she believed they were the reason the wealthy son of the owner of the business where she worked broke off their affair.  Her attorneys blame her mental health.

A group of about 15 people urged against parole.  They included her ex-husband and the father of the boys, David Smith; his family members; prosecutors; and law enforcement officials.  Along with a few others, David Smith had a photo of Michael and Alex pinned to his suit jacket.  He struggled to get out words at first, pausing several times to compose himself.  He said he has never seen Susan Smith express remorse toward him. "She changed my life for the rest of my life that night," he said. "I'm asking that you please, deny her parole today, and hopefully in the future, but specifically today," he said, adding that he plans to attend each parole hearing to make sure Michael and Alex aren't forgotten.

A decision to grant parole requires a two-thirds vote of board members present, according to the state. Parole in South Carolina is granted only about 8% of the time and is less likely with an inmate's first appearance before the board, in notorious cases, or when prosecutors and the families of victims are opposed.  

California Gov to hold off on Menedez clemency decision pending resentencing review by new DA

As reported in this Fox News article, California's Gov has made a non-decision concerning the clemency requests from the Menedez brothers: "Gavin Newsom has reached a decision on a pair of clemency requests for Erik and Joseph 'Lyle' Menendez, the two Beverly Hills brothers serving life without parole for the murder of their parents in 1989.  He will hold off until the newly elected Los Angeles District Attorney Nathan Hochman has time to review the case, respecting the will of the voters who sent the far left progressive George Gascon packing on Election Day, he said." Here is more:

"The Governor respects the role of the District Attorney in ensuring justice is served and recognizes that voters have entrusted District Attorney-elect Hochman to carry out this responsibility," Newsom's office said in a statement. "The Governor will defer to the DA-elect’s review and analysis of the Menendez case prior to making any clemency decisions."

Hochman, a former federal prosecutor and assistant U.S. attorney general during the President George W. Bush years, previously told Fox News Digital he would not reach a decision of his own until he becomes "thoroughly familiar" with all aspects of the case....

The Menendez brothers' resentencing hearing, requested by Gascon just days before he lost his re-election bid, is scheduled for Dec. 11. "Once I take office on December 3, I look forward to putting in the hard work to thoroughly review the facts and law of the Menendez case, including reviewing the confidential prison files, the transcripts of the two trials, and the voluminous exhibits as well as speaking with the prosecutors, defense attorneys and victim family members," Hochman said Tuesday....

The brothers have been held on sentences of life without the possibility of parole since 1996, after their second trial in the shotgun murders of their parents, Jose and Mary "Kitty" Menendez, who they ambushed in their living room. The first ended in a mistrial a few years earlier. They said they killed their dad in self-defense, believing he would have killed them after they warned him they would expose him as a child sex abuser. Their mom was sitting next to him, eating ice cream and watching TV when they started shooting from behind....

Hochman could continue where Gascon left off and seek the resentencing, ask the judge to withdraw the prior administration's resentencing request or file additional briefs to give the judge more material to work with as the court considers the matter....

If Hochman's office continues down the resentencing road, Newsom still has the final say. If the brothers' sentences are reduced to something that would make them eligible for parole, the governor has veto power over parole board decisions. He could also issue clemency or a pardon on his own.

A separate habeas corpus petition is also making its way through the court, which would be an additional path to freedom if successful. Their petition is based on newly emerged evidence in support of their allegations of child abuse against their father – a corroborating letter of unconfirmed origin and the word of Roy Rosello, a former Menudo member who said he too had been abused by Jose Menendez as a child.

Prior recent related posts:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so
• LA District Attorney announces that he will seek resentencing for the Menendez brothers
• Continuing coverage and comment on Menendez brothers' possible resentencing 

New Prison Policy Initiative briefing urges outgoing governors and Prez to grant capital clemency

The Prison Policy Initiative is aparently okay with one group of prisoners potentially spending longer in prison, as it has this new briefing urging clemency action to take condemned murderers off death row.  The themes of the briefing is spelled out in the full title: "Talking turkey about the death penalty: outgoing governors and the president must use their clemency power now: President Biden and three governors should use their clemency powers before they leave office to save the lives of people facing the death penalty, our nation’s cruelest punishment."  Here is how the report gets started:

Every November, it has become a light-hearted tradition for the president and some governors to “pardon” turkeys before the Thanksgiving holiday, sparing them from the dinner table. But when the nation’s political leaders take part in an annual turkey pardon, it’s hard not to think about the chronic underuse of clemency powers across the U.S., especially for people on death row.

If turkey pardons are about choosing life over death, using clemency powers to empty remaining death rows is a straightforward way for elected leaders to act on those values and reject a horrific practice. President Biden and the outgoing governors of North Carolina, Indiana, and Missouri in particular can use clemency for those facing a state-sanctioned death before they leave office early next year. More than a dozen other governors can stop executions in their states, too, by exercising their unilateral power to modify or reduce criminal convictions and sentences at any time.

In this briefing, we show that the outgoing president and some governors’ tactless traditions of granting relief to turkeys casts a harsh light on their records of granting relief to people condemned to die. Ultimately, their legacies won’t be shaped by crass Thanksgiving rituals, but by how they tapped their power to intervene in the moral atrocity that is the death penalty.

Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations

In this recent post, I flagged a number of press pieces providing various forms and sources of advice for Prez Biden concerning how he should use his clemency power on his way out the White House door.  While we await to see how the outgoing Prez decides to use his clemency pen, we can also note some of the notable recent press discussions of how the incoming Prez might use his clemency power as soon as he returns to the Oval Office:

From the Cincinnati Enquirer, "Lawyer: Ex-Ohio House Speaker Larry Householder seeks pardon from President-elect Trump"

From Fox News, "Eric Adams dodges question when pressed if he's 'embracing' Trump to get a pardon for criminal charges"

From the Military Times, "Veterans involved in Jan. 6 riot expect Trump to keep pardon promise"

From MSN, "'Tiger King' Joe Exotic begs Donald Trump for pardon and offers to join his cabinet"

From Newsweek, "Will Donald Trump Pardon Diddy? Former Employee Weighs In"

From the New York Times, "Proud Boys Leader Convicted of Sedition for Role in Jan. 6 Attack Asks Trump for Pardon"

From Vulture, "So, Which Celebrities Will Donald Trump Pardon This Time?"

From Wired, "Silk Road Creator Ross Ulbricht Is Waiting for Trump to Keep His Word — and Set Him Free"

There have also been a broad array of article from various states highlighting the number of Jan 6 defendants in that state that may be expecting a pardon from Prez-Elect Trump as soon as he becomes President.  As I flagged in this recent post, it may prove logistically challenging for a new Trump Administration to make good on pardon promises right away unless they opt for a blanket pardon approach.

A few recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Prez Biden getting lots of advice concerning how he should use his clemency powers 
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

"The Miserly Message of Grants Pass"

The title of this post is the title of this new essay just posted to SSRN and authored by Meghan Ryan. Here is its abstract:

The Supreme Court’s recent opinion in Grants Pass v. Johnson condoned states’ attempts to police homeless encampments.  This was a significant blow to unhoused individuals and their allies.  But the Court’s opinion also continued its march away from the longstanding evolving-standards-of-decency approach in Eighth Amendment cases. Grants Pass was something of an odd case in which to grant certiorari, but it served as an opportunity for the Court to send a quiet message that it would continue narrowing the Eighth Amendment’s scope.  As in other recent cases, the Court applied a more historical approach than the one traditionally used in Eighth Amendment cases, focusing on the original meanings of “cruel and unusual” and “punishments.”  Further, the Court surreptitiously narrowed the definition of “cruel” to require governmental intent and raised significant questions about the meaning of “punishments.”  This is yet another case in which the Court has shown its intent to continue whittling away at defendants’ Eighth Amendment protections.

Prez Biden getting lots of advice concerning how he should use his clemency powers

Joe Biden has really been a lame-duck president for nearly four month since he announced in late July that he was not going to run for reelection.  But with the 2024 election now completed, Prez Biden is officially at the true lame-duck stage of his presidency, a period in which it is especially common for modern presidents to make extra use of their clemency pen.  Perhaps unsurpisingly, a lot of folks have a lot of advice for Prez Biden concerning how he should use his clemency power, and he is an abridged review of some coverage and commentary:

From the ACLU, "Biden Must Use Final Months in Office to Commute Federal Death Sentences"

From Paul Rosenzweig at The Atlantic, "Pardon Trump’s Critics Now: President Biden has a moral obligation to do what he can for patriotic Americans who have risked it all."

Harold J. Krent at The Hill, "How Biden can make pardons a stamp on his legacy"

From Chris Geidner at Law Dork, "Joe Biden has a moral, ethical responsibility to clear the federal death row"

From Bruce Ledewitz at the Pittsburgh Post-Gazette, "Mr. President: Pardon Donald Trump"

From Politico, "Biden faces pressure from Hill Democrats to grant clemency for drug crimes"

After prior stay, Texas Supreme Court rules state legislature lacked a lawful basis to impede execution

As reported in this AP piece, the "Texas Supreme Court on Friday ruled that a legislative subpoena cannot stop an execution after Republican and Democratic lawmakers who say Robert Roberson is innocent used the novel maneuver to pause his execution at the last minute." Here is more about the ruling and context:

The ruling clears the way for Roberson’s execution to move forward, weeks after a bipartisan group of state House lawmakers bought him more time by subpoenaing Roberson as he waited to be taken to the nation’s busiest death chamber.  Roberson was sentenced to death in 2003 for killing his 2-year-old daughter, Nikki Curtis.  He would be the first person in the United States to be executed over a conviction tied to “shaken baby syndrome,” a diagnosis that has been questioned by some medical experts.

A new execution date for Roberson has not been set, but it is certain to proceed unless Republican Gov. Greg Abbott grants a 30-day reprieve.  Abbott did not move to do so before Roberson’s original execution date and his office challenged the subpoena tactic used by lawmakers, accusing them of overstepping their power.

The state’s all-Republican high court agreed, ruling that “under these circumstances the committee’s authority to compel testimony does not include the power to override the scheduled legal process leading to an execution,” wrote Republican Justice Evan Young, issuing the opinion of the court.

The ruling addressed a subpoena issued for Roberson by the Texas House Criminal Jurisprudence Committee.  Roberson was scheduled to die by lethal injection on Oct. 17 when lawmakers, in a last-ditch effort, issued a subpoena to have him testify at the Texas Capitol days after his planned execution.  This spurred a legal conundrum between the state’s criminal and civil courts, which ultimately led to the Texas Supreme Court temporarily ruling in Roberson’s favor while it considered the matter.

Roberson has gained bipartisan support from lawmakers and medical experts who say he was convicted on faulty evidence of “shaken baby syndrome,” which refers to a serious brain injury caused when a child’s head is hurt through shaking or some other violent impact, like being slammed against a wall or thrown on the floor.

Rep. Joe Moody, who has led the effort to stop Roberson’s execution, said delaying the execution with the subpoena was “never our specific intention” and added that the court “rightly agreed” that the subpoena and lawsuit were valid. Moody insisted that Roberson could still be called to testify since the court ruling “reinforced our belief that the Committee can indeed obtain Mr. Roberson’s testimony and made clear it expects the executive branch of government to accommodate us in doing so.”

Prosecutors said that Roberson killed his daughter by shaking her violently back and forth.  Roberson’s attorneys have argued that the child’s symptoms did not align with child abuse and that she likely died from complications with severe pneumonia.  His case has garnered support from nearly 90 lawmakers across party lines and civil rights advocates who say Roberson is innocent and that he has not been given a fair trial under the state’s “junk science law.”...

The parole board voted to not recommend clemency for Roberson before his scheduled execution date, and the governor’s office said lawmakers had stepped out of line when they issued the subpoena.

The full 30-page ruling from the Texas Supreme Court is available at this link.  It is my understanding of Texas law that a new execution date cannot be set less than 90 days out from the date of its request, so it would seem Robertson could not be secheduled for execution February 2025.

Prior related post:

• Amid serious claims of innocence, Texas Supreme Court halts execution based on legislative subpoena 

Notable new sentencing reform recommendations from New Jersey commission

As reported in this local article, New Jersey's Criminal Sentencing and Disposition Commission this week issued its annual report that makes four notable sentencing recommendations. Here are details and context:

The group, which is made up of representatives from every facet of New Jersey’s criminal justice system along with designees from all three of New Jersey’s branches of government, is chaired by Chris Porrino of Lowenstein Sandler, and the former attorney general for the state of New Jersey.

Tasked with making recommendations to Gov. Phil Murphy and the Legislature on a yearly basis to promote a “rational, just, and proportionate sentencing scheme,” the group also offered [these] recommendations: ...

1. Eliminate some mandatory minimums....

2. Allow sentencing judges to consider the fact that a person was abused by the victim of their crime....

3. Allow those who have served long sentences and have aged past 60 (or 62 in some cases) to apply for a reduced sentence....

4. Permit judges to reduce or waive fines and other fees assessed against those convicted of crimes

This additional local article, headlined "Ending mandatory sentences for non-violent drug crimes back in play in N.J.," provides some additional details and context.

UPDATE:  I just found this online version of the letter that was sent to Gov Murphy with the reform recommendations.  Notably, it seems none of thise years recommendations are new, but they are all reiterations of recommendations previously made in prior reports from New Jersey's Criminal Sentencing and Disposition Commission.

President-elect Donald Trump selects Matt Gaetz to serve as US Attorney General ... UPDATE: and eight days later he withdraws

As reported in this Fox News piece, "President-elect Donald Trump on Wednesday announced Rep. Matt Gaetz, R-Fla., as his pick for attorney general."  Here is more:

If confirmed, Gaetz will head up the Justice Department after Trump is sworn in for his second term in January.

Early contenders for the post included sitting U.S. senators, former Justice Department personnel and at least one top White House adviser from Trump's first term.

"He's going to want someone who he knows, likes and trusts," Former Acting Attorney General Matt Whitaker told Fox News about the role last week. "He's going to want someone who was there from the beginning."

Wow!  Here is more from a now-updated piece from Fox News:

Trump first announced his nomination in a post on Truth Social, saying Gaetz "has distinguished himself in Congress through his focus on achieving desperately needed reform at the Department of Justice."

Gaetz confirmed the nomination on the social media site, X, adding "It will be an honor to serve as President Trump’s Attorney General!"

In his statement on Truth Social, Trump praised Gaetz for his experience on the House Judiciary Committee, where he said Gaetz "played a key role" in "defeating the Russia, Russia Hoax," and exposing what Trump described as "alarming and systemic Government Corruption and Weaponization."

"He is a Champion for the Constitution and the Rule of Law."

UPDATE: It seems this pick for US Attorney General is not likely to get a warm reception from the Senate, as evidenced by this new Politico piece headline: "‘Reckless pick’: Lawmakers express doubts that Gaetz can get confirmed as attorney general; ‘I think he has a zero percent shot of getting through the Senate,’ said Donald Trump ally Rep. Max Miller."

ANOTHER UPDATE ON NOVEMBER 21: As this FOX News piece reports, "Matt Gaetz, the former Florida representative and Trump nominee for Attorney General, announced Thursday that he is withdrawing as Trump's pick for the top prosecutor, citing what he described as the 'distraction' his nomination had caused due to a swirl of allegations about paying underage women for sex." 

Harvard Law Review covers some of the notable criminal justice rulings from last Term in SCOTUS issue

As true law nerds know, the November issue of the Harvard Law Review is always focused on the Supreme Court's work in the prior Term.  And it has become somewhat of an annual tradition for me to be somewhat disappointed when the November HLR SCOTUS issue does not give considerable attention to the Court's considerable criminal justice work.   

This year, as the full HLR SCOTUS issue reveals, criminal justice cases do get some love in the student case commentaries (and I suppose it makes sense that the Foreword and lead commentaries are focused on other topics).  But while it is heartening to see some of the noteworthy criminal cases of OT 2023 SCOTUS covered in case comments in this issue, Apprendi fans will know what I consider to be a notable ommission frin this list:

• United States v. Rahimi
• McElrath v. Georgia
• Smith v. Arizona
• City of Grants Pass v. Johnson
• Fischer v. United States

On all sorts of grounds, I think Erlinger v. US is worthy of much more attention and commentary than McElrath  Similary, since I already authored a commentary on Pulsifer v. US, it also seems to me quite note-worthy.  (And cases like Diaz v. US and Snyder v. US also seem worth a mention, too.)  Of course, I fully understand why not everyone is ever-focused on the parts of the SCOTUS docket that gets me most exited.  But that won't keep me from this kind of annual moaning.

Pentagon secrets leaker sentenced after plea deal to 15 years in prison

Professor Sam Merchant, in a forthcoming article to appear in the next issue of the Federal Sentencing Reporter, makes the astute point that it is hard to assess or even understand judicial sentencing discretion exericised by federal judges after Booker without a deeper understanding of plea practices.  As he puts it: "If binding or nonbinding plea agreements actually drove the [most federal] sentences, any discussion of judicial discretion that ignores the central role of plea agreements is at best incomplete and at worst inaccurate or misleading."  This insight came to mind when I saw this AP report about today's high-profile sentencing of a "Massachusetts Air National Guard member to 15 years in prison after he pleaded guilty to leaking highly classified military documents about the war in Ukraine." Here are the basics:

Jack Teixeira pleaded guilty earlier this year to six counts of willful retention and transmission of national defense information under the Espionage Act following his arrest in the most consequential national security case in years....

The security breach raised alarm over America’s ability to protect its most closely guarded secrets and forced the Biden administration to scramble to try to contain the diplomatic and military fallout.  The leaks embarrassed the Pentagon, which tightened controls to safeguard classified information and disciplined members found to have intentionally failed to take required action about Teixeira’s suspicious behavior....

Earlier in court, Assistant U.S. Attorney Jared Dolan told [Judge] Talwani that 200 months — or a little more than 16 1/2 years - was appropriate given the “historic” damage caused by Teixeira’s conduct that aided adversaries of the United States and hurt the country’s allies.  He also said that recommendation by prosecutors would send a message to anyone in the military who might consider similar conduct....

But Teixeira’s attorney Michael Bachrach told the judge Tuesday that 11 years was sufficient. “It is a significant, harsh and difficult sentence, one that will not be easy to serve,” Bachrach said. “It will serve as an extreme deterrent to anyone, particularly young servicemen. That is enough to keep them deterred from committing serious conduct.”

When Teixeira pleaded guilty, prosecutors said they would seek a prison term at the high end of the sentencing range. But the defense wrote in their sentencing memorandum earlier that the 11 years “would be essentially equal to half the life that Jack has lived thus far.”

His attorneys had described Teixeira as an autistic, isolated individual who spent most of his time online, especially with his Discord community.  They said his actions, though criminal, were never meant to “harm the United States.” He also had no prior criminal record.  “Instead, his intent was to educate his friends about world events to make certain they were not misled by misinformation,” the attorneys wrote.  “To Jack, the Ukraine war was his generation’s World War II or Iraq, and he needed someone to share the experience with.”

Prosecutors in court filings countered that Teixeira did not suffer from any intellectual disability that would prevent him from knowing right from wrong, adding his post-arrest diagnosis of “mild, high-functioning” autism was of “questionable relevance” to the proceedings.

Why, one might wonder, did the prosecution "only" argue for a 16+-year sentence while the defense was "only" advocating for 11 years?  Becuase the parties defined those numbers as the acceptable sentencing range in this case via the plea agreement.  Perhaps the district judge here might have thought to impose a 15-year sentence without the plea agreement providing this binding anchor on the outcome, but we can never really know.

Highlighting notable rulings for when federal prisoners can start earning time credits under the First Step Act

Walter Pavlo has this notable new Forbes piece, headlined "Courts Continue To Hand Bureau Of Prisons Losses On First Step Act," highlighing how courts showing a lack of deference to federal agencies can be helpful to federal prisonsers.  I recommend the piece in full, and here are excerpts: 

The Federal Bureau of Prisons (BOP) is still having issues interpreting the First Step Act (FSA), which was enacted in December 2018 under Donald Trump. As Trump returns to the White House next January, he’ll see a BOP that is still struggling in implementing FSA, which was meant to save money on incarceration. However, the BOP has continued to interpret the FSA in a way that favors longer incarceration in institutions rather than sending men and women into lesser restrictive community options, such as halfway houses and home confinement. A judge in the Middle District of Alabama made a ruling that could affect the sentences of thousands of federal prisoners, if the BOP would make a broader change to its policies rather than addressing issues one at a time in court....

The BOP was tasked with implementing FSA and the law seemed easy when the law was passed. It allowed some prisoners, minimum and low security, who did not have a disqualifying crime, to participate in programming to earn up to 365 days off of their sentence. They can further earn credits toward prerelease custody, halfway house and home confinement. But when a prisoner can start earning was defined by the BOP as starting when a person arrives at his/her designated institution. That turns out is a big deal.

Many prisoners, particularly those who are minimum security, are allowed to voluntarily surrender to prison weeks after sentencing. When the person arrives at prison, that is when their sentence starts and when they can start earning FSA credits. However, there are other prisoners who are in custody at sentencing or who are taken into custody at sentencing, who need to wait for their designation and then be transferred to the prison. This process can take months and the BOP has determined that the time between the sentence and when the person in custody arrives at the institution is not counted toward FSA credits. While this may not be that big of a deal for a single prisoner as it relates to days off the sentence, this situation happens to thousands of prisoners every day, making it a huge cost to the BOP in thousands of prisoner days....

Beyond savings, Courts have handed the BOP a series of defeats in its interpretation of FSA. Some of these could actually save the BOP more money, if only it would listen to the judges who have ruled against it on allowing prisoners to earn FSA credits after sentencing but before they reach their final designation.

In a New Hampshire federal case (Austen Yufenyuy v Warden FCI Berlin), Austen Yufenyuy was in federal prison at FCI Berlin (New Hampshire) challenged the BOP’s rule of starting FSA credits only after the prisoner arrived at the institution. Yufenyuy was sentenced and spent months in transit before he got to his designated institution and the BOP denied giving him credits for that time that he was on the road from the courthouse to his final designated institution. The judge in that case ruled that Yufenyuy should get his credits, which he did. He was subsequently released but the BOP did not apply this ruling to any other prisoners, nor did they appeal the decision. It should be noted, that the Yufenyuy was made in March 2024, months before the Supreme Court ruled in the Loper case.

Now a judge has referenced Loper in a decision that, like Yufenyuy, granted prisoner Sohrab Sharma (Middle District of Alabama, Case No.: 2:24-cv-158-RAH-KFP) his FSA credits for the time he was in custody at sentencing until the time he arrived at his designated institution. U.S. District Judge R. Austin Huffaker, Jr. noted that the BOP has used its discretion in the past to award FSA credits when the person was not at the designated institution but did this on a case-by-case basis. Judge Huffacker concluded, “[T]ime Credits are available for successfully completed programing unless that programming is completed: (1) “prior to the date of enactment of this subchapter; or ... during official detention prior to the date that the prisoner’s sentence commences under section 3585(a);” or (2) the prisoner is otherwise ineligible under section 3632(d)(4)(D). Sharma does not meet any of these disqualifications.” Huffaker is hardly a bleeding-heart liberal. He was appointed by Trump.

Is attempted murder under New York law a "crime of violence" under federal law?

The question in the title of this post likely seems a bit ridiculous.  And yet this question is the issue being considered by the Supreme Court at oral argument this morning in Delligatti v. US.  To be precise, here is the (lengthy) question presented in the petitioner's brief: 

Under 18 U.S.C. § 924(c)(3)(A), a felony qualifies as a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 

Courts have disagreed about how to apply use-of-force language to crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action. In the decision below, the Second Circuit held that any crime requiring proof of death or bodily injury categorically involves the use of physical force, even if it can be committed through inaction — such as by failing to provide medicine to someone who is sick or by failing to feed a child. 

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

The government's brief is more economical in its statement of the issue in Delligatti: "Whether attempted murder, in violation of the Violent Crimes in Aid of Racketeering statute, 18 U.S.C. 1959(a)(5), is a crime of violence under 18 U.S.C. 924(c)(3)."  (The charge of attempted murder underlying petitioner’s Section 924(c) count was premised on petitioner’s commission of New York attempted second-degree murder.)

Though I expect "normies" could answer the question in the title of this post without difficulty, astute federal criminal lawyers likely know why this question is not so simple.  The so-called "categorical approach" to sorting out what are "crimes of violence" under federal law has been bedeviling lawyers and judges for decades now, and Delligatti is just the latest variation on the theme.  Helpfully, this recent Law360 analysis of the case, headlined "High Court 'Violent Crimes' Case Tangled Up In Hypotheticals," provides a detailed account of this tale as old as ugly jurisprudential time as well as the parties' arguments in Delligatti.  I recommend that piece in full, and it concludes with a call to Congress to jettison the mandatory minimum at issue here altogether:

Delligatti shows how the categorical approach relies on hairsplitting legal hypotheticals and reaches absurd results.... So long as the Supreme Court remains supportive of the categorical approach and requires its implementation when analyzing elements clauses, lower courts cannot simply get rid of the categorical approach.  However, Congress can get rid of Section 924(c), with minimal consequences.

As the federal defenders explained in their amicus brief, even without Section 924(c), those convicted of violent crimes will still face long sentences, "even if their crimes are not technically ones of 'violence.'"...  Even without mandatory sentences, judges can impose sentences that fit the specific circumstances of individual defendants. In some cases, this might reduce the costs of our overgrown carceral system.  And where it is warranted, decades-long incarcerations can still be imposed without Section 924(c), and without the time-wasting uncertainty caused by the categorical approach. 

After Delligatti, Congress should recognize that requiring hypertechnical arguments regarding enhancements leads to counterintuitive outcomes and unnecessarily long prison sentences, and repeal Section 924(c). 

I am not expecting Congress to get rid of 924(c) mandatory minimums anytime soon, but it will be interesting to see if SCOTUS is willing to keep advancing limiting constructions of this statute.

How about some clemency grants, Prez Biden, to really honor vets in need on Veterans Day?

On Veterans Day, I often find myself thinking about veterans who, after serving our country in the military and thereby supporting our nation's commitment to liberty and freedom, return home to discover the hard way that these constitutional values are not always paramount in our modern criminal justice systems.  The Council on Criminal Justice (CCJ) has created a Veterans Justice Commission which has done a lot of extraordinary work in this space, and I have linked below some prior posts on CCJ's important efforts to spotlight the wide array of issues at the intersection of military service and criminal justice systems.  For example, this recent CCJ report highlights what (little) we know about justice-involved veterans: 

Approximately one third of veterans indicate that they have been arrested at least once in their lifetime, but that statistic relies on self-reported data.  In addition, the most recent estimate of incarcerated veterans comes from 2011; it identified 181,500 veterans in state and federal prisons and local jails.  These two findings underscore an unfortunate truth: reliable data on justice-involved veterans and the circumstances surrounding their criminal offending is sorely lacking.

Usefully, the most recent CCJ report focused on veterans gives attention to some of my favorite topics, second-look sentencing and clemency, to advocate on behalf of the veteran incarcerated population:

Within this push for second looks, little has been done to consider opportunities for incarcerated veterans to request resentencing based on facts related to their military service.  California is an exception.  In 2022, the legislature passed a penal code amendment that allows veterans suffering from one or more specified service-related conditions to seek resentencing....

Beyond resentencing, the consideration of military service might also be extended to the parole, pardon, and clemency processes, where it is often overlooked.  By not fully and formally considering military service as part of release decisions, crucial context may be missed, potentially denying veterans opportunities for parole, pardon, or clemency.

As the title of this post highlights, I would like to see President Biden operationize this recommendation today by using his historic clemency powers to salute at least a few veterans in federal prison with commutations and at least a few veterans who are out of federal prison with pardons.  There is much chatter these days about to whom Prez Biden might grant clemency on his way out and to whom Prez-Elect Trump might grant clemency on his way in, and yet it seems only "high-profile" crimes and criminals are getting much attention.  That reality is not suprising, but it is still quite disappointing on a Veterans Day when we all should know that there are plenty of low-profile veterans who surely merit clemency consideration.

Prior related posts:

• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 
• Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems 
• CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing" 
• Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans 
• CCJ's Veterans Justice Commission releases new report with recommendations on aiding veteran reentry 

Rounding up various accounts of Election 2024 on crime and punishment

I flagged in this post the morning after Election Day 2024 the results on various state initiatives that detailed that voters in many states have turned against progressive criminal justce reforms reforms.  The overwhelming voter support for California's Proposition 36, titled "Increase Sentences for Drug and Theft Crimes," and the ouster of a number of progressive California DA's has served as the focal point for much subsequent press coverage and commentary on these issues, though a number of the pieces rounded up below cover a lot of additional notable ground:

From City Journal, "The Anti-Crime Election: What some state and local results say about the future of public safety in America"

From Fox News, "'Failed experiment': Experts reveal why Soros-backed policies took beating in deep blue state"

From The Marshall Project, "Key Criminal Justice Takeaways from the 2024 Election"

From National Review, "Law and Order Politics Are Back"

From the New York Times, "Voters Sent Mixed Message on Crime and Law Enforcement"

From Politico, "California deals criminal justice reform a punishing blow"

From Vox, "Tough-on-crime laws are winning at the ballot box"

What might the second Trump term mean for the death penalty?

The question in the title of this post defies any quick analyses, especially since there may be a number of different stories to unpack related to death penaly law (both constitutional and statuory) and death penalty administration (prosecutions, sentences and executions).  In addition, though a President and his Justice Department can have the most direct impact on federal capital punishment, there are also various ways that federal officials (and federal politics) can impact state capital justice systems.  And yet, all these nuances aside, we can still simply matters by saying a second Trump term likely means more use of, and attention on, the death penalty.

This lengthy new NBC article, headlined "Trump wants to expand the federal death penalty, setting up legal challenges in second term," overview some the federal capital punishment issues.  Here are excerpts:

Throughout his campaign, President-elect Donald Trump signaled he would resume federal executions if he won and make more people eligible for capital punishment, including child rapists, migrants who kill U.S. citizens and law enforcement officers, and those convicted of drug and human trafficking....

While it remains unclear how Trump would act to expand the death penalty, anti-death penalty groups and criminal justice reform advocates say they are taking his claims seriously, noting the spree of federal executions that occurred during his first term....

At the tail end of Trump’s first term, 13 federal inmates were put to death — even as the pandemic led states to halt executions because of Covid concerns in prisons. The cases included the first woman executed by the federal government in nearly 70 years; the youngest person based on the age when the crime occurred (18 at the time of his arrest); and the only Native American on federal death row.

No president had overseen as many federal executions since Grover Cleveland in the late 1800s, and the U.S. government had not executed anyone for more than 15 years until Trump revived the practice.  His then-attorney general, William Barr, had said that the federal government “owed it to victims to carry out the sentence imposed by the justice system.”

President Joe Biden had campaigned on passing legislation to eliminate the death penalty at the federal level, but pulled back on that in office. Instead, Attorney General Merrick Garland announced a moratorium in 2021 to review the federal execution protocols....  Meanwhile, the Justice Department under Biden and Garland has not sought the death penalty in federal cases that could have warranted it, and has even withdrawn death penalty sentences in about two dozen cases that it had inherited....

There are currently 40 inmates, all men, on federal death row, according to the nonpartisan Death Penalty Information Center. They include gunmen responsible for mass shootings in South Carolina and Pittsburgh and the man convicted in the Boston Marathon bombing....

More than 40 federal laws provide for the death penalty, with nearly all dealing with murder or an illegal act that results in death.  Whether Trump would expect federal prosecutors to seek death in cases that don’t explicitly involve murder — for instance, the rape of a child — remains to be seen, but the Death Penalty Information Center notes that a 2008 Supreme Court ruling prohibits the execution of people convicted of raping children and says it’s unclear if the use of the federal death penalty would be constitutional in certain cases in which someone was not killed.

Federal plea deals with three 9/11 defendants for LWOP sentences apparently revived by military judge

This AP article reports that a "military judge has ruled that plea agreements struck by alleged Sept. 11 mastermind Khalid Sheikh Mohammed and two co-defendants are valid, voiding an order by Defense Secretary Lloyd Austin to throw out the deals, a government official said." Here is more:

The official spoke on condition of anonymity Wednesday because the order by the judge, Air Force Col. Matthew McCall, has not yet been posted publicly or officially announced.

Unless government prosecutors or others attempt to challenge the plea deals again, McCall’s ruling means that the three 9/11 defendants before long could enter guilty pleas in the U.S. military courtroom at Guantanamo Bay, Cuba, taking a dramatic step toward wrapping up the long-running and legally troubled government prosecution in one of the deadliest attacks on the United States.

The plea agreements would spare Mohammed and two co-defendants, Walid bin Attash and Mustafa al-Hawsawi, the risk of the death penalty in exchange for the guilty pleas.

Government prosecutors had negotiated the deals with defense attorneys under government auspices, and the top official for the military commission at the Guantanamo Bay naval base had approved the agreements.

I do not know enough about Gitmo prosecutions or military justices to say whether this is the end of the matter, nor do I know if the coming change in federal administrations could be another wrinkle in any smooth plans to resolve these cases.  But I have an inkling that there are more chapter ahead in this very long running saga.

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

How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?

Throughout his succesful campaign for a return to the Oval Office, Donald Trump spoke repeatedly about pardoning persons federally prosecuted for their behaviors at the Capital on January 6, 2021.  With Trump now Preident-Elect, those promises are already leading to court filings in on-going Jan. 6 prosecutions as detailed in this new article:

Hours after most news outlets declared Donald Trump the winner of the presidential election, lawyers for January 6 defendants started to file motions, hoping to reap the benefits.

On Wednesday morning, an attorney for Christopher Carnell, who was found guilty of obstruction and other charges related to the riot on January 6, 2021, filed a motion to postpone a status hearing scheduled for Friday....  Carnell sought to move the hearing to December because he "is now awaiting further information from the Office of the President-elect regarding the timing and expected scope of clemency actions relevant to his case."... A judge denied Carnell's request on Wednesday....

An attorney for Jaimee Avery, another January 6 defendant, also filed a motion to delay a sentencing hearing scheduled for Friday.  Avery's lawyer is seeking to postpone it until after the presidential inauguration in January because of the "real possibility that the incoming Attorney General will dismiss Ms. Avery's case or, at the very least, handle the case in a very different manner."  As such, it would be "fundamentally unfair" for Avery to be sentenced this week....

The Justice Department's investigations and trials related to January 6 are ongoing. As of November, the Justice Department said that over 1,532 people had been charged, including 571 people who face felony charges of assaulting or impeding the police....

Trump has maintained that he would pardon many of the defendants, with the exception of those who are "evil and bad," he told Time in April.  Speaking to the National Association of Black Journalists in July, Trump said he would "absolutely" pardon rioters. "If they're innocent, I would pardon them," he said. "They were convicted by a very tough system."

Obviously, it is not entirely clear just what Trump may mean by "innocent" and "evil and bad" as determinants of who he will and will not pardon among the Jan. 6 defendants once he gets back to the White House.  But it does seem Trump is disinclined to issue a blanket pardon to all the Jan. 6 defendants.  And, as detailed in this April 2024 NBC piece, the Trump campaign was eager to stress that Jan. 6 clemency would involve a "case-by-case" process:

Former President Donald Trump ...  said that, if elected, he'd "absolutely" consider pardoning every single one of the hundreds of criminals convicted in connection with the attack on the U.S. Capitol.  But Trump's campaign, in a statement to NBC News, said such pardons would be "on a case-by-case basis," not the sort of blanket pardon Trump referred to in a recent interview with Time magazine....

"As President Trump has promised, he will pardon January 6th protestors who are wrongfully imprisoned by Crooked Joe Biden’s Justice Department, and those decisions will be determined on a case-by-case basis when he is back in the White House,” Karoline Leavitt, national press secretary for the Trump campaign, said.

I would guess that more than a few January 6 defendants and their supporters are already preparing clemency materials and that folks may already be trying to get them to Prez-Elect Trump and his team well before he takes office on January 20, 2025.  That reality leads me to wonder just what kind of clemency process Trump and his team might adopt to review the huge universe of 1,500+ Jan. 6 defendants that may seek clemency. 

Notably, Trump during his first term showed little interest in utilizing the traditional (and traditionally slow) Justice Department process for reviewing clemency applications.  But he also only issued a few dozen clemency grants before his final year in office and many of those involve high-profile political cases.  In his final year in his first Term (and especially once he was a lame duck), Trump ramped up his clemency grants, though finishing with still less than 250 total grants over four years.  Carefully reviewing and making case-by-case clemency decisions for all the Jan. 6 defendants would be a massive undertaking that could easily take the Trump team years, and I have to think this work will not be the new administration's top priority.

Notably, President Obama's experiences with clemency in the final years of his seoncd term provides a possible template for this kind of work, though I doubt the Trump team is likely to follow this model.  Working with the Justice Department, as detailed here, the Obama Administration created Clemency Project 2014 (CP14) which set forth a set of criteria for a kind of preferred clemency review at the Justice Department and in the White House.  The administration of CP14 had all sorts of ups and down, but in the end it helped Prez Obama grant a record number of federal commutations (over 1700).  Might Trump create some kind of CP25 to deal with the Jan. 6 cases?  

Interesting times.

What could (and what should) happen with Prez-Elect Trump's upcoming New York state sentencing?

Various media outlets today are reporting, as articulated in the headline of this article in The Hill, that "Trump’s victory likely means curtains for criminal prosecutions."  For three of Prez-Elect Trump's four on-going criminal prosecutions, that basic analysis seems largely right.  But for his New York state case, with jury verdict of multiple convictions and sentencing scheduled for later this month, I think the dynamics are more uncertain and perhaps more interesting.  

I am inclined to presume that Trump's lawyers will now seek an (indefinite?) delay of the sentencing now scheduled for November 26.  And yet, I can construct an argument for why Trump and his lawyers might want the sentencing to just go forward now.  If NY criminal procedure does not allow Trump to appeal his convictions until a sentence is imposed, perhaps he would want the sentencing to go forward so he can then seeking to have all his convictions overturned on appeal.  I assume Trump could get his sentence, whatever its terms, stayed while appealing his conviction.

Speaking of possible sentencing terms, if the sentencing were to go forward in two weeks, it seem extremely unlikely that Justice Merchan would impose imprisonment or any onerous condictions of probation on a President Elect.  Having just been elected President of the United States is quite the unique changed personal circumstance to raise at sentencing, and it has to be a mitigating factor.  If real life was one big sit-com, perhaps Justice Merchan could come up with some comical and creative "shaming sentence" for Trump (eg, having him post a video on Truth Social about the importance of proper bookkeeping).  But I am not sure it would be good at all to risk turning the theater of Trump's sentencing into theatre of the absurd. 

Because the Supreme Court's ruling in Trump v. United States only formally addressed "conduct alleged to involve official acts during his tenure in office, that ruling still seems not directly applicable.  But now that Trump is President-Elect, his lawyers might reasonably seek to draw on that ruling as well as broader constitutional principles to try to derail the case entirely.  I doubt any party wants to engaged in robust and novel constitutional litigation at this point, thought it still seems like a possibility.  {Update: I just saw an article reminding me that Justice Merchan has stated he would rule on a pending motion to dismiss based in part on the Trump ruling by next week.  Specifically, in this order, he indicated that the "motion to set aside the jury verdict and to dismiss the indictment will be handed down off-calendar on November 12, 2024."] 

Finally, I cannot help but wonder if New York Governor Kathy Hochul might consider offering Trump a pardon for his New York convictions.  For political reasons, I assume she would not.  But it could be quite an interesting gesture from a prominent Deocratic offical and could be pitched as a stateperson's response to Trump's call "to help our country heal."  Of course, a pardon does not serve to fully erase a criminal conviction, and so Trump might not even except a pardon even if one was offered.

Interesting times.

"An Early Look At Trump's Supreme Court Shortlist"

In a number of prior posts, I expressed disappointment that now-Prez-Elect Donald Trump did not provide while on the campaign trial a Supreme Court short list as he had in both 2016 and 2020. But, helpfully, this morning Law360 has this new article with the headline that is the title of this post.  Here are excerpts for those already interested in SCOTUS speculating:

Trump didn't campaign heavily on the Supreme Court, instead focusing on issues like immigration and the economy. But his presumed win Wednesday would give him the chance to appoint two additional justices to the high court if either Justices Clarence Thomas, 76, or Samuel Alito, 74, decide to retire in the next four years. Neither Justices Alito nor Thomas have publicly announced plans to retire in the next four years, but they could strategically decide to step down to ensure like-minded justices succeed them.

Law360 took an early look at some of the judges whose names may top Trump's nominee shortlist.

The first three candidates all sit on the Fifth Circuit: U.S. Circuit Judges Stuart Kyle Duncan, Andrew S. Oldham and James C. Ho....

Next on the list is Sixth Circuit Judge Amul Thapar, who was appointed to the court by Trump in 2017 and has quickly become one of the leading so-called feeder judges whose clerks appear more likely to later clerk at the Supreme Court....

Another top feeder judge, D.C. Circuit Judge Gregory G. Katsas was appointed to the appellate court by Trump in 2017....

Ninth Circuit Judge Lawrence VanDyke, who was appointed to the court by Trump in 2020, could also be on the president's shortlist if a Supreme Court vacancy arises....

Several other names have been suggested as potential Supreme Court nominees, including Southern District of Florida Judge Aileen M. Cannon, the judge who dismissed Trump's classified documents federal indictment, and Kristen Waggoner, CEO and general counsel at Alliance Defending Freedom, the legal advocacy group behind recent religious freedom wins handed down by the Supreme Court.

It will be interesting to see in the coming months whether and how chatter about Justices Thomas and Alito stepping down develops.  Both are still relatively young by recent government service standard.  Not only are they years younger than now-Prez-Elect Donald Trump, but even by 2028, they will both still be at a younger age than the last three Justices to leave the Court.  (Justices Stephen Breyer and Anthony Kennedy were in their early 80s when they stepped down, Justice Ruth Bader Ginsburg was 87 when she passed away.)   And if Justice Thomas serves into 2028, he could end up the longest serving Justice of all-time. 

[Update: On the topic of age and the future federal judiciary, I just saw an article stating that "Senator Chuck Grassley (R-Iowa) will take the gavel of the Judiciary Committee."  Senator Grassley is 91 years old.  If Justices Thomas or Alito want to and are able to keep serving as Justices until they are Senator Grassley's vintage, they could remain on SCOTUS until the 2040s.]

Perhaps more important than age is the current composition of the Court.  With Supreme Court now comprised of a super-majority of conservative Justices, Justices Thomas and Alito in a sense have more power and influence on the Court's work now than ever before.  Though I am sure lots of folks are eager to imagine them replaced with younger jurists, I suspect they are in no rush to move on.   

Prior recent related posts:

• Is former Prez Trump going to release a new short list of possible Supreme Court nominees? 
• Am I the only one disappointed that former Prez Trump has not a new short list of possible Supreme Court nominees?

Initiative results in states show political pendulum swinging back on sentencing and drug policy reforms

I flagged in this postyesterday some of my pre-election coverage of some state initialtives on sentencing issues and drug policy reform.  And now, with results mostly tabulated, the votes in higher-profiles issues on the ballot on Election Day 2024 seem to be telling a fairly consistent story that voters have grown much less interested in progressive reforms than in past elections.

The higest-profile initiative in this space was California's Proposition 36, titled "Increase Sentences for Drug and Theft Crimes," and this New York Post piece highlights the outcome in its headline: "Californians overwhelmingly pass anti-crime Proposition 36 measure that Dem Gov. Gavin Newsom strongly opposed."  This New York Times' result tracker as of ths writing shows this initiative getting over 70% of the vote in the Golden State.  That number might come down as more ballots are counted, but it is quite notable that the initiative appears to be winning by double digits in every single county.

Colorado had a number of criminal justice initiatives that also appear to have been approved by voters including more funding for police training and limits on bail for some murder defendants.  And the sentencing related issue, Proposition 128, to limit parole eligibility for certain violent offenders as of now has over 62% of the vote.  This New York Times result tracker shows this initiative getting significant support in every county except Boulder.

The story on drug policy reform is a bit more nuanced.  Nebraska voters approved two medical marijuana reform initiatives by nearly a 70% vote, but on-going court challenges might preclude actual reforms.  Voters in both North Dakota and South Dakota rejected full marijuana legalization by roughtly 55% of the vote, though the vote was slightly more in favor of reform in North Dakota than for a similar initiative in 2022 and slightly less in favor in South Dakota compared to 2022. 

The biggest and most-watched marijuana reform initiative was Florida's Issue 3 seeking full legalization in the Sunshine State.  Voters in Florida favored this reform at nearly 56%, which is very close to the "yes" votes for full legalization in "blue" states like Colorado and Washington and Oregon and California and Massachusetts in years past.  But in Florida, unlike all those other states, a supermajority vote of 60% is needed for legalization.  I had thought now-Prez-Elect Donald Trump's endorsement of Issue 3 might get it past the post, but on this issue he did not move the needle enough for passage.

In addition, Massachusetts voters voted down by a large margin a ballot measure that would have legalized psychedelics for adults 21 and older.  Such reform has gotten voter approval in Colorado and Oregon in recent years, but the Bay State voters were disinclined to follow along.

An Election Day 2024 review and round-up on some sentencing fronts

I had the honor and privilege of casting my ballot a few days ago, and I always get a real thrill out of exercising the franchise.  Living in the greatest democracy in world history makes me so pleased and proud no matter how the voting turns out.  (I am also pleased that, at least for a few months, I'll no longer have to endure political commercial after political commercial or a steady stream of emails and texts asking for political donations.)  I hope voting proves as easy and as joyful for everyone else as it was for me.

Election 2024 has been about a lot of topics, many touching on criminal justice matters in various ways.  And, of course, the major candidates for president this year both have notable criminal justice histories.  Sentencing law and policy issues have arising in more than a few contexts, and the topical archive "Campaign 2024 and sentencing issues" includes notable and numerous posts on topics ranging from the death penalty to the First Step Act to puplic polling on crime issues and inmate surveys on political issues.

Because I am a big fan of direct democracy and the mertric it provides on how voters are thinking about specific issues, I am especially interest to see outcomes of a handful of ballot initiatives this year.  And here is a quick review of some recent posts spotlighting some of the criminal justice ballot measures I will be following:  

• Noting how California initiative to roll back Prop 47 is creating political divide 
• Rounding up some recent coverage and commentary on Prop 36 in California
• Noting some interesting data around Colorado's Proposition 128 to restrict parole eligibility
• Updated DEPC resource reviews "Drugs on the Ballot" 2024 (and in prior elections)
• Ever the criminal justice reform populist, former Prez Trump signals support for marijuana legalization in Florida and elsewhere

Of course, there are so many more issues and candidates that should be of interest for those following criminal justice reform and every other topic.  IN this area, I always recommend Bolts as a great resource for trying to keep up with a wide array of election (and crimianl justice) issues.  This helpful page "What’s on the Ballot" for 2024 is a great reminder of just how many decision the people get to make today.

Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

The eve of Election Day 2024 seems like a good time to flag an online event on the presidential clemency power being hosted on December 10 by the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.   Here is the event page for the event where you will see this overview and list of panelists:

Both Barack Obama and Donald Trump closed out their presidential terms with a significant number of clemency grants, though the processes adopted by these two presidents differed dramatically. President Biden has already taken some notable clemency actions, though what might be in store for his clemency pen in his final months remains uncertain.  Perhaps even more uncertain: what should be expected regarding the future of the federal clemency power in the next presidential administration?

On December 10th, 2024, join us to hear a panel of experts discuss their perspectives on the past, present, and future of the President's Clemency Power.

Panelists
Mark Osler, Robert & Marion Short Distinguished Professor of Law, University of St. Thomas School of Law
Rachel Barkow, Charles Seligson Professor of Law; Faculty Director, Zimroth Center on the Administration of Criminal Law; NYU School of Law
Eric Luna, Amelia D. Lewis Professor of Constitutional and Criminal Law, Foundation Professor; Faculty Director, Academy for Justice; Arizona State University Sandra Day O'Connor College of Law
Larry Kupers, Former Deputy Pardon Attorney (Obama Administration); Former Acting Pardon Attorney (Trump Administration); Former Federal Defender

You can register for the Zoom event at this page.

Lots of Rahimi GVRs and a curious GVR in long-simering Eighth Amendment capital eligibility case in new SCOTUS order list

The Supreme Court is back in action this week, and this morning it released this notable new order list.  The start and end of the list will be of greatest interest for criminal justice fans.  At the start, we get seven GVRs of criminal cases from four different circuits needing "further consideration in light of United States v. Rahimi, 602 U. S. ___ (2024)."   I am not sure of the specifics of all these cases, but I am sure the Rahimi Second Amendment churn and uncertainty is not concluding anytime soon.

What is concluding, though, is uncertainty about what the Justices are doing with Hamm v Smith, a case the Court had relisted more than 25 times, I believe. (This recent post noted some recent speculation about the case.)  At the end of today' order list we find a two-page per curiam order sending the case back to the Elevent Circuit.  Here is how it starts and ends: 

Joseph Clifton Smith was sentenced to death for the murder of Durk Van Dam. The U.S. District Court for the Southern District of Alabama vacated Smith’s death sentence after concluding that he is intellectually disabled. See Atkins v. Virginia, 536 U. S. 304 (2002). Smith has obtained five full-scale IQ scores, ranging from 72 to 78. Smith’s claim of intellectual disability depended in part on whether his IQ is 70 or below.  The District Court found that Smith’s IQ could be as low as 69 given the standard error of measurement for his lowest score of 72.  The District Court then vacated the death sentence, and the U.S. Court of Appeals for the Eleventh Circuit affirmed.....

The Eleventh Circuit’s opinion is unclear on [its approach to multiple IQ scores], and this Court’s ultimate assessment of any petition for certiorari by the State may depend on the basis for the Eleventh Circuit’s decision.  Therefore, we grant the petition for certiorari and Smith’s motion for leave to proceed in forma pauperis, vacate the judgment of the Eleventh Circuit, and remand the case for further consideration consistent with this opinion.

JUSTICE THOMAS and JUSTICE GORSUCH would grant the petition for a writ of certiorari and set the case for argument.

This GVR conclusion to this long-simmering case may only enhance speculation about what various Justices might have considered the right approach to the broader issues of the Eighth Amentment jurisprudence this case could raise. It will be quite intriguing to see what the Eleventh Circuit might do upon remand and what might come before SCOTUS thereafter.  

For those interested in a bit more background, here is a new CNN article on the Hamm v. Smith disposition: "Supreme Court orders more review of Alabama’s request to execute inmate courts said is intellectually disabled."

Based on "the will of Congress," Third Circuit panel adheres to prior ruling limiting ground for compassionate release

I noted in this recent post that a Sixth Circuit panel heard oral argument this past week to consider its precedent limiting grounds for compassionate release in light of last year's US Sentencing Commission guideline amendment allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i).  In that post, I explained that I thought this issue of statutory interpretation should be fairly straight forward for any and all true textualists.  Today, a panel ruling form the Third Circuit in US v. Rutherford, No. 23-1904 (3d Cir. Nov. 1, 2024) (available here), reinforces my view.  The panel in Rutherford rules against the defendant not based on any determinative text, but rather based on its belief as to "the will of Congress":

We agree with the government that subsection (b)(6) in the amended Policy Statement, as applied to the First Step Act’s modification of § 924(c), conflicts with the will of Congress and thus cannot be considered in determining a prisoner’s eligibility for compassionate release.  Congress explicitly made the First Step Act’s change to § 924(c) nonretroactive.  Pub. L. No. 115-391, § 403(b), 132 Stat. 5194, 5222.  And, in Andrews, we held that it would be inconsistent “with [the] pertinent provisions of [the First Step Act],” 28 U.S.C. § 994(a), to allow the amended version of § 924(c) to be considered in the compassionate release context because “Congress specifically decided that the changes to the § 924(c) mandatory minimums would not apply to people who had already been sentenced.” Andrews, 12 F.4th at 261.  

Besides the non-textual nature of divining the "will" of Congress to rule against a defendant, this holding conflates Congress's nonretoractivity decisions in the First Step Act with its decision, in the very same Act, to expand access to compassionate release and to keep in place the broad parameters of USSC authority to set terms for compassionate release.  There is nothing at all "inconsistent" with Congress saying not everyone should automatically retroactively benefit from a particular change in law and the USSC saying that judges can consider a change in law for a select few pursuing another legal remedy.  Put more clearly and directly, the USSC's policy statement regarding compassionate release does not formally or functionally make the First Step Act change to § 924(c) retroactive to anyone, and so it is in no way inconsistent with Congress's decision not to make that change retroactive to everyone. 

I could go on and on, but Rutherford ultimately stands as another telling example of the limits of textualism when a criminal defendant is the one stressing that the text Congress enacted is in his favor.  Even if text is clear (as I think it is here), courts are ready and able to say that the "will" of Congress is more important than the text.  (Notably, the Rutherford decision seem to think the "will" of Congress only makes it a problem for district courts to consider the § 924(c) change in law as part of a compassionate release motion; other changes in law would seemingly still be permissible considerations under the USSC's policy statement.) 

I assume a motion for an en banc review in Rutherford will be next up in the Third Circuit, and it will be interesting to see if any textualists elsewhere on that court might be troubled by the panel's reliance on congressional "will" over congressional text.  A Fifth Circuit panel has gone the other way, but I surmise there could still be full court consideration there.  And the Sixth Circuit, as well as a few other circuits, may also weigh in before SCOTUS may be inclined to take up this issue.  I suspect SCOTUS review is inevitable, with "when" perhaps more of an uncertainty than "if." 

Most recent related posts:

• Split Fifth Circuit panel holds that "changes in the law" can be a basis for sentence reduction under § 3582(c)(1)(A)(i) 
• Previewing latest cases before circuit court on USSC guideline allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i) 

Once again, a November starts, the new Guidelines are here, the new Guidelines are here!!

Though I have made this old reference many times before, November 1 still gets me thinking of this silly scene from "The Jerk" in which which Steve Martin's character is so excited about the new phonebook, which he says means "things are going to start happening" now.  I am not sure if anyone even prints phonebooks anymore; I am sure, in the federal sentencing world, it is still exciting when the "new book," the latest official revised version of the US Sentencing Guidelines, becomes official and effective on November 1. 

Excitingly, the US Sentencing Commission sent out an email yesterday highlighting some notable new resources related to the new guidelines. Here is part of the text and links from this email: 

What's New In The 2024 Manual?

Amendment 826 (Acquitted Conduct)

• Amendment-In-Brief Handout
• Sentencing Practice Talk Podcast

Amendment 827 (Loss Calculation)

• Amendment-In-Brief Handout
• Sentencing Practice Talk Podcast

Amendment 829 (Youthful Individuals)

• Amendment-In-Brief Handout
• Sentencing Practice Talk Podcast

... and more!

Learn about all of this year's amendments in the Reader-Friendly or review the quick summary of changes inside the front cover of the printed manual. 

The Commission has parked all six segments of the USSC podcast described as a "Guideline Amendments Miniseries" are available at this link.  Though there are a number of interesting elements to these amendments, they are all relatively modest in their particulars, especially as compared to the many more consequential changes in the 2023 Guideline amendment cycle. 

Interestingly, these may be the first set of amendments in which we do not know, at the time of implementation, if any could end up retroactive.  After gathering comment and conducting a public hearing in July on this topic, the Commission in August announced at a public meeting that it would "not be voting on retroactivity" while it worked on "clear principles that will guide its approach to retroactivity."  I do not know if the Commission is making progress on this front, but I do not know that amendments are not retroactive unless and until the Commission votes to formally make them retroactive. 

"How Does Judges' Personal Exposure to Financial Fraud Affect White-Collar Sentencing?"

The title of this post is the title of this new paper now available via SSRN authored by Trung Nguyen, Aneesh Raghunandan and Alexandra Scherf. Here is its abstract:

We study whether federal judges' personal exposure to financial fraud affects their professional behavior, in the form of sentencing outcomes in white-collar cases.  Following the methodology outlined in our registered report, we construct a novel measure of financial fraud exposure based on judges' direct shareholdings in firms that commit financial fraud. Using this measure, we exploit the random assignment of cases to judges to examine whether judges exposed to fraud in one firm (i) are less likely to rule in favor of defendants in white-collar cases involving other firms and (ii) less likely to grant favorable pre-trial motions to defendants.  We find minimal evidence in support of either (i) or (ii), concluding that for all but the most serious frauds, judges are unlikely to let their personal victimhood experience affect their professional sentencing behavior with respect to related cases.  Our study broadens our understanding of the spillover effects of financial fraud enforcement and contributes to the literature on how judges' personal experiences can shape judicial decision-making.

Previewing latest cases before circuit court on USSC guideline allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i)

Bloomberg Law has this new article, headlined "Sentencing Commission Policy Power Faces Unusual Test on Appeal," previewing a notable oral argument in the Sixth Circuit scheduled this week to consider the US Ssentencing Guideline provision that permits some "changes in the law" to serve as basis for possible sentence reduction under § 3582(c)(1)(A)(i).  Here are excerpts:

A US Sentencing Commission policy statement that allows courts to consider nonretroactive changes to the law when weighing a criminal defendant’s bid for compassionate release will be tested during oral arguments in the US Court of Appeals for the Sixth Circuit Thursday.

Federal prosecutors around the country have challenged the policy statement, which allows courts to consider a change in the law — other than nonretroactive changes to the guidelines manual — as an extraordinary and compelling reason allowing a sentence reduction.

Under the policy, courts must consider the defendant’s individualized circumstances and can reduce a sentence only when the defendant received an “unusually long sentence,” has served at least 10 years in prison, and there’s a “gross disparity” between the sentence the defendant is serving and the sentence likely to be imposed now.

The Justice Department says the commission is effectively making nonretroactive laws retroactive....

Before the commission stepped in, five circuits—the Third, Sixth, Seventh, Eighth, and D.C. — said courts couldn’t consider a nonretroactive change in the law for purposes of compassionate release. Four circuits — the First, Fourth, Ninth, and Tenth—explicitly allowed judges to consider such changes, at least when examining a defendant’s overall circumstances.

The commission amended its policy statement describing “extraordinary and compelling” reasons for a sentence reduction in response to the First Step Act of 2018, an overdue move resulting from the commission lacking a quorum for several years.

The policy aimed to resolve the circuit split by allowing consideration of nonretroactive changes within a larger analysis. But DOJ has since taken the position that—despite an express delegation of authority — the policy exceeds the commission’s statutory power.  In DOJ’s view, a change in law can never be “extraordinary” or “compelling.”

Regular readers may know that I think this issue should be pretty easy to resolve for any and every jurist committed to textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the Justice Department's contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  If a court rules otherwise, it is just inventing an extra-textual categorical limitation on the express statutory authority Congress gave to district courts to reduce prison terms (persumably based on the court's policy view that there should be additional limits beyond what Congress set forth in the statutory text).

That said, Congress did provide expressly in statutory text that there is be one factor that could not alone serve as the basis for sentence reduction under § 3582(c)(1)(a): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  But that clear textual exclusion reveals that Congress plainly knows how, in express statutory text, to exclude a particular reason from being alone the basis for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — in turn suggest that courts should not be inventing additional extra-textual categorical exclusions that Congress did not actually place in the statutory text.  (Moreover, the use of the word "alone" in § 994(t) further suggests that Congress wants even "debatable" factors that cannot alone be the basis for a reduction to be useable in combination with other factors.)

Of course, Congress also provided in 28 USC § 994(t) that the US Sentencing Commission "shall describe what should be considered extraordinary and compelling reasons for sentence reduction," which does suggest that the Commission has statutory authority to limit what can qualify as "extraordinary and compelling reasons" for a sentence reduction.  Indeed, the Commission did just that in its 2023 amended policy statment, §1B1.13(b)(6), which puts all sorts of restrictions on just when "a change in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason."  But, again, the text in applicable statutes makes plain that Congress tasked only the Commission with describing (and potentially limiting) sound grounds for sentence reductions under § 3582(c)(1)(a).  Creating new categorical limits on sentencing reduction grounds is not a job for circuit courts, unless those courts believe it is supposed to be their role to ignore clear statutory text and displace the policy-making roles of both Congress and the US Sentencing Commission.

Am I the only one disappointed that former Prez Trump has not a new short list of possible Supreme Court nominees?

In this post a month ago, I asked "Is former Prez Trump going to release a new short list of possible Supreme Court nominees?".  In that post, I noted that Trump's clever and consequential decision in May 2016 to release a "short list" of people he would consider as potential Supreme Court appointments made for great blog fodder for court watchers.  I also noted that in mid-August 2024, Trump told a CBS reporter that he would release a new SCOTUS shortlist of possible nominees in September 2024.  But here we now are days before the election, and no short list.

I have seen a few recent press pieces about the election and the Supreme Court's future, but none of these pieces makes mention of the fact that 2024 is the first Trump presidential campaign without a short list:

From CNN, "There’s no such thing as a guaranteed Supreme Court vacancy"

From New York Magazine, "How the 2024 Election Will Reshape the Supreme Court"

From the New York Times, "This Election Is Also a Choice Between Two Visions of the Federal Courts"

I am inclined to guess that Trump's team has figured out that it would not be especially useful to generate media buzz about Trump's possible plans (and even potential eagerness) to replace the oldest Supreme Court Justices, who are Justices Clarence Thomas and Samuel Alito.  Still, for those of use who like to speculate about SCOTUS matters, the lack of a list is a small bummer.  And, of course, if Trump returns to the White House, I suspect that there will be any number of folks who will be eager to encourage Justices Thomas and Alito to make room for more Trump SCOTUS appointees.

Notable polling data on crime views on the eve of Election 2024

I just saw this intriguing new YouGov report with all sort of polling data on a range of crime issues. The piece is titled "Crime: What 2024 voters want and which candidate they trust" and is worth a full read (though none of the result strike me as too surpring). Here is how the piece gets started: 

During the 2024 presidential election campaign, YouGov asked registered voters their views on eight topics, including crime — the crime-related issues that matter most to them, the policies they support, and the candidates they trust. Among our findings:

• The issue of crime is ranked highly among Trump's supporters — 45% say it's one of their three biggest issues — but is far less likely to be prioritized by voters supporting Harris, only 19% of whom say it's a top-three issue.
• The crime-related issue that voters are most likely to emphasize is gun policy. Gun policy is by far the top issue for supporters of Harris, followed by racial disparities in criminal justice. Trump's voters place the most priority on police funding and criminal sentencing, though a large share also cares about guns.
• Trump is somewhat preferred to Harris on the handling of crime overall, but trust on specific crime-related issues varies. Harris is more trusted than Trump for handling racial disparities in criminal justice, white collar crime, and marijuana laws. Trump leads Harris in trust on handling police funding and criminal sentencing. Voters are closely divided on who they trust more to handle gun policy, policing practices, and privacy rights.
• Harris' crime policies are, on average, more popular than Trump's. Majorities of voters favor Harris-backed proposals for universal background checks for gun purchases and reentry programs for former prisoners. Trump's proposal to impose mandatory minimum sentences for violent crimes also is supported by a large majority of voters, including by most of his supporters and Harris'. Two of his plans each get far less support, including from less than half of his own supporters: giving qualified immunity to police officers and allowing the death penalty for drug dealers.
• Voters are largely able to correctly identify Harris' policies regarding guns. Most voters also know that Trump wants to pardon participants in the January 6th attack and to send troops into cities to enforce order. Fewer than half of voters — including just 37% of his own supporters — know about Trump's support for allowing the death penalty to be imposed on drug dealers.

An incomplete review of former Prez Trump's eccentric and eclectic use of his clemency power

Over at Slate, there are two new pieces about Donald Trump's clemency record when he was in the Oval Office.  Because "weird" has apparently taken on talismanic meaning this election cycle, the headline of one piece uses that adjective to describe Trump's pardons.  As the headline of this post highlights, I am thinking "eccentric and eclectic" are more fitting.  Readers are urged to make suggestions on the best adjectives to describe Trump's record after checking out these Slate pieces:

"Trump’s Pardons Were Way Weirder Than You Remember: A rattlesnake smuggler, a congressman who spent campaign money on his rabbit, a hip-hop superstar—and more!"

"I Revisited Everyone Donald Trump Pardoned. One Alarming Consequence Was in Plain Sight.: His disgraced political operatives have been busy."

Here is a segment from the start of this second piece:

When Donald Trump, seven months into his presidency, pardoned the corrupt Arizona Sheriff Joe Arpaio before he could even be sentenced — calling the 85-year-old a “great American patriot” — it caused a gigantic scandal....

That first pardon broke with accepted norms, but by the end of his term, when Trump had granted pardons or commutations to 237 people, few were surprised by the kinds of recipients on the list. There were war criminals and police officers accused of brutality. There were scores of people who had been convicted of political corruption or fraud. The then president wasn’t exceptional in pardoning large numbers of people — Obama, for example, granted executive clemency to 1,927, many as part of mass commutations for nonviolent drug offenses — but Trump’s pardons were remarkably self-serving.

The full list includes an eclectic mix of criminals: drug dealers, wildlife smugglers, rappers who illegally possessed firearms, even sellers of bad beef.  But there’s a category of recipient that stands out: his own people.  Donald Trump had a remarkable number of people in his orbit who were convicted of crimes, including Steve Bannon, Michael Flynn, Roger Stone, and Paul Manafort.

Unsurprisingly, this kind of review glosses over clemency grants to a number of folks who were excessively sentenced and who failed to get relief from prior presidents (eg, Alice Marie Johnson and John Knock and a number of others).  In a funny way, I think one important lesson of Prez Trump's clemency record (and, to some extent, Prez Obama's record as well) is that granting a few (or many) controversial pardons to high-profile folks will lead to a whole lot of other clemency grants being largely ignored (for good or bad).

"Assisted Outpatient Treatment: A State-by-State Comparative Review"

The title of this post is the title of this new paper now available via SSRN authored by E. Lea Johnston and Autumn Klein. Here is its abstract:

Assisted outpatient treatment, otherwise known as preventive outpatient commitment, is rapidly expanding across the United States, aiming to address mental health needs and reduce homelessness, hospital costs, and community violence.  Since 2019, fifteen preventive outpatient commitment statutes have been passed or expanded.  These statutes, which authorize courts to mandate community treatment for nondangerous individuals with mental illnesses, have evaded close scrutiny, rest on misconceptions, and raise significant constitutional concerns.  An analysis of legislative debates, court opinions, and scholarship reveals a fundamental misunderstanding about the prevalence of these laws, which contributes to their speedy passage.  Additionally, no analysis exists of these statutes' varying compositions.  Consequently, commentators underestimate their potential scope and enforceability.  Furthermore, a lack of clarity regarding the elements responsive to states' parens patriae and police power interests hinders accurate legal and policy analyses.

This Article explicates current preventive outpatient commitment statutes to enhance understanding of states' authority to compel community treatment.  It seeks to dispel common misconceptions about these statutes, including their prevalence, minimal invasiveness, applicability to only those lacking insight into their condition, and unenforceability through courts' contempt power.  It also offers a detailed analysis of the aspects of these statutes most crucial to their justifiability, i.e., criteria related to dangerousness and treatment decision-making incapacity.  Such examination is necessary to understand the evolving relationship between states and individuals with mental disorders, discern the goals of compelled treatment statutes, and assess their legality.  It is also essential for evaluating the success of these statutes and determining when a state's objectives have been fulfilled such that courts may not renew commitment orders.

This analysis aims to enrich future debates about the authority underpinning these statutes, their ideal composition, and their impact.  It also lays the foundation for future projects to examine the constitutionality of these statutes, their efficacy, and their broader justifications.

Continuing coverage and comment on Menendez brothers' possible resentencing

Unsurprisingly, the announcement last week by the Los Angeles DA that he will seek resentencing for the Menendez brothers has generated more media coverage and comment about the case and the brothers.  Here is a partial round up of pieces catching my eye:

From the AP, "The Menendez brothers built a green space in prison. It’s modeled on this Norwegian idea."

From The Daily Beast, "Menendez Bros’ Family in Bitter Feud Over DA’s Freedom Plan"

From the Los Angeles Times, "Will the Menendez brothers be set free? How the parole board, the governor and a new D.A. could change things"

From NBC News, "Did Hollywood help the Menendez brothers’ case?"

From USA Today, "Are the Menendez brothers getting released? What to know about the resentencing decision"

The USA Today piece includes some of these details regarding timelines and procedures:

At a Thursday news conference, Nancy Theberge, deputy in charge of Gascón’s resentencing unit, said she would like to see the petition for resentencing go before a judge within the next 30 to 45 days. She added that the brothers' could attend the hearing either in person or via Zoom.... Theberge said Thursday the resentencing unit will coordinate with the defense to set up a court date so the petition requesting resentencing can be heard.

The judge overseeing the hearing will then rule on the petition and decide whether the brothers will be eligible for parole. If the judge agrees the brothers should be resentenced, they will go before a parole board, which will primarily evaluate "whether they are rehabilitated and safe to be released," Gascón said.

The district attorney said while he and some members of his office believed the brothers deserve to be resentenced, there may be other members of his office who will present arguments on why they should remain in prison for life.

"It's very possible that there will be members of this office that will be present in court opposing their resentencing – and they have a right to do so," he said, adding, "We encourage those that disagree with us to speak in the court."

Prior recent related posts:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so
• LA District Attorney announces that he will seek resentencing for the Menendez brothers

Notable new accounting of post-Bruen Second Amendment claims brought by 1,450 criminal defendants

This new Trace article, headlined "A Supreme Court Decision Claimed to Take Partisanship Out of Gun Cases. It Didn’t," provides a new accounting of Second Amendment cases since the Supreme Court transformed the applicable jurisprudence in its landmark 2022 Bruen decision.  The subtitle of the article highlights it general themes: "A Trace analysis of more than 1,600 rulings found that the Bruen decision has given judges remarkable leeway. The results have been starkly partisan."  

This article details that the vast majority of the post-Bruen rulings are in criminal cases, though I am not sure these reported data on these criminal cases make compelling the "starkly partisan" claim:

The Trace’s analysis identified 150 lawsuits seeking to overturn state assault weapons bans, age limits on buying firearms, licensing rules, and other gun restrictions. In these cases — many of which were brought by the National Rifle Association and other gun rights groups — Republican-appointed judges sided with plaintiffs 48 percent of the time. 

That is four times the rate of Democratic appointees, who did so in 13 percent of the cases they heard.

The remaining 1,450 rulings reviewed by The Trace involved criminal defendants, many of whom were using Bruen in an attempt to have their charges or convictions thrown out. In these cases, some Democratic judges have been sympathetic to arguments that gun regulations not only have little historical support but also disproportionately affect marginalized groups.

Democratic appointees have sided with gun rights claims in 30 out of the 525 criminal cases they’ve heard, or 6 percent. Two judges — Robert Gettleman and Staci Yandle, both in Illinois — alone issued 17 of those 30 rulings. By comparison, Republican-appointed judges ruled in favor of defendants in 22 out of 748 criminal cases, or 3 percent. (The remaining criminal cases were heard by nonpartisan magistrate judges.)

It seems there are two "outlier" Democratic appointees who may be rejecting many or most federal gun charges, whereas all other Democratic appointees are siding with gun defendants at nearly the exact same (very low) rate as Republican-appointed judges.  And, perhaps most notable, these Trace data show that, roughly speaking, there has been ten times as much post-Bruen Second Amendment litigation in criminal cases as in civil cases.

"No Need To Wait: Congress Has the Power Under Section Five of the Fourteenth Amendment to Abolish the Death Penalty in the States"

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

Congress has the authority to abolish the death penalty in the states, and good reason to exercise it.

This Article takes as a given the Supreme Court’s view that the death penalty is not itself unconstitutional.

But under existing law Congress would have no difficulty in compiling a record that would support the use of its enforcement power under Section Five of the Fourteenth Amendment to enact a statute forbidding the imposition of capital punishment by those states that retain the practice.  The statute would be congruent and proportional legislation to remedy and prevent an amply documented history of violations of rights that the Court has long recognized as fundamental concerns.

Those violations include the states’: (1) denial of effective assistance of counsel to capital defendants, (2) racial discrimination in the selection of capital jurors and in charging and sentencing decisions, (3) failure to structure death penalty systems so as to reliably result in the execution of the most culpable of the potentially eligible defendants, (4) execution of the mentally impaired, (5) execution of prisoners contrary to the Constitution due to the fortuities of litigation timing, (6) execution of the innocent, and (7) use of torturous methods of execution.

Advocacy efforts supporting a federal statute abolishing capital punishment may achieve surprising success. Congressional representatives from abolitionist states may vote for one, and so may some legislators from retentionist states, buttressed by the growing number of political conservatives who support abolition. In any event, the campaign itself may strengthen the abolitionist cause.

Brennan Center releases "Myths and Realities: Prosecutors and Criminal Justice Reform"

The Brennan Center for Justice today released this new "expert brief" seeking to make the case that there is "no clear relationship between pro-reform prosecutors and increased crime." Here is how the data-heavy report gets started (with links from the original):

Prosecutors play a vital role in the criminal justice system, determining not just which cases to pursue but also what charges to file and penalties to seek.  Over the past decade, some prosecutors have developed approaches that aim to reduce racial and economic disparities and unjust outcomes in the legal system — such as excessive sentences or the criminalization of poverty through cash bail — while preserving public safety.

Far from a unified group, these prosecutors bring many different approaches to their work.  They span the political spectrum and are found in urban and rural jurisdictions alike. They are often grouped under the label “progressive prosecutors” or “reform-minded prosecutors.”  For the purposes of this analysis, we use the term “pro-reform prosecutors” to indicate chief district attorneys, county attorneys, commonwealth attorneys, and state attorneys who campaigned on or promised to reimagine the role of their office to broadly reduce unjust disparities in the justice system and decrease unnecessary incarceration.

Some critics have alleged that pro-reform strategies have driven increases in crime. We evaluate those claims, drawing on recent crime data and an understanding of how the criminal justice system works in practice, and find that these claims lack support.  In fact, there is no evidence that pro-reform prosecutors are responsible for crime rising or falling.

No Clear Relationship Between Crime Trends and Pro-Reform Prosecutors

First, we use data from the last decade, which includes the period of time during the Covid-19 pandemic, to evaluate how crime trends have changed in cities with and without pro-reform prosecutors. Previous research on this subject has, with some exceptions, found little to no relationship between the inauguration of a pro-reform prosecutor and a measurable increase in crime, even after using sophisticated statistical strategies.

Our analysis, described below, also finds no clear relationship between the pro-reform prosecutorial approach and the incidence of crime. Using data collected by the Council on Criminal Justice, we compared aggravated assault, larceny, and homicide trends in cities with pro-reform prosecutors to trends in cities without pro-reform prosecutors.  Assault and larceny were selected because of their frequency, allowing clearer analysis, and because they are more likely to be affected by prosecutorial decision-making. Murder was chosen because of its seriousness and because those crimes spiked sharply during the first two years of the Covid-19 pandemic.

Researchers have previously relied on several criteria to define pro-reform prosecutors, including a focus on the use of diversion policies, increased resources devoted to police accountability units, use of data to mitigate racial bias, reduced support for excessively long punishments, reviews for claims of wrongful convictions, and limitations on the use of money bail. In this article, we build on these methods and select only those prosecutors who have been consistently categorized as pro-reform by other researchers in the field.

As illustrated below, trends are not meaningfully different between cities with pro-reform prosecutors and cities without pro-reform prosecutors.  For each group, we plot the average percentage change in crime rates from a 2018 baseline.  The effects of seasonal variation and the Covid-19 pandemic are broadly similar, and the net changes in aggravated assault, larceny, and homicide rates between 2018 and 2024 are remarkably alike. Neither group sees drastically better or worse outcomes.

LA District Attorney announces that he will seek resentencing for the Menendez brothers

In this post from a few weeks ago, I noted the notable activity focused on possible resentencing of the Menendez brothers, who were convicted and sentenced to LWOP in California for the brutal 1989 killing of their parents. As reported in this Courthouse News Service piece, "LA District Attorney George Gascon announced Thursday that his office will be recommending that Erik and Lyle Menendez, who killed their parents in 1989, be resentenced." Here is more:

Erik and Lyle Menendez have been locked up for 35 years and are serving life sentences without the possibility of parole. They have claimed, both during their trials and subsequent to them, that they were sexually abused by their father Jose, and that the killings were done out of fear of continued abuse and a response to trauma. Their first trial, in 1993, ended in a mistrial, with the jury remaining deadlocked after a month of deliberations. After a second trial ...., the brothers were convicted. During both trials, prosecutors argued that Jose never abused his children, and that the brothers were motivated by money.

Recently, two new pieces of evidence have emerged that the brothers and their supporters say add weight to the claims of abuse. In 2023, a former member of the boy band Menudo, Roy Rossello, revealed that Jose Menendez, a record executive, drugged and raped him when Rossello was 14 years old. In addition to that, a letter purportedly written by Erik Menendez to his cousin in 1988, less than a year before the killings, was unearthed. In the letter, Menendez refers to the sexual abuse, writing, "Every night I stay up thinking he might come in."

Last year, the brothers filed a writ of habeas corpus, asking for the convictions to be thrown out based on new evidence, writing in a brief, "The new evidence not only shows that Jose Menendez was very much a violent and brutal man who would sexually abuse children, but it strongly suggests that — in fact — he was still abusing Erik Menendez as late as December 1988."

Last week, more than 20 of Erik and Lyle's family members met with Gascon, asking for the brothers to be resentenced under Marsy's Law, which gives crime victims a right to be heard prior to sentencing, as well as to have a say in resentencing hearings. Most of the extended Menendez family say 35 years in prison is more than enough for the brothers, now in their mid 50s, given the abuse they suffered at the hands of their father.

But not all family members agree. Milton Anderson, the 90-year-old surviving brother of Kitty, the brothers' mom, has spoken out against letting his sister's killers go free. "The 'new evidence' Gascón relies on cannot legally justify overturning the murder convictions of Erik and Lyle Menendez, who meticulously planned and executed the cold-blooded murders of both their parents," Anderson's attorney said in a written statement on Thursday. "They shot their mother, Kitty, reloading to ensure her death. The evidence remains overwhelmingly clear: the jury’s verdict was just, and the punishment fits the heinous crime."

I believe what is now California Penal Code § 1172.1 provides the legal basis and sets forth the legal standards for this kind of resentencing.  I am not at all familiar with California resentencing practices, but I would guess that most judges follow the recommendations of prosecutors in these kinds of cases.  But high-profile cases do not always follow the patterns of other cases, and it will be interesting to observe both the process and substance of this notable re-sentencing decision.

Prior recent releated post:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so