CrimProf Blog

Summary of the U.S. Sentencing Commission’s 2025 Guideline Amendments

    On April 11, the U.S. Sentencing Commission adopted proposed amendments to the Federal Sentencing Guidelines. The amendments will become effective November 1, 2025, unless Congress passes a statute changing them, which is highly unlikely.

    The “Reader Friendly” version of the amendments is 682 pages. Below is a concise “TL;DR” table for busy professors and practitioners, followed by a more detailed summary:

 

Amendment	Summary	Effect
Simplification: Eliminating Most Departures	Original introduction and most departures moved to appendix; variances encouraged instead of departures	Guidelines simplified; judicial discretion increased
Supervised Release Reform	Judges encouraged to (1) use tailored, rehabilitative responses to violations instead of revocation, and (2) impose individualized supervised-release lengths and conditions	Shorter supervised release terms and less onerous special conditions
Drug Guidelines: Mitigating Role	Judges encouraged to apply mitigating role adjustments more frequently if offender’s “primary function” was lower level	Reduction in guideline range for lower-level drug offenders
Drug Guidelines: Fentanyl “Fake Pill” Cases	Lowers mens rea for enhancement from “willful blindness” to “reckless disregard” for offenders who sell fentanyl disguised as legitimate pharmaceuticals	Increase in guideline range for certain fentanyl offenders
Firearms: Machinegun Conversion Devices	Adds enhancements for offenders who transform semi-automatic firearms into fully automatic weapons	Increase in guideline range for certain firearms offenders
Circuit Conflicts: Physical Restraint Definition	Enhancement requires actual physical restraint for robbery enhancement (not just threats with firearm)	Less frequent application of physical-restraint enhancement
Circuit Conflicts: Criminal History and Intervening Arrest Rule	A traffic stop is not an “intervening arrest” for criminal history scoring	Multiple prior sentences more often treated as a single sentence
New Advisory Group: Sentence Impact Advisory Group (SIAG)	Advisory group of individuals sentenced for a federal offense or family of the same	Incorporate perspectives of sentenced individuals
New Advisory Group: Ad Hoc Research and Data Practices Advisory Group (RDPAG)	Experts to advise on data use and research practices	Incorporate perspectives of external experts on best practices

 

Simplification – Eliminating Most Departures

    Stakeholders have been passionate about simplifying the Guidelines since their creation, but the Commission has never enacted substantial simplification reforms. Until now. The 2025 simplification amendments remove one step from the Guidelines analysis and delete huge chunks from the Guidelines Manual in the process. The omitted sections will be moved to a separate appendix, reducing the weight of many messenger bags across the country.

    The 2025 simplification amendments formalize what judges have been informally practicing since United States v. Booker (2005) and Irizarry v. United States (2008): simplifying the sentencing process from three steps to two by removing most departures. Previously, judges (1) calculated the guideline range, (2) considered formal guideline-based departures, and (3) applied § 3553(a) sentencing factors. Given that departures have steadily declined in favor of variances, the Commission now officially streamlines the process into two steps: Guideline calculation (incorporating any Guideline adjustments) followed directly by considering § 3553(a) factors for the final sentence determination.

    Certain departure provisions that were most used or were congressionally mandated (e.g., benefits for providing substantial assistance or for participating in “Fast Track” programs) are retained. Additionally, the departures that are moved out of the core Guidelines Manual and into an appendix can still be considered for the purpose of imposing a variance. Given the decline in judges’ use of departures anyway (now very rarely imposed), it is not clear to me that there is much of a difference on the ground for most offenders by moving departures to an appendix. But any reduction in the complexity and length of the Guidelines is welcomed by most.

    The simplification amendment might do much more symbolically, though—it reemphasizes to judges the advisory nature of the Guidelines. The amendment, like the next one discussed, urges judges to take more control over sentencing discretion. The Commission explicitly told judges to stop looking at statutes like 28 U.S.C. § 994 (Duties of the Commission) for binding sentencing directions. That statute, the Commission tells judges, was Congress telling us what to do, not you. (“A new background commentary to this section explains that the requirements and limitations imposed upon the Commission by 28 U.S.C. § 994 do not apply to sentencing courts.”)

    The judge’s task is simpler: impose a sentence that is “sufficient but not greater than necessary” to comply with the plurality of sentencing purposes set forth in 18 U.S.C. § 3553(a) (retribution, deterrence, public safety, and rehabilitation). And while Congress gave the Commission a short leash in Title 28 regarding what it can and can’t consider when drafting guidelines, Congress has told judges in Title 18 that “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. This seems like a permission structure for judges to begin with the Guidelines, but to get more comfortable deviating in appropriate circumstances. (See also, of course, Stith and Cabranes, Fear of Judging. For the view that this amendment goes even further than what I’ve stated here, see this episode of Set for Sentencing.)

Reforming Supervised Release

    This important amendment focuses on supervised release terms, conditions, and violations.

    Congress originally envisioned supervised release as a creative tool judges could employ selectively to either (1) impose a shorter term of imprisonment combined with supervised release for lower-risk offenders, or (2) “ease the defendant’s transition into the community after the service of a long prison term.” S. Rep. No. 225, 98th Cong., 1st Sess. 54 (1983). This somehow morphed into a de facto term of three, five, or even more years of supervised release in almost every federal sentence, imposed “reflexively” according to the Commission. The onerous conditions of supervised release meant that many offenders had their liberties restricted far more than the average citizen for years after serving their prison sentence, and many offenders are repeatedly reincarcerated for minor violations.

    The amendment begins with some helpful conceptual clarity. It explicitly distinguishes supervised release (aimed primarily at reentry and rehabilitation) from probation (part of the original punitive sentence). Judges have sometimes conflated the purposes of probation and supervised release, resulting in revocations of supervised release and reincarceration for reasons that seem more appropriate in the context of probation revocation. This amendment aims to clarify the conceptual differences. (If you’ll allow a slight digression, the probation-revocation statute still has a quite obvious scrivener’s error. See, e.g., United States v. Coatoam, 245 F.3d 553 (6th Cir. 2001) (“There can be no doubt that the reference to § 3563(a)(4) . . . is an error.”)).

    The next change directs judges to conduct an individualized assessment of whether the offender even needs supervised release in the first place, and whether special conditions are actually appropriate for this offender. Judges shouldn’t just reflexively impose these things, unless required by statute. This change should free up at least some resources so that probation officers can focus on individuals who actually need supervision. The change is also fair. Supervised release, like all parts of the sentence, must be “sufficient, but not greater than necessary, to address the purposes of imposing supervised release on the defendant.” 18 U.S.C. §§ 3583(c). Instead of automatically imposing onerous terms for three or more years, judges might now impose targeted terms and conditions, and perhaps impose only a one-year term instead of three (if applicable statutes allow) to see how the offender performs.

    Judges are also encouraged in the amendment to adopt graduated sanctions for supervised release violations rather than automatic revocations. Courts now have clearer endorsement to apply intermediate responses—such as modified conditions or increased treatment—prior to resorting to reincarceration. Additionally, the amendment makes it a bit easier for judges to terminate a longer term of supervised release when the offender demonstrates that it is no longer needed. Long term, these changes could meaningfully reduce unnecessary terms of supervision, conditions of release, and revocations.

Drug Sentencing Adjustments: Clarifying Mitigating Roles and Fentanyl Risks

    Drug sentencing saw two notable adjustments—one reducing sentences and one increasing them. First, the amendments aim to reduce sentences for low-level drug offenders. Offenders who play only a minimal or minor role in drug trafficking should not face the same sentence as a kingpin. But the Commission said that judges either weren’t aware or had ignored the Commission when its 2015 amendments tried to get judges to more frequently apply reductions for offenders playing a minimal or minor role. “Commission data shows that the prior amendment did not result in a sustained increase in application of the mitigating role adjustment in §2D1.1 cases.”

    The Commission is now trying to be crystal clear to judges that they should apply these reductions more frequently. Specifically, the Commission directs judges to consider whether the offender’s “primary function” was lower level. This is easier to satisfy than §3B1.2 mitigating-role eligibility. To hammer the point home, the Commission even moved this discussion directly to the §2D1.1 Guideline so that judges and parties can’t miss it (instead of remembering to flip to Chapter 3 of the Guidelines Manual after the Chapter 2 calculations are done). “The amendment places the special instruction in §2D1.1 instead of §3B1.2 to highlight that the rules for determining §3B1.2 eligibility are different in §2D1.1 cases.”

    On the opposite end, the Commission strengthened penalties related to fentanyl. Previously, offenders who sold fentanyl disguised as legitimate pharmaceuticals were subject to enhancements only if prosecutors demonstrated “willful blindness” regarding the substance’s identity—a challenging standard. The 2025 amendment lowers the requisite mental state to “reckless disregard,” broadening applicability.

Resolving Circuit Splits: Physical Restraint and Intervening Arrests

    Like most years, the Commission also tackled several circuit conflicts. Is a victim “physically restrained” if the offender pointed a gun at them and said or suggested, “don’t move”? Some circuits held merely pointing a firearm during a robbery qualified as “physical restraint,” triggering a two-level enhancement, while others required actual physical confinement or binding. The amendment adopts the latter view, clarifying that the mere threat or display of a firearm, absent actual physical restraint, no longer qualifies for this enhancement.

    Additionally, the Commission clarified the definition of an “intervening arrest” for criminal history calculations. The Seventh Circuit split with other circuits over whether a mere traffic stop constituted an intervening arrest, resulting in increased criminal history points. Under the new amendments, traffic stops alone are explicitly excluded, meaning offenses separated solely by a stop count as related. Both of these changes may modestly lower criminal history scores for certain offenders.

Firearm Enhancements: Machinegun Conversion Devices

    The final amendment targets machinegun conversion devices—small kits (often known as “auto sears” or “Glock switches”) that transform semi-automatic firearms into fully automatic weapons. The amendment establishes specific enhancements for possessing multiple devices or distributing even one. Possessing four or more devices triggers a two-level increase, while possessing thirty or more brings a four-level increase.

Creating Two New Advisory Groups

    Alongside Guideline amendments, the Commission launched two important advisory groups.

    First, the Commission wants to include offenders in these discussions. The Commission hears from practitioners, probation officers, victims, and even tribes in the form of longstanding advisory groups. The Sentence Impact Advisory Group (SIAG) is a new standing advisory group tasked with providing guidance on how sentencing policies affect individuals, communities, and the broader criminal justice system. It is composed of up to 9 members who have either been sentenced for a federal offense or are family members of an individual sentenced for a federal offense.

    The Commission also created the ad hoc Research and Data Practices Advisory Group (RDPAG). This advisory group of up to fifteen data and social-science experts will recommend best practices for how the Commission collects, manages, analyzes, and disseminates sentencing data. Letters of intent to join SIAG or RDPAG must be submitted by June 6, 2025.

    Critiquing what the Commission did and did not address this year, see Jonathan J. Wroblewski, Did the Sentencing Commission Just Make the Guidelines Even Worse?

Let’s Amend the US Constitution

Classes in Criminal Procedure: Investigation and Criminal Procedure: Adjudication are of course constitutional law… we just smartly don’t title them as such to keep our colleagues from wishing to teach them.  Thus, at some point in some discussion, a student raises whether we ought to amend our federal Constitution to fix some particularly vexing issue, at which point we remind students of the reality.  That isn’t happening.  We just don’t do it.  Good idea or no – doesn’t much matter.  It’s just too hard, what with needing 2/3 of both houses of Congress and then 3/4 of all state legislatures (among equivalently-hard alternatives).  Hasn’t happened since 1992.  Which was a great year for graduating high school—the best, incidentally—but otherwise a year that doesn’t especially commend itself.  And that was finally adopting a proposal from… September 25, 1789.  At that rate, our best idea might become constitutional somewhere around the year 2225.  So, yeah, just not gonna happen.

And indeed, if one pages through what our Representatives suggest as constitutional Amendments, it reads like a list of ‘not gonna happen.’  A balanced budget.  A federal debt limit.  Repealing the Sixteenth Amendment.  Limiting the Presidential pardon.  Allowing sixteen-year-olds to vote.  Term limits for Congress.

So, here’s my plug: yes it is extremely difficult to amend our Constitution.  And yes that was purposeful, and probably Burkean smart (just take a look at what happens with state constitutions that run otherwise).  Still, amendment would be easier if we got used to it.  Grease the wheels through recent experience.

Thus, let’s take the dumbest provision in our Constitution and fix it.  Doesn’t matter what it is, so long as the change is not substantively harmful… because the point is to learn to do this thing, so we could collectively do it again for something more important.

My vote?  Requiring the President be “a natural born Citizen.”  What’s your pick?  What’s the most likely thing for which we could get the required fractions to agree?  What’s the lowest-hanging fruit?

On Glossip and Oklahoma Criminal Justice

Well, the decision is in, and Glossip v. Oklahoma, No. 22-7466, doesn’t hold any punches.  The Court’s opinion (basically 5-3 in critical part, as Gorsuch sat this one out) reads like a ‘how to’ manual in unethical investigation and prosecution, from initial suspect interrogation (feeding the killer what the State wished to hear, instead of asking what he had to say), to pretrial ethics violations (failure to disclose known defense-favorable evidence), to trial ethics violations (communications with a sequestered witness in attempt to alter testimony and failure to correct State witness known perjury), to post-trial ethics violations (destruction of potentially defense-favorable evidence and shifting stories to better negate revelations).  It’s what happens when a State engages in a search for convictions, rather than a search for truth.  As a result, we can never know what happened on that January day in 1997.  That’s what results when police and prosecutors irretrievably taint an investigation and prosecution, and it is a result nobody—not the victim’s family, not the defendant, not the defendant’s family, and not any citizen of Oklahoma—should accept.

So much has already been written about the case, and the Court’s opinion is so comprehensive, that I won’t attempt to add much here.  But it is worth emphasizing how bad this one is: because the Court found a Napue violation (failure to correct known perjury), it didn’t even consider the more-commonly-problematic Brady claims.  In other words, this one was so bad that the Court didn’t need to even consider other, likely also independently meritorious claims.  As Justice Marshall explained for a unanimous Court in California v. Trombetta, 467 U.S. 479 (1984),

Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed ‘what might loosely be called the area of constitutionally guaranteed access to evidence.’ Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.

The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v. Illinois, 360 U.S. 264 (1959); see also Mooney v. Holohan, 294 U.S. 103 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S., at 87. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant’s guilt. United States v. Agurs, 427 U.S., at 112. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U.S. 150 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U.S. 53 (1957).

Quite right.  Glossip found “the most rudimentary of the access-to-evidence” constitutional violations, and so was able to stop there.  (Also, for those ‘in the weeds’ of criminal procedure, the Glossip Court made some important moves to make it easier for a defendant to win a new trial in the Mooney/Napue situation, sensibly pushing what was a sui generis rule of reasonable likelihood into the more favorable beyond a reasonable doubt standard typically used for constitutional trial error.)

So, where do we go from here, Oklahoma?  We ought to consider how the Oklahoma Court of Criminal Appeals could get this one so wrong, again and again, even as ever more damaging evidence came to light.  And, more generally, how do we learn from this?  How do we improve?  Given that the Glossip investigation and prosecution demonstrate massive failures, how do we not only, insofar as we are able, remedy those errors in this particular case, and then in all existing cases like it, but further enact safeguards to minimize the likelihood we will repeat such unacceptable practices in the future?

Finally, as to the Thomas/Alito/sometimes Barrett Glossip dissent?  I’m content to quote Justice Gorsuch, writing in Gamble v. United States, 587 U.S. 678 (2019): “Really?”  How could anyone have so low an estimation of what criminal justice—let alone capital-case criminal justice—ought to demand?

And here's what the AALS Criminal Law Section has lined up...

As an addendum to my last post, on behalf of the AALS Criminal Procedure Section, what follows is information about the events planned by the AALS Criminal Law Section for the AALS Annual Meeting (posted at the request of the Section's chair, Cortney Lollar):

 

2025 AALS Annual Meeting Criminal Law Section Panels

 

Criminal Law Junior Scholars’ Works-in-Progress

Jan. 8, 2:40-4:10pm, Moscone Center, Room 212

Panelists: Matthew P. Cavedon (Emory), Guha Krishnamurthi (Maryland), Isis Misdary (Seton Hall), Benjamin Pyle (Boston University), Raquel Wilson (Kentucky); Shawn Fields (California Western), moderator

 

This session presents exciting works-in-progress by junior scholars in the Criminal Law field.

 

Criminal Law, Shaping Law through Applied Storytelling, Critical Theories & Epistemology in the Classroom

Jan. 9, 2:40-4:10pm, Moscone Center, Room 205

Panelists: Matthew Boaz (Kentucky), Bennett Capers (Fordham), Sherri Lee Keene (Georgetown), Marisol Orihuela (Yale), Maybell Romero (Tulane); Yvette Butler (Indiana), moderator

 

Panelists and the audience will consider the similarities and differences, as well as the consequences, of using Applied Legal Storytelling, Critical Theory, and Epistemology in legal scholarship, clinical work, legal education, and the legal profession. Panelists are Criminal Law scholars who work and write on the criminalization of marginalized communities, and plan to address the ways these overlapping methodologies impact their scholarship and the criminal system. By the end of the program, all will leave with a better understanding of how these methodologies work and which ones should be utilized for different impacts on scholarship and the legal system.

 

 

Pregnancy Crimes: New Research and Advocacy

Jan. 10, 9:50-11:20am, Moscone Center, Room 211

Panelists: Wendy Bach (Tennessee), Valena Beety (Indiana), Mary D.M. Fan (U. Washington), Eve Hanan (UNLV), Brenda V. Smith (American), Karen Thompson (Pregnancy Justice); Cortney Lollar (Georgia State), moderator

 

This panel addresses trends in policing, prosecution, and punishment related to pregnancy outcomes. In keeping with the conference theme of “Courage in Action,” the panel highlights advocacy efforts against the use of criminal systems to surveil, regulate, and punish pregnancy outcomes. The panel will address who is being prosecuted for their actions during or the outcomes of their pregnancies; the crimes are being charged and what evidence is deemed sufficient proof; how these cases being litigated, and by whom; and how the trends in pregnancy prosecutions intersect with race, gender, gender identity, sexuality, poverty, rurality, and access to health care.

 

 

Prison Law: Operating in the Shadows

Jan. 11, 9:50-11:20am, Moscone Center, Room 205

Panelists: Paulina Arnold (Michigan), Nicole Godfrey (Denver), Danielle Jefferis (Nebraska), Zina Makar (Baltimore), Tiffany Yang (Maryland); Ben Levin (Washington U.), moderator

 

Prison law is emerging as its own unique domain of scholarship where civil law operates within the criminal law space to focus specifically on the impact incarceration has on an individual beyond their conviction. This panel features a diverse set of works-in-progress that provide important descriptive and analytical accounts that illuminate new developments in prisons and prison law–they also deepen our understanding of how incarceration and the civil justice system function in our system of criminal law.

CrimPro AALS Section events later this week

With the AALS Annual Meeting coming up next week in San Francisco, I wanted to plug a handful of events that the AALS Criminal Procedure Section will be hosting at the conference. Hope to see some of you there!

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Wednesday, January 8:

12:50 – 2:20

Looking Back-and Forward-After Twenty Years of Crawford v. Washington (Criminal Procedure, Co-Sponsored by Evidence)

In Crawford v. Washington the Supreme Court set out a new framework for analyzing Confrontation Clause claims. Crawford issues are among the most frequently litigated questions in criminal cases. Crawford offers a case study on constitutional interpretation, the evolution of precedent, and the systemic consequences of making more difficult the prosecution of crimes against especially vulnerable victims. Crawford will continue to raise difficult and important questions, as shown by last term's decision in Smith v. Arizona – a case that decided one difficult issue but dodged another. This panel will discuss Crawford's past, present, and future.

Speakers:

Donald A. Dripps, University of San Diego School of Law

Richard D. Friedman (Moderator), The University of Michigan Law School

Erin E. Murphy, New York University School of Law

Erin Sheley, California Western School of Law

Emily Spottswood, Florida State University College of Law

 

12:50-2:20

Privacy and Racial Justice (Defamation and Privacy, Co-Sponsored by Children and the Law, Criminal Procedure, Employment Discrimination Law, Jurisprudence, and Poverty Law)

This program will highlight the contributions of African Americans and other people of color to U.S. privacy jurisprudence and will explore how despite these contributions people of color continue to disproportionately suffer privacy infringements in their homes and in public. This program will emphasize how surveillance, tracking, and data mining techniques always has and continues to intensify the racialized privacy regime in the U.S.

Speakers

Anita L. Allen, University of Pennsylvania Carey Law School

Chaz Arnett, University of Maryland Francis King Carey School of Law

Norrinda Brown, Fordham University School of Law

Abi Hassen, Penn State Dickinson Law

Najarian Peters, University of Kansas School of Law

Shaakirrah Sanders (Moderator), Penn State Dickinson Law

Friday, January 10:

8:00 – 9:30 am

Criminal Procedure Beyond the Casebook

The conventional casebook is giving way to new methods of pedagogy, including the customized do-it-yourself casebook and the integration of new technologies. Yet Criminal Procedure comprises a relatively narrow band of Supreme Court cases and doctrinal "buckets" that future criminal lawyers must know. How do we innovate with newer technology in order to develop these core concepts? Do we need to go beyond the conventional casebook to achieve these goals? This panel will examine fresh ideas on how to enhance the student learning experience in Criminal Procedure, in terms of both supplementing and supplanting the conventional casebook approach. 

Panelists:

Shih-Chun "Steven" Chien, Cleveland State University College of Law

John J. Francis, Washburn University School of Law

Stephen Galoob, The University of Tulsa College of Law

Stephen E. Henderson, University of Oklahoma College of Law

Michael J. Mannheimer (Moderator), Northern Kentucky University, Salmon P. Chase College of Law

Alexandra Natapoff, Harvard Law School

 

9:50-11:20 am

Pregnancy Crimes: New Research and Advocacy (Criminal Law, Co-Sponsored by Criminal Procedure, Sexual Orientation & Gender Identity Issues, and Law, Medicine and Health Care)

This panel addresses trends in policing, prosecution, and punishment related to pregnancy outcomes. In keeping with the conference theme of "Courage in Action," the panel highlights advocacy efforts against the use of criminal systems to surveil, regulate, and punish pregnancy outcomes. The panel will address who is being prosecuted for their actions during or the outcomes of their pregnancies; the crimes are being charged and what evidence is deemed sufficient proof; how these cases being litigated, and by whom; and how the trends in pregnancy prosecutions intersect with race, gender, gender identity, sexuality, poverty, rurality, and access to health care. 

Panelists:

Wendy A. Bach, University of Tennessee College of Law

Valena E. Beety, Indiana University Maurer School of Law

Mary D. M. Fan, University of Washington School of Law

Eve Hanan, University of Nevada, Las Vegas, William S. Boyd School of Law

Cortney E. Lollar (Moderator), Georgia State University College of Law

Brenda V. Smith, American University, Washington College of Law

Karen Thompson, Pregnancy Justice

12:50-2:20 pm

New Perspectives on Fourth Amendment Suspicion (Criminal Procedure, Co-Sponsored by Criminal Law)

In many respects Fourth Amendment doctrine has evolved to expand law enforcement power to act on suspicions, frequently to the disadvantage of disfavored groups. Reversing these patterns is not just a matter of academic interest but a pressing need, amplified with the advent of more intrusive and pervasive surveillance technologies. Participants in this discussion will address the ways that suspicion is defined and constructed, its role (or failed potential) in constraining government power, the need for alternatives to suspicion to regulate mass data surveillance, and the potential for suspicion to serve as cover for bias.

Panelists:

 Alyse Bertenthal, Wake Forest University School of Law

Mary D. M. Fan, University of Washington School of Law

Andrew G. Ferguson, American University, Washington College of Law

Barry Friedman, New York University School of Law

Lauryn Gouldin (Moderator), Syracuse University College of Law

Aliza Hochman Bloom, Northeastern University School of Law

Michael J. Mannheimer, Northern Kentucky University, Salmon P. Chase College of Law

Jamelia N. Morgan, Northwestern University Pritzker School of Law

Nirej Sekhon, Georgia State University College of Law

Maneka Sinha, University of Maryland Francis King Carey School of Law

Saturday, January 11:

8:00 am - 9:30 am

Criminal Procedure Works-in-Progress 

Participants will present their groundbreaking works-in-progress in the field of criminal procedure, selected through a competitive vetting process. 

Panelists:

Emmanuel H. Arnaud, Benjamin N. Cardozo School of Law

Nila Bala, University of California, Davis, School of Law

Justin Murray (Moderator), New York Law School

Eileen Prescott, Wake Forest University School of Law

Mridula S. Raman, University of California, Berkeley School of Law

Miranda Thompson, Widener University Commonwealth Law School

Quinn Yeargain, Michigan State University College of Law

 

9:50-11:20 am

Prison Law: Operating in the Shadows (Criminal Law, Co-Sponsored by Civil Rights and Criminal Procedure)

Prison law is emerging as its own unique domain of scholarship where civil law operates within the criminal law space to focus specifically on the impact incarceration has on an individual beyond their conviction. This panel features a diverse set of works-in-progress that provide important descriptive and analytical accounts that illuminate new developments in prisons and prison law–they also deepen our understanding of how incarceration and the civil justice system function in our system of criminal law.

Panelists:

 Paulina D. Arnold, The University of Michigan Law School

Nicole B. Godfrey, University of Denver Sturm College of Law

Danielle C. Jefferis, University of Nebraska College of Law

Benjamin Levin (Moderator), Washington University in St. Louis School of Law

Zina Makar, University of Baltimore School of Law

Tiffany Yang, University of Maryland Francis King Carey School of Law

 

 

Crim Book Recommendations

There are of course many books about the criminal law, some of which are fascinating and some of which … aren’t. Here’s are some that I enjoy, where I focus on those I’ve most often used in teaching seminars or that I most often recommend to students. (Thus, extremely scholarly books aren’t here, no matter how brilliant.) Feel free to share any comments or additions, including additions highlighting your own work, in the comments.

Steve Bogira’s Courtroom 302 gives a wonderful sense of the day-to-day realities of an American criminal courtroom. Even as some of the specifics are becoming more dated, the book remains a gem.

John Grisham’s The Innocent Man deftly describes the false conviction and (effectively) systematic torture of Ron Williamson. Grisham of course also has novels that address such matters, including The Confession; few of his later works compare to his early writing, however, and all of his fiction tends to be more fun read than inspiring insight into our systems of criminal justice.

Possibly the best single volume on false convictions is Michael Morton’s Getting Life. Simply amazing.

Some of those false convictions of course result from eyewitness identification, for which Ronald Cotton and Jennifer Thompson-Cannino’s Picking Cotton remains a groundbreaking and redemptive work. Tom Wells & Richard Leo’s The Wrong Guys is a harrowing tale of false confessions. And Shaka Senghor’s Writing My Wrongs provides an inside look at the drug trade that can transform young kids into killers, from which some—including the author—fortunately manage to transform back again.

Anyone wanting to understand the injustice of our criminal justice system couldn’t do better than beginning with Bryan Stevenson’s Just Mercy. It is powerful, inspiring, and deeply troubling. A convincing account of the system’s systemic racial injustice is also found in Michelle Alexander’s The New Jim Crow, and Mark Godsey brilliantly chronicles the journey from prosecutor to innocence lawyer in Blind Justice. The three make a powerful trifecta.

No list would be complete without Anythony Lewis’ Gideon’s Trumpet. Merely as a read it is not as terrific as other books, but it remains a classic. Another classic is certainly Truman Capote’s In Cold Blood, and this one absolutely stands the test of time—an amazingly detailed chronicle of senseless bloodshed. Another is Edward Bennett Williams’ One Man’s Freedom; written in 1962, many of his particular examples are dated, but his general ‘defense of criminal defense’ remains as strong as ever.

And now we have a ‘modern classic’ describing the incredible attempts of Jonathan Rapping to reform public defense: Gideon’s Promise. As is most often the case, it’s even better than the movie (Gideon’s Army). Roy Black’s Black’s Law for the most part holds up well, and would be another good read for any potential criminal defense attorney.

There aren’t too many books chronicling the work of a diligent prosecutor, making Steven J. Phillips’s No Heroes, No Villains a worthy read. Although arguably he makes the prosecution somewhat more difficult than it might have been under a different theory, it presents a fascinating question of how to apply the rules of criminal homicide to a tragic crime. Also noteworthy is Vince Bugliosi’s Helter Skelter, as well as Bennett Gershman’s Prosecution Stories. The latter is sure to spark some classroom debate as it takes positions on charging decisions and other matters on which reasonable minds will disagree.

Students interested in the life of a judge might benefit from Frederick Block’s Disrobed. Some portions are certainly more effective than others, but it is a fairly unique accounting. Of course, they could also turn to Milton Hirsch’s fictional The Shadow of Justice.

Students interested in the workings of a criminal jury might enjoy D. Graham Burnett’s A Trial by Jury or crimprof Andrew Ferguson’s Why Jury Duty Matters.

Students interested in policing might begin with David Simon’s Homicide or Jill Leovy’s Ghettoside. The latter is a bit ‘much’ for me, and I don’t buy her conclusion in strong form, but it’s certainly worth a read.

Deviating for a moment from the criminal law—since we are all teachers—Ken Bain’s What the Best College Teachers Do does a brilliant job of assessing what makes for the best of our profession. (But as a warning, the other books in the ‘series’ are not nearly so good.)

In that same vein, students who plan to practice in a law firm might appreciate the wisdom of Mark Herrmann’s The Curmudgeon’s Guide to Practicing Law.

For something truly different, consider Mark Essig’s Edison & The Electric Chair. Would Thomas Edison promote electrocution by alternating current merely to gain support for his own supplies of direct current? Yes, he would.

Crim Movie Recommendations

I love to watch many sorts of films, and many a movie has some claim to being ‘about’ criminal law or procedure. But when I am asked for recommendations by students, or am looking for something for my own classroom, these are some of those I turn to most often. As always, please share any additions or thoughts in the comments.

Crimprofs don’t come any better than Jon Rapping, and Gideon’s Army is a terrific documentary featuring several then-public defenders affiliated with Rap’s Gideon’s Promise. Patrick McGuinness was another terrific lawyer, and he and his fellow public defender Ann Finnell run circles around an unjust prosecution in Murder on a Sunday Morning. Some similar classics are the Paradise Lost Trilogy (accentuated by a great Metallica soundtrack), The Staircase (this one was pathbreaking, and while a bit plodding at times, it nicely documents building a defense case—be sure to catch the 2004 version and then the Netflix additions), and The Thin Blue Line.

Unlike when I began teaching, students are no longer skeptical of false confessions and erroneous convictions. But Frontline’s Burden of Innocence remains a poignant film that includes interviews with Ron Williamson, the star of Grisham’s The Innocent Man (now itself a Netflix series). CourtTV’s The Interrogation of Michael Crowe is also really terrific, but it is now hard to find (let me know if you’d like to try and track down a copy, and don’t confuse this with the dramatization starring Ally Sheedy).

Folks are more split on whether it chronicles a false confession and/or erroneous conviction, but there is no doubt Netflix’s Making a Murderer rightly captured the world’s attention; the same could be said for HBO’s documentary on Adnan Syed. Equally deserving of attention is The 13th, which critically analyzes the racial injustice of the modern wars on crime, and 15 to Life: Kenneth’s Story, which poignantly demonstrates the cruelty of life without parole for juvenile offenders. Netflix also features The Confession Tapes, which are of interest because they highlight instances of potential false confessions that have led to convictions.

It is always fascinating to ponder what happens inside the jury room. My favorite remains the first time cameras captured an American jury’s deliberations, Frontline’s 1986 Inside the Jury Room. This one is increasingly difficult to find (again, let me know if you’d like help trying to track down a copy), but is really special. Another option is ABC News’ In the Jury Room.

If you want to summarize a lot of 1L criminal law—solicitation, conspiracy, and attempt (including impossible attempt), complicity, and even entrapment—students are sure to enjoy Netflix’s The Legend of Cocaine Island. (Where but in criminal law do you get characters like these? Positional entrapment, or sheer lunacy?) And, speaking of good characters, Woody Allen’s Crimes and Misdemeanors is quite a good film regarding how it might feel to get away with murder.

Sometimes a dramatization does as well as a documentary, and that is certainly true of these classics: Judgment at Nuremberg, To Kill a Mockingbird, 12 Angry Men, Witness for the Prosecution, Anatomy of a Murder, Breaker Morant, and The Ox-Bow Incident. A somewhat less well-known film that presents a fascinating criminal law hypothetical—but only after a great deal of buildup—is Let Him Have It. When it comes to a great watch you simply can’t beat HBO’s The Night Of; whether it sufficiently instructs about the criminal law, you be the judge. Finally, The Star Chamber gets a bit silly, but it presents some intriguing exclusionary rule hypotheticals.

If you want to convey a sense of what it means to live in a totalitarian surveillance state, The Lives of Others is a beautiful film. And if you want to lighten things up, there’s My Cousin Vinny.

Plea bargaining is understandably less often featured in film. An older documentary that continues to make some strong points is Frontline’s The Plea.

For those interested in policing there is The First 48 series, some of which are available on DVD, and of course the fictional, critically-acclaimed The Wire.

Finally, in the ‘slightly less great’ category, I’d include these: Requiem for Frank Lee Smith, The Trials of Darryl Hunt, After Innocence, and American Violet.

Enjoy the movies!

 

Presidential Pardons: Biden and Trump vs. Their Predecessors

        When Thanksgiving and the end of a presidential term align, it is not surprising to see an increase in discussions about the pardon power, prompted by the Official Pardoning of the White House Thanksgiving Turkey. In September, a great article from Rachel Barkow and Mark Osler urged President Biden to exercise the power, and a thoughtful article by Doug Berman earlier this week envisioned more regular clemency evaluations. One can see in the data that presidents tend to grant more pardon and clemency requests as they leave office.  

        President Biden’s potential pardons/clemency, as well as President-elect Trump’s (more on that below), inspired me to examine pardon and clemency over time, comparing modern trends to historical patterns. (Hereinafter, I will typically use “pardon” to mean the granting of a petition for pardon, clemency, commutation, reprieve, and remission, as different terms have been used at different points in history, and parsing the nuance is unnecessary for this post. “Amnesty,” or pardoning an entire class of people (for example, “draft dodgers”), is excluded for reasons explained below.) How does President Biden’s use or nonuse of the pen compare with previous presidents? Viewed historically, roughly how many pardons should we expect a president to grant? 

        I began by compiling data from various federal agencies. At the outset, I note that these data are imperfect because the government’s terminology and collection methodologies have changed a bit over time. But the information is reliable enough from 1900 onward to make some general observations. The primary purpose of this post is to provide some (hopefully interesting) data, not to provide an explanation for every historical nuance or anomaly in the context of the pardon power. I don’t group the pardons by categories like administration, world events, or changes to the criminal code; instead, I simply provide the data over time with a bit of commentary.

        I’ll first present the ten-year averages to offer insight into the use of the pardon power by decade: 

1900–1910	1911–1920	1921–1930	1931–1940	1941–1950	1951–1960
155	253	317	299	314	144

1961–1970	1971–1980	1981–1990	1991–2000	2001–2010	2011–2021
207	172	50	27	45	166

        The increase from 2011 to 2021 was the result of the unusually high number of clemency petitions that President Obama granted—around 1,700 in late 2016 and early 2017. Notably, data from the Office of the Pardon Attorney do not include President Biden’s pardons for simple marijuana possession or veterans who were convicted of engaging in gay sex under a military code because pardons by proclamation to a class of people (rather than by individual petition) are not included in DOJ data. I elected to include only pardons published in the Office of the Pardon Attorney’s data (the granting of individual petitions) because it would be impossible to quantify everyone amnestied in history. We can credit President Biden with amnesty of at least 8,500 individuals who are not reflected in these data, but we don’t know quantitatively what that looks like compared to other presidents who have granted amnesty. I focus on traditional pardons by presidents granting individual petitions.  

        Petition grants dropped rather remarkably in starting in the 1980s, falling well below 100 per year starting with the Reagan Administration in 1981. They don’t exceed 100 per year until President Clinton’s final year in office, then drop to under 50 per year during the George W. Bush Administration and during most of the Obama Administration:

        We might expect to see an increase in petition grants over time based on at least two factors: (1) an increase in the population of the United States and assumed concomitant increases in the prison population, and (2) an increase in convictions as a result of the federalization of crime over time and tough-on-crime policies. But as Rachel Barkow has written, tough on crime apparently entails tough on pardons. Charles Shanor and Marc Miller have also commented on low pardon-petition grants relative to the increase in prison population. According to Margaret Colgate Love, the decrease is also attributable to structural changes in the late 1970s placing pardon recommendations in the hands of the same DOJ officials who are responsible for setting tough-on-crime prosecution policy.  

        The following graph is illustrative of these points. It compares the U.S. population, new inmates received in federal custody, and pardons over time (the former two categories are scaled to fit reasonably within one graph):

We see a sharp increase in new incarcerations beginning in the late 1980s and early 1990s, alongside steady population growth, but a notable decrease in the granting of pardons. Below is the same information focused on inmates received and pardons: (I concluded that analyzing inmates admitted was superior to analyzing overall prison population, but the general observations would be similar.)

        The overall average number of petition grants (again, including clemency) from 1900 to today is around 180 per year. But that is a static figure and does not take into account modern incarceration rates. Before 1980 the grant rate averaged around 4.5% of inmates admitted. If modern presidents adhered to their predecessors' rate, we would probably see around 2,500 pardon/clemency petitions granted per year. By either metric, President Biden—and all modern presidents—fall well short. (We might be inclined to give President Biden credit for the amnesty described above, but recall that amnesty by prior presidents was also excluded from these data.) Finding the exact reasons modern presidents seem to grant fewer petitions is beyond the scope of this post, but feel free to explore that in the comments or via email. I can think of a myriad of reasons to justify a number higher or lower than 2,500 per year, but it's an interesting starting place.

        Another reason I was motivated to explore this issue was President-elect Trump’s promise to exercise his pardon power on behalf of individuals associated with the January 6, 2021, Capitol Breach. I have spoken with D.D.C. judges and practitioners working on those cases, and I reviewed the sentencing files for hundreds of those cases for a law-review article that will be published in the next few weeks, so I know a thing or two about those cases and offenders. Most of the offenders (67%) were convicted of misdemeanors, and most of those have likely already served any period of incarceration. Historically speaking, President-elect Trump’s pardons would be somewhat unusual in that they wouldn’t be relieving a death sentence or reducing a long period of incarceration (for example, George Washington spared John Mitchell and Philip Weigel a potential death sentence for treason after the Whiskey Rebellion), they would be eliminating probation or supervised release among mostly low-level offenders (or potentially restoring rights). I don’t mean to diminish the misdemeanor sentences or the burdens of supervised release, but there is less at stake than what pardonees like Washington’s were spared.   

         So which offenders or offenses will President-elect Trump pardon? Misdemeanors? Nonviolent offenders? All offenders—even violent ones who trained for months in paramilitary combat tactics, stormed the Capitol in combat gear intending to thwart the Electoral Count, and assaulted multiple police officers?  

        I suspect that if you asked an average, informed citizen, they would agree with Alexander Hamilton—that the pardon power is for rare cases of “unfortunate guilt” where a flaw exists somewhere in the system or conviction. Over time, people have probably come to expect a politically motivated pardon or two in every administration. But the widespread use of the power based not on an analysis of the merits, but for seemingly tribal reasons (an apparent continuation of the theme, “crimes committed in my name are OK”), will only further undermine the sense of “justice” in the “system.”  

        I expect that this sense of delegitimization will arise among at least some of Trump’s pardonees themselves—in particular, those convicted of serious or violent offenses. A vast majority of January 6 offenders admitted their unlawful conduct and pleaded guilty, with many of them apologizing and acknowledging how wrong they were. Their slates may soon be wiped clean long before serving their full sentence, based not on a flaw in the system or conviction, but on tribal pardons. They would understandably delight in being released, but even beneficiaries of such pardons may feel that the system is unreliable because the rules are applied inconsistently. The exchanged glances that January 6 pardonees will share with their cellmates as they leave them behind will be telling. 

        When I recreate the above graphs in five years, we will probably see at least one new historic bump like the one we saw during the last few months of the Obama Administration (although we might not if President Trump proceeds by proclamation instead of by granting petitions). Could we see more? It seems reasonable to demand so from both men. Historically, we would expect them to grant around 2,500 petitions per year. This could be an interesting proxy for the Executive’s historical perception of the rate of flaws in the system, around 4.5% of new convictions containing “unfortunate guilt.” 

        President-elect Trump’s newly discovered liberal use of the pardon power should extend to petitioners who objectively deserve it. I suspect that he has the political capital to spend, and it would make his January 6 pardons much more palatable. President Biden should also refill his pen, for among other reasons (as he has essentially admitted), his tough-on-crime policies from the 1990s are the reason some of these potential pardonees were even incarcerated.  

        The power to grant pardon and clemency petitions should be about reaffirming the integrity of the system. If history is a guide, Presidents Biden and Trump would do well to exercise it wisely rather than sparingly. 

 

-Sam J. Merchant

Call for nominations to join the AALS Criminal Procedure Section (Also, Hello!)

Thank you to Stephen for taking the lead in resurrecting this terrific blog, and for welcoming me to be a contributor. This is sure to be a lot of fun!

Speaking of fun, I hope readers of the blog will consider applying to help lead the AALS Criminal Procedure Section next year. I'm the Chair of the Section until the board turns over in January, and we are in need of fresh leadership. Specifically, we have openings for Chair-Elect, Secretary, Membership Secretary, and At-Large Executive Committee members. Most of these positions entail one-year commitments. This is a neat opportunity to get involved, give back, and work together with some truly first-rate humans. See below for additional information, from the email I circulated to Section members earlier today. (And please note that, to apply for a leadership position, you first need to be a member of the AALS Criminal Procedure Section. If you aren't already a member, you can sign up, and that obstacle will then be removed!)

 

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Hello Criminal Procedure Section Members,

I'm excited to announce the opening of nominations for leadership positions within the Section. Serving in one of these roles is an excellent opportunity to work with an inspirational group to shape the direction of our relatively new Section. I encourage everyone to consider nominating themselves or a fellow member. 

Nominations should be emailed to [email protected] by Friday December 6, 2024. Nominations should include a C.V. and a statement of interest of less than 250 words. The Section will hold elections from amongst the nominations in advance of the AALS annual meeting in January. All positions are for one-year terms, with some ascending to other leadership positions as outlined below. We are seeking to fill the following positions: 

• Chair-Elect: The Chair-Elect will perform duties as determined by the chair, including but not limited to developing programming for the AALS annual meeting and directing sub-committee chairs and members as necessary. The Chair-Elect shall ascend to the position of Chair at the end of their one-year term. 
• Secretary: The Secretary is responsible for maintaining meeting minutes for the Executive Committee, overseeing the notice of meetings, and fulfilling other duties as required by the Chair. The Secretary shall ascend to the position of Chair-Elect at the end of their one-year term.
• Mentorship Secretary: The Mentorship Secretary will oversee mentorship programming throughout the section, including the annual junior-senior conference held by the section. The mentorship secretary may serve a one-year term or a longer term, at the Chair's discretion.
• Executive Committee Member: Executive Committee Members advise the Chair, Chair-Elect, and Secretary, participate in sub-committee work, and may undertake votes regarding section business. 

If you have any questions about the roles or the nomination process, please feel free to reach out to me at [email protected]. We look forward to working with our new leaders to advance the Criminal Procedure Section!

Best,
Justin Murray