As reported in this press release, "U.S. Senator Cory Booker (D-N.J.), a member of the Senate Judiciary Committee and Chair of the Subcommittee on Criminal Justice and Counterterrorism, [on Friday] released a policy brief detailing the success of the CARES Act home confinement program three years after its inception." Here is more from the press release:
In March 2020, Congress passed the CARES Act, which included provisions that permitted the Department of Justice to expand home confinement during the “covered emergency period” to mitigate COVID-19 risks in federal prisons. The Bureau of Prisons transferred 13,204 individuals to serve their sentences on home confinement. 3,627 still remained in the program as of May 27, 2023. In accordance with the CARES Act, the program officially ended on June 11, 2013, 30 days after the conclusion of the COVID-19 public health emergency.
The policy brief finds that the CARES Act home confinement program “has alleviated a strain on federal prison staff, saved taxpayers millions, reunified families, and successfully integrated thousands of formerly incarcerated individuals back into society – all without compromising public safety.” In Fiscal Year 2020, the cost to incarcerate a person in a Federal facility was $120.59 per day. In contrast, according to the brief, “an inmate in home confinement costs an average of $55.25 per day — less than half the cost.”
The CARES Act home confinement program has also “enabled the reunion of thousands of families, empowered formerly incarcerated individuals to actively pursue employment and education, and facilitated their meaningful contributions to our economy and community.”
Moreover, of the 13,204 individuals assigned to the home confinement program under the CARES Act, only 22 – less than 1% – have been charged with a new criminal offense. “The evidence is clear: the CARES Act home confinement program has been a resounding success in safely reintegrating individuals into the community without compromising public safety,” concludes the brief.
The full policy brief, titled "CARES Act Home Confinement: Three Years Later," can be viewed in full at this link.
I have not had a chance to read all the commentary that Hunter Biden's plea deal has generated, but I have made tome to gather here some notable pieces I have seen that capture all sorts of stories just through their headlines:
From Bloomberg, "Hunter Biden Plea Deal Pumps Up Republican Paranoia"
From Politico, "Garland denies allegations of politics impacting Hunter Biden plea deal"
From Ipsos, "Reuters/Ipsos Poll finds half of Americans think Hunter Biden is receiving favorable treatment"
From The Nation, "A Failson Meets a Failed Justice System"
From the Wall Street Journal, "It’s the Criminality, Stupid: Why Voters See Crooks in All Corners of Politics"
From the Washington Post, "Hunter Biden might have Clarence Thomas to thank for his gun plea deal"
In addition to the above pieces, I found particularly notable (and amusing) this troika of headlined:
From Newsweek, "The Hunter Biden Sweetheart Deal Endangers Us All. Every Criminal Is Going to Ask for It."
From Reason, "Hunter Biden's Prison-Free Plea Should Be Available to Everybody"
From the Washington Times, "Va. mom of 6-year-old who shot teacher will cite Hunter Biden’s plea deal for leniency, lawyer says"
Prior related posts:
The title of this post is the title of this new article authored by Tina M. Zottoli, Rebecca K. Helm, Vanessa A. Edkins and Michael T. Bixter just published in the June 2023 issue of the journal Law and Human Behavior. Here is its abstract:
Objectives: To date, most research on plea bargaining has used some form of the shadow of the trial (SOT) model to frame defendant decisions. In this research, we proposed and tested a new conceptual model of plea decision-making, based on fuzzy-trace theory (FTT), for the context in which a nondetained, guilty defendant chooses between a guilty plea or trial, where both the plea and potential trial sentence entail incarceration.
Hypotheses: We predicted that plea decisions would be affected by (a) meaningful, categorical changes in conviction probability (e.g., low to moderate, moderate to high), as opposed to more granular changes within categories and (b) the presence and magnitude of categorical distinctions between plea offer and potential trial sentence rather than fine-grained differences between individual offers.
Method: We conducted three vignette-based experiments (Study 1: N = 1,701, Study 2: N = 1,098, Study 3: N = 1,232), using Mechanical Turk participants. In Studies 1 and 2, we manipulated potential trial sentence and conviction probability, asking participants to indicate either the maximum plea sentence they would accept (Study 1) or whether they would plead guilty to a specific offer (Study 2). In Study 3, we manipulated plea discount and potential trial sentence and measured plea acceptance.
Results: Maximum acceptable plea sentences were similar within and different between “groupings” of meaningfully similar conviction probabilities (Study 1). Plea rates were similar within and different between groupings that comprised plea offers of similarly meaningful distance from the potential trial sentence (Study 3). The results also provide insight into the plea rates that might be expected under different combinations of the independent variables (Studies 2 and 3).
Conclusions: These results support a new conceptual model of plea decision-making that may be better suited to explaining case-level differences in plea outcomes than the SOT model and suggest that future research extending this model to a wider range of contexts would be fruitful.
The Buckeye State was the crime scene for a notable case of political corruption involving our House Speaker Larry Householder. Back in March, Householder and his co-defendant were convicted after trial on one count of conspiracy to participate in a racketeering enterprise involving bribery and money laundering. Next week brings sentencing on a single charge with a 20-year statutory maximum sentence, and these local article highlight that the prosecution and defense have very different visions of the proper sentence:
"Feds say Householder should get 16-20 years in prison: Liken him to mob boss in court filing"
"Householder asks for 12-18 month sentence as feds seek 16-20 years"
Especially with the prosecution seeking a sentence up to the statutory maximum prison term of 20 years and the defense seeking a sentence as low as just one year, one might hope that the US Sentencing Guidelines would help guide the federal sentencing judge toward an appropriate sentence. But, highlighting what I will call the nuttiness of the guidelines, the Government's sentencing memo contends that "Householder’s guideline range recommends life imprisonment." That would be, of course, an illegal sentence because the stat max is just 20 years.
Moreover, as discussed in the defendant's sentencing memo, "Probation calculated the total offense level under the advisory Guidelines [to be] Offense Level 52" even though the highest possible offense level under the guidelines is 43. In other words, for a crime committed by a 64-year old first offender, the guidelines somehow score way above the statutory maximum sentence and way above the guidelines' own defined offense seriousness ceiling.
There are various factors that contribute to the guidelines being especially nutty in this case, and the fact that the guidelines are advisory serves to soften the import and impact of their nuttiness. I have linked the sentencing memos not only because they make for interesting reads, but also because they highlight how a discourse and debate over the application of the 3553(a) statutory sentencing factors makes far more sense than a discourse and debate over the application of the guidelines that get used in a political corruption case like this one.
The Supreme Court this morning issued one of its very few constitutional criminal procedures with a decision in Samia v. US, No. 22–196 (S. Ct. June 23, 2023) (available here). Justice Thomas wrote the opinion for the Court, starting this way:
Prosecutors have long tried criminal defendants jointly in cases where the defendants are alleged to have engaged in a common criminal scheme. However, when prosecutors seek to introduce a nontestifying defendant’s confession implicating his codefendants, a constitutional concern may arise. The Confrontation Clause of the Sixth Amendment states that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” And, in Bruton v. United States, 391 U.S. 123 (1968), this Court “held that a defendant is deprived of his rights under the Confrontation Clause when his nontestifying codefendant’s confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant.” Richardson v. Marsh, 481 U.S. 200, 201–202 (1987).
Here, we must determine whether the Confrontation Clause bars the admission of a nontestifying codefendant’s confession where (1) the confession has been modified to avoid directly identifying the nonconfessing codefendant and (2) the court offers a limiting instruction that jurors may consider the confession only with respect to the confessing codefendant. Considering longstanding historical practice, the general presumption that jurors follow their instructions, and the relevant precedents of this Court, we conclude that it does not.
Justice Barrett wrote a concurrence, and Justice Kagan (joined by Justices Sotomayor and Jackson) authored a dissent, and Justice Jackson also wrote a dissent. Justice Kagan's dissent concludes this way:
And so one might wonder after reading today’s decision whether Bruton is the next precedent on this Court’s chopping block. The one reason it may not be is that there is now no need for formal overruling: Under this decision, prosecutors can always circumvent Bruton’s protections. Consider once more John’s confession implicating Mary in a robbery — a confession, I’ll now add, bearing a striking resemblance to the one in Bruton. See 391 U. S., at 124 (“A postal inspector testified that Evans orally confessed to him that Evans and [Bruton] committed the armed robbery”). The Bruton rule will still bar the prosecution from using the original version of John’s confession, expressly naming Mary. So too the rule will prevent the prosecution from swapping out Mary’s name for a blank space or the word “deleted.” But no worries—the government now has a functionally equivalent placeholder at its (Court-sanctioned) disposal. It can simply replace Mary’s name with “a woman,” and the Bruton issue will go away. But contrary to today’s decision, the serious Sixth Amendment problem remains. Now, defendants in joint trials will not have the chance to confront some of the most damaging witnesses against them. And a constitutional right once guaranteeing that opportunity will no longer. It will become, in joint trials, a shell of its former self. I respectfully dissent.
The Supreme Court this morning handed down another criminal law opinion today with US v. Hanson, No. 22–179 (S. Ct. June 23, 2023) (available here). The opinion for the Court was authored by Justice Barrett and begins this way:
A federal law prohibits “encourag[ing] or induc[ing]” illegal immigration. 8 U.S.C. § 1324(a)(1)(A)(iv). After concluding that this statute criminalizes immigration advocacy and other protected speech, the Ninth Circuit held it unconstitutionally overbroad under the First Amendment. That was error. Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts. It does not “prohibi[t] a substantial amount of protected speech” — let alone enough to justify throwing out the law’s “plainly legitimate sweep.” United States v. Williams, 553 U.S. 285, 292 (2008). We reverse.
Justice Thomas authored a concurrence in order "to emphasize how far afield the facial overbreadth doctrine has carried the Judiciary from its constitutional role."
Justice Jackson, joined by Justice Sotomayor, authored a dissent that gets started this way:
At bottom, this case is about how to interpret a statute that prohibits “encourag[ing] or induc[ing]” a noncitizen “to come to, enter, or reside in the United States” unlawfully. 8 U.S.C. § 1324(a)(1)(A)(iv). The Court reads that broad language as a narrow prohibition on the intentional solicitation or facilitation of a specific act of unlawful immigration — and it thereby avoids having to invalidate this statute under our well-established First Amendment overbreadth doctrine. But the majority departs from ordinary principles of statutory interpretation to reach that result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century.
It is neither our job nor our prerogative to retrofit federal statutes in a manner patently inconsistent with Congress’s choices. Moreover, by acquiescing to the Government’s newly minted pitch to narrow this statute in order to save it, the majority undermines the goal of the overbreadth doctrine, which aims to keep overly broad statutes off the books in order to avoid chilling constitutionally protected speech. See Dombrowski v. Pfister, 380 U.S. 479, 486–487 (1965). Because the majority’s interpretation of § 1324(a)(1)(A)(iv) diverges from the text and history of the provision, and simultaneously subverts the speech-protective goals of the constitutional doctrine plainly implicated here, I respectfully dissent.
Because I had the honor of spending my afternoon on Capitol Hill, I have not yet had a chance to read closely the Supreme Court's important new ruling on federal collateral review in Jones v. Hendrix (basics here). But a number of folks have apparently had time not only to review Jones, but also write up some commentary (including some in comments to this blog). Here is a round-up of some of the early commentary I have already seen:
From Chris Williams at Above the Law, "Sullcrom Is Super Proud Of Themselves For Making It Easier For The State To Confine The Innocent: I hope Jones takes some solace in knowing that he may actually be one of the innocent ones."
From Kent Scheidegger at Crime & Consequence, "Major Victory for Finality of Judgments"
From Leah Litman at Slate, "Clarence Thomas’ Latest Criminal Justice Ruling Is an Outright Tragedy"
From Ilya Somin at The Volokh Conspiracy, "A Troubling Supreme Court Habeas Decision: The Supreme Court was wrong to deny relief to a man imprisoned for activity that Court's own rulings indicate was not illegal - one who never had an opportunity to challenge his incarceration on that basis."
From Ian Millhiser at Vox, "The Supreme Court’s latest opinion means innocent people must remain in prison: Clarence Thomas’s majority opinion ensures that innocent people will spend years behind bars."
UPDATE: I have seen a few more pieces on Jones (and I am hoping to get some time to write up my thoughts this weekend):
From Chris Geidner at Law Dork, "SCOTUS rules that some legally innocent people can't even challenge their imprisonment"
From Thomas Root at Lisa Legalinfo, "Judge Friendly Had It Right: Innocence Really Is Irrelevant."
From Jordan Rubin at MSNBC, "Ketanji Brown Jackson calls out majority for unjustly ignoring innocence claims: All three Democratic appointees dissented from the GOP ruling, but Jackson wrote her own 39-page dissent."
I just saw that earlier this week the Seventh Circuit had an interesting new ruling adding to what I am now going to call the Bruen brouhahas surrounding federal criminal gun prohibitions. Here is how the majority opinion in Atkinson v. Garland, No. 22-1557 (7th Cir. June 20, 2023) (available here). Here is how the majority opinion in Atkinson starts:
Before us is a Second Amendment challenge to the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1). The appeal reaches us in the wake of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022). That development is significant because Bruen announced a new framework for analyzing restrictions on the possession of firearms. No longer, the Supreme Court made clear, can lower courts balance interests — of an individual’s right to possess a firearm and the state’s commitment to promoting personal or public safety — to resolve the constitutionality of the challenged restriction. The new approach anchors itself exclusively in the Second Amendment’s text and the pertinent history of firearms regulation, with the government bearing the burden of “affirmatively prov[ing] that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 2127.
The Supreme Court decided Bruen after the district court faithfully applied our precedent and rejected Patrick Atkinson’s Second Amendment challenge to § 922(g)(1). The parties’ briefing on appeal only scratches the surface of the historical analysis now required by Bruen. In these circumstances, we think the best course is to remand to allow the district court to undertake the Bruen analysis in the first instance.
Here is how Judge Woods' dissenting opinion starts:
The question before us in this case could not be more important: may individual rights under the Second Amendment be curtailed or denied only on the basis of a granular, case-by-case analysis, or does Congress have the power to enact categorical restrictions? And if some categorical limits are possible and others are not, what sorting principle may or must we use to separate the permissible from the impermissible?
My colleagues have taken the position that we need further input from the district court before we can tackle the present case. With respect, I do not agree with them. The issue before us is whether 18 U.S.C. § 922(g)(1) is compatible with the Second Amendment. That statute prohibits those convicted of a crime for which the punishment exceeds one year in prison (usually felonies) from possessing a firearm or ammunition. This is a pure question of law, and our consideration is therefore de novo. If we think that we would benefit from further exploration of the issue, in light of the intervening decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), nothing prevents us from asking the parties to submit supplemental briefs. Exactly that process occurs when we are confronted with an unfamiliar question of foreign law — another setting in which we have the authority to conduct our own research. See Fed. R. Civ. P. 44.1. Just so here: we must decide whether, in light of the textual and historical materials to which Bruen directs us, section 922(g)(1) is constitutional. Remanding this case to the district court will not reduce our responsibility to evaluate that question independently when the case inevitably returns to us.
My own assessment of the materials that now govern Second Amendment questions per Bruen convinces me that the categorical prohibition created by section 922(g)(1) passes muster under the Constitution. I would therefore affirm the district court now, without saddling it with a Ph.D.-level historical inquiry that necessarily will be inconclusive.
The Supreme Court this morning handed down a significant ruling in Jones v. Hendrix, No. 21-857 (S. Ct. June 22, 2023)(available here), limiting the reach of the general habeas corpus statute, § 2241, for federal prisoners. Justice Thomas authored the opinion for the Court, which starts this way:
This case concerns the interplay between two statutes: 28 U.S.C. § 2241, the general habeas corpus statute, and § 2255, which provides an alternative postconviction remedy for federal prisoners. Since 1948, Congress has provided that a federal prisoner who collaterally attacks his sentence ordinarily must proceed by a motion in the sentencing court under § 2255, rather than by a petition for a writ of habeas corpus under § 2241. To that end, § 2255(e) bars a federal prisoner from proceeding under § 2241 “unless . . . the [§ 2255] remedy by motion is inadequate or ineffective to test the legality of his detention.”
Separately, since the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), second or successive § 2255 motions are barred unless they rely on either “newly discovered evidence,” § 2255(h)(1), or “a new rule of constitutional law,” § 2255(h)(2). A federal prisoner may not, therefore, file a second or successive § 2255 motion based solely on a more favorable interpretation of statutory law adopted after his conviction became final and his initial § 2255 motion was resolved.
The question presented is whether that limitation on second or successive motions makes § 2255 “inadequate or ineffective” such that the prisoner may proceed with his statutory claim under § 2241. We hold that it does not.
Justices Sotomayor and Kagan dissent with a short opinion, and Justice Jackson dissents with an opinion that is nearly twice as long as the opinion of the Court. It starts this way:
Today, the Court holds that an incarcerated individual who has already filed one postconviction petition cannot file another one to assert a previously unavailable claim of statutory innocence. The majority says that result follows from a “straightforward” reading of 28 U.S.C. § 2255. Ante, at 10, 12. But the majority reaches this preclusion decision by “negative inference.” Ante, at 10. And it is far from obvious that § 2255(h)’s bar on filing second or successive postconviction petitions (with certain notable exceptions) prevents a prisoner who has previously sought postconviction relief from bringing a newly available legal innocence claim in court. See Part II, infra.
In any event, putting aside its questionable interpretation of § 2255(h), the majority is also wrong to interpret § 2255(e) — known as the saving clause — as if Congress designed that provision to filter potential habeas claims through the narrowest of apertures, saving essentially only those that a court literally would be unable to consider due to something akin to a natural calamity. See Part I, infra. This stingy characterization does not reflect a primary aim of § 2255(e), which was to “save” any claim that was available prior to § 2255(h)’s enactment where Congress has not expressed a clear intent to foreclose it. Jones’s legal innocence claim fits that mold.
I am also deeply troubled by the constitutional implications of the nothing-to-see-here approach that the majority takes with respect to the incarceration of potential legal innocents. See Part III, infra. Apparently, legally innocent or not, Jones must just carry on in prison regardless, since (as the majority reads § 2255) no path exists for him to ask a federal judge to consider his innocence assertion. But forever slamming the courtroom doors to a possibly innocent person who has never had a meaningful opportunity to get a new and retroactively applicable claim for release reviewed on the merits raises serious constitutional concerns.
Thus, in my view, all roads lead to an interpretation of § 2255 that is diametrically opposed to the one that the majority announces. Whether one gets there by virtue of a proper reading of § 2255(e) or an informed understanding of § 2255(h), or by affording due respect to the core constitutional interests at stake, Jones’s successive petition alleging legal innocence should have been considered on the merits. Therefore, I respectfully dissent.
I am going to need to read these opinions closely before having a full take. But given all the recent SCOTUS substantive rulings limiting the reach of federal criminal statutes, there is a bit of irony (or perhaps purpose?) in the Court's decision in Jones restricting a procedural means for federal defendants to press claims based on on these substantive rulings.
Though not the biggest case of interest to the federal criminal justice bar handed down by the Supreme Curt today (that's Jones v. Hendrix to be covered in coming posts), criminal justice fans will still want to check out SCOTUS's work in Pugin v. Garland, No. 22-23 (S. Ct. June 22, 2023) (available here). Here is how Justice Kavanaugh's opinion for the Court gets started:
Federal law provides that noncitizens convicted of an “aggravated felony” are removable from the United States. The definition of “aggravated felony” includes federal or state offenses “relating to obstruction of justice.” 8 U.S.C. § 1101(a)(43)(S). The question here is whether an offense “relat[es] to obstruction of justice” under §1101(a)(43)(S) even if the offense does not require that an investigation or proceeding be pending. That question arises because some obstruction offenses can occur when an investigation or proceeding is not pending, such as threatening a witness to prevent the witness from reporting a crime to the police. We conclude that an offense may “relat[e] to obstruction of justice” under § 1101(a)(43)(S) even if the offense does not require that an investigation or proceeding be pending.
Six Justices are in the majority in Pugin, three in dissent, but not in the usual 6-3 arrangement. Justice Jackson joined the majority (and authored a short concurrence), while Justice Sotomayor's dissent was joined by Justices Gorsuch and Kagan (though Justice Kagan jumped off the last part). Here is how the dissent starts:
From early American laws, to dictionaries, to modern federal and state obstruction statutes, interference with an ongoing investigation or proceeding is at the core of what it means to be “an offense relating to obstruction of justice,” 8 U.S.C. § 1101(a)(43)(S). The Court circumvents this ample evidence only by casting a wide net and then throwing back all but the bycatch. That approach “turns the categorical approach on its head,” Esquivel-Quintana v. Sessions, 581 U.S. 385, 393 (2017), and subverts the commonly understood meaning of “obstruction of justice” when Congress enacted § 1101(a)(43)(S) in 1996. I respectfully dissent.
Old English nursery rhyme “Monday’s Child,” which says "Thursday's child has far to go," came to mind as I geared up for a busy day. Specifically:
At 10am, we are expecting opinions from the Supreme Court. I think June 22, which I believe is the first full day of summer, could well be the day we get Jones v. Hendrix concerning federal collateral appeal procedures. Other than the affirmative action cases, Jones is the longest pending case.
At 12noon, the Drug Enforcement and Policy Center has its first big online event in our summer 2023 Cannabis Regulatory Deep Dive series. This event is titled "Changes in Federal Approaches to Cannabis: Process and Impact," and a full event is description is at this website (where you can still register). In short form: "Please join the Drug Enforcement and Policy Center and a panel of experts as they discuss the role of other federal agencies in the scheduling review process and the legal implications of marijuana’s status as a controlled substance and the potential impact of rescheduling marijuana or descheduling it entirely." I was originally expecting to serve as a moderator of this event, but...
At 2pm, the House Judiciary Subcommittee on Crime and Federal Government Surveillance will hold a hearing titled "The Examination of Clemency at the Department of Justice." I have the honor of serving as a witness at this hearing, so I am in Washington DC for this eventful day. (With the Prime Minister of India speaking to a joint session of Congress at 4pm, I can at least be confident the House Judiciary Subcommittee is unlikely to run long.)
The title of this post is the title of this forthcoming book chapter authored by Thea Johnson now available via SSRN. Here is its abstract:
For many decades, courts across the United States have experimented with administering justice in virtual spaces. But the COVID-19 pandemic accelerated those experiments in some jurisdictions and forced other jurisdictions to adopt new technologies to process cases. While trials, particularly jury trials, were difficult to move into the online sphere, the plea process was easily transferable to the virtual world. Lawyers could negotiate cases via phone, text or video. Judges could see defendants from their homes, or via video from jail. Technologies like Zoom made it easy for the lawyers, clerks and even members of the public, to join the proceedings.
This chapter reflects on the intersection of these virtual experiments and the plea process. It argues that, in some ways, the move to virtual spaces has had very little impact at all on the process. The negotiation of a plea has always been virtual to some degree. Well before the pandemic, lawyers communicated across platforms, often with little input from either defendants or victims, to reach resolutions. To the extent that the loss of the criminal courtroom has had an impact on the interactions between lawyers, it is mostly as a result of them losing those informal spaces — courtroom hallways and back corners — where much of the real-time deal-making occurred. This chapter argues that the shift away from informality might have salutary effects, including increasing the likelihood of the parties creating a record of plea negotiations, and otherwise slowing down what is often a quick and frenzied process. More importantly, observing the virtual plea process helps us challenge assumptions about the importance of the physical space of the courtroom, and the interactions that happen within it. Indeed, an unintended benefit of moving to virtual proceedings has been to release defendants from the punishment of merely attending court. As Malcolm Feeley identified in his work nearly four decades ago, the process of being in the courtroom, separate from any of the formal outcomes associated with the criminal system, is itself a form of punishment. Without courtrooms, defendants are freed from the constraints of a physical space that has often been used to degrade them. As this chapter explores, in the case of plea bargaining, a virtual world may be a world in which defendants can claim more autonomy and respect during the plea process.
The press and others are gearing up for the finishing up of the current Supreme Court Term. Most court-watchers reasonably expect that we will get the last dozen or so opinions from the Court over the next 10 days. And, as has been true in the last few Terms, the current SCOTUS Term is almost certain to be most remembered for decisions outside the core realm of criminal justice. The coming decision on affirmative action in higher education and a number of First Amendment rulings are especially likely to be the defining decisions of the Term.
But, as I have mentioned before, it has still been quite an interesting SCOTUS Term for hard-core criminal justice fans with seemingly lots of (small?) wins for criminal defendants in cases like Reed, Cruz, Ciminelli, Percoco, Dubin and Lora. I am certain the winning record for criminal defendants largely reflects selection effects as to what cases result in cert grants, but the pattern of outcomes in those cases is still pretty striking for a court that is purportedly so conservative. That said, there are still a few big criminal cases still yet to be resolved this Term, and I suspect many federal defenses attorneys will not look back at this Term fondly if Jones v. Hendrix ends up creating significant new limits for collateral review.
As we await final decisions for this Term, I would be eager to hear how folks view the current Justices and the overall court on various criminal justice fronts. Given the age of the current Justices, we could have the current composition of the Court in place for many years. Could this particular Court end up more defendant friendly than might have been predicted? Or is it only the "little" issues that defendants are likely to win with this SCOTUS? (Readers will not be surprised to hear me say that my opinion of this Court will certainly be significant shaped by how it eventually resolves the multiple oft-relisted acquitted conduct cases that have now been pending for nearly a year.)
I have noted in a few prior posts that Florida Gov Ron DeSantis is criticizing former Prez Donald Trump for his support of FIRST STEP Act. In the last few days, I have seen a a number of new notable press pieces and commentaries on this front:
From the Christian Broadcasting Network, "Ron DeSantis' Tough-on-Crime Agenda Targets Signature Trump Criminal Justice Reform Law"
From the Florida Phoenix, "DeSantis goes after Trump on federal criminal justice reforms, clashing over law-and-order front: But some conservatives take issue with DeSantis calling for repeal of Trump’s 'First Step Act' in Congress"
From Politico, "DeSantis takes aim at Trump’s signature criminal justice reform law: He voted in favor of an earlier version of it when he served in Congress."
From Newsweek, "DeSantis is Wrong for Attacking Trump's First Step Act"
On a slightly different but related front, Fox News aired another segment of former Prez Trump's interview with Bret Baier during which Trump was bragging about granting clemency to Alice Marie Johnson until Baier noted she would be subject to execution under Trump's call for the death penalty for drug dealers. As the video shows, Trump stumbled through his response, as noted in a number of press pieces:
From The Hill, "Trump calls for death penalty for drug dealers; Fox’s Baier notes it would apply to woman he championed"
From The Independant, "Trump stumbles when Fox host tells him his plan to execute drug offenders would include people he pardoned"
And, on the topic of clemency, it appears that former VP Mike Pence is eager to go after his former running mate's clemency record:
From Fox News, "Top Pence staffer condemns Trump's last-minute pardons for 'cocaine traffickers,' family members"
Interesting times.
Prior related posts:
I woke up this morning to the surprising news of a prosecution and plea deal for Hunter Biden (basics here), and then I spent most of the rest of the day in the car. Thus, I have had precious little time to carefully review and reflect on all the particulars (and subsequent commentary) regarding how the US Attorney in Delaware decided to approach the prosecution and plea of the son of the sitting President. But, despite being under-informed on all the facts and on typical DOJ practices, I still cannot resist sharing a few musings on this high-profile plea:
1. "Iceberg" timing: That Hunter was subject only now to what might be called "modest" charges after years of investigation leads me to wonder what has been going on beneath the surface with this criminal investigation (and internal DOJ debates over exactly what charges should be brought and how they might be settled). Hunter and his lawyers were obviously made aware — recently? long ago? — about potential charges and negotiated this deal, and I wonder what kind of negotiating timeline and process was involved to result in a plea that nearly ensures that Hunter can entirely avoid any felony convictions.
2. Avoiding felony convictions: I am inclined to describe Hunter's deal as a sweetheart not so much because he seems likely to avoid prison time, but because he is likely to avoid any felony convictions. US Sentencing Commission data show a good percentage of tax fraud offenders get non-prison sentences and most firearm offenders have significant criminal history that leads to prison time. Even if Hunter had pleaded guilty to felony tax and gun charges, his lawyers would have been able to make effective sentencing arguments that he should just get probation for these offenses. But, of course, the actual plea deal involves Hunter pleading guilty only to misdemeanor tax charges and to enter a "Pretrial Diversion Agreement with respect to the firearm [charge]" so that he will likely avoid any felony convictions. I surmise that both of these "plea moves" are pretty rare — tax fraud defendants rarely get to plead only to misdemeanor charges and illegal gun possession defendants rarely get a diversion agreement.
3. Echoes of Bruen: The Supreme Court's landmark Second Amendment ruling in Bruen gave Hunter and his lawyers an interesting new argument to contest the gun charges. At least two district courts (as noted here and here) have decided § 922(g)(3) is unconstitutional, and I suspect the US Attorney in Delaware (and others inside DOJ) did not want to shine a bright light on this issue through a contested prosecution of the president's son. This factor certainly could justify — and may well have motivated — the "Pretrial Diversion Agreement" approach to the gun charge against Hunter. (That said, Hunter also could have been subject to prosecution for lying on the form needed to buy a gun, and that charge would seem less likely to be subject to Second Amendment challenge.)
4. "Sweetheart deals" for everyone?: Other than persons who relish the idea of a Biden behind bars, I suspect most folks thinking about all the 3553(a) sentencing factors would have a hard time making a strong case that Hunter needs to be sent to federal prison for a long time. (Please know that I would make the same 3553(a) assertion about Donald J. Trump.) In other words, but for all the political acrimony, I sincerely believe relatively few could make a very potent argument that Hunter really needs to be incarcerated for an extended period. In turn, to the extent arguments are being made that Hunter is benefitting from a "sweetheart deal," I would say that the problem is not that Hunter is getting a huge leniency break, but rather that similarly situated persons are too often subject to unduly severe treatment by our harsh federal criminal justice system.
5. Hunter could still get significant prison time. Though I expect Hunter will end up sentenced to probation on his tax misdemeanor charges, he is facing up to two years in prison. Though I would be surprised if a sentencing judge would seriously consider maxing Hunter out, I would not be shocked at all if the judge were to decide that some short period of incarceration was needed to "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense" and "to afford adequate deterrence to criminal conduct." 18 USC 3553(a)(2)(A) and (B). (Perhaps for my own amusement, I am already wondering if the District of Delaware has any local rules for the filing of amicus briefs in a sentencing proceedings.)