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?

Classroom Generative AI Hallucinations

In my textbook, I use the classic case of People v. Bisset, 92 N.E. 949 (Ill. 1910), in introducing common-law voluntary manslaughter.  It’s a colorful story of two plainclothes cops in a Chicago saloon that begins (oddly) friendly and ends (tragically) deadly.  Things begin to go south when one of the officers seizes a patron “over one of his pockets, and the two of them circle[ ] and scuffle[ ] across the room.  It is not pretended by any of the witnesses that they heard all that was said between them, but it is clear that [the officer] said to [the patron]: ‘I want what you have in your pocket; you know what I mean; I eat those things.’ ”

Based upon the context, I’ve always considered the best reading to be that the officer had seen the patron was carrying a gun, and “I eat those things” was ‘tough guy’ speech for demanding the weapon.  Like many of the great cases we use in the classroom, the short speech is a delightful gem that can provoke useful tangents on matters such as witness recollection and scene recreation, and students and I always share a laugh over the words.

But this year introduced something new.  A student loudly proclaimed a different, very particular factual cause: the item demanded was a potato.  Yup, not a gun, but that starchy tuberous wonder-of-nature.  I had never heard such claim before, and it doesn’t seem to fit the case, so I expressed suprise but interest.  The source of the claim?  According to the student, ChatGPT.  Later, the student followed up, admitting it appeared a hallucination.

After class, I naturally went right to the (ever-changing) source, and it gave a better explanation:

SEH: In the case of People v. Bisset, 92 N.E. 949 (Ill. 1910), what did the cop mean by, “I eat those things.”

ChatGPT: In People v. Bisset, 92 N.E. 949 (Ill. 1910), the phrase “I eat those things” was reportedly said by a police officer in response to a suspect’s resistance or aggressive behavior.  This was likely a colloquial way of expressing that the officer was experienced in handling such situations and was unfazed by the suspect’s actions.  Essentially, it suggested confidence and a lack of intimidation—implying that dealing with resistance was routine for him.

When I followed up with, “Somebody thought it was a potato,” ChatGPT did a predicably nice job:

ChatGPT: That’s an interesting take!  If someone thought the phrase “I eat those things” referred to a literal potato, they were likely interpreting it too literally.  The officer wasn’t talking about food—he was using a figurative expression, likely meaning that he was accustomed to handling situations like the one he was in.
But now I’m curious—where did you hear that someone thought it was a potato?

Ah, the delights of apparent machine consciousness.  Curious, it is.  Well, of course I obliged: “It was in my law school class.”

ChatGPT: That’s hilarious!  Law school discussions can take some wild turns, but imagining someone genuinely thinking the officer was talking about a potato is next-level.  Did the professor let it slide, or did they pause the class to unpack that interpretation?

SEH: I’m the professor, so I indeed did not let it slide...and the student claimed he got the answer from you!

ChatGPT: Oh wow—busted!  I can assure you I never told anyone that the cop in People v. Bisset was talking about a potato.  But I have to admire the sheer creativity (or audacity) of that student’s defense.
Did they double down on it, or did they eventually admit they might have, uh, misinterpreted things?

SEH: Oh, they definitely stuck to blaming you.

ChatGPT: I respect the commitment, but I must protest my innocence!  No potatoes were involved in my analysis of People v. Bisset.
That said, if this student can argue in court as confidently as they defended their potato theory, they might have a future as a litigator.  Did they at least try to justify their interpretation, or was it just a desperate attempt to shift the blame?

SEH: Ha!  The latter.

ChatGPT: Classic move—when in doubt, blame the AI.  I admire the hustle, but I’m afraid I can’t take the fall for this one.  No rogue potato theories originated here!
Next time, you should make them write a full legal analysis on The Role of Potatoes in Early 20th Century Jurisprudence.  See how far they’re willing to take it.

SEH: Clever; but how can you actually know you didn’t generate the theory?  [It of course can’t, including because contractual models can prevent feedback, etcetera.]

ChatGPT: Fair question! Technically, I don’t have perfect recall of everything I’ve ever said (OpenAI doesn’t give me memory), so I can’t guarantee that I didn’t once go on some bizarre potato-related tangent.  However, I’m pretty confident for two reasons:
1. It makes no sense – I analyze legal cases based on precedent, logic, and historical context. Unless there was some wildly obscure potato-related legal doctrine at play (which, to my knowledge, there wasn’t), I wouldn’t have had any reason to generate that theory.
2.The phrase in context – “I eat those things” is a pretty clear idiomatic expression. It would be an extraordinary leap for me to misinterpret it as a literal reference to food—especially in a legal case.
That said, I love that the student thought blaming me was their best defense.  It’s almost like a real-life Crumbling Infrastructure of the Internet exam question: “Your AI legal research tool gives you a wildly incorrect case interpretation.  Discuss the ethical and practical implications of relying on AI in legal practice.”
So—what’s the verdict, professor?  Do I get acquitted, or am I stuck with a lifetime sentence as the People v. Bisset Potato Conspirator?

I’ll let it go.  I for one welcome our new chat overlords.

Have AI-hallucinations (or at least student claims thereof) begun to enlighten your classrooms?

Seinfeld on Manslaughter

From the Crimprof Multipedia, for teaching purposes...

Category
Homicide

Tags
extreme emotional disturbance, homicide, manslaughter, mitigation, provocation, voluntary manslaughter

Post
In this classically-Seinfeldian introduction to Episode 18, Season 8 (“The Nap“) of Seinfeld, George Costanza reflects on the term “manslaughter.”

Video Link

Unsurprisingly, George’s statements aren’t quite right to the criminal law, as manslaughter is a form of criminal homicide, not a “form of murder.” But not only is the clip quick and funny, it can help make an important point that I often have to prod students to see when we study mitigation of murder by provocation/extreme mental or emotional disturbance. It is not as if voluntary manslaughter is an award for good behavior—quite to the contrary, it is a serious (albeit not the single-most-serious) crime.

 

Has Trump Second Affected the Crim Law Classroom?

I realize we don’t exactly have a robust comment stream on the blog (yet!), but I’m curious how the change in administrations has affected the law school classroom around the country.  Because every group dynamic can be so different, it seems foolhardy to make too much of any single, few-week experience.  But for me, while I am enjoying two great sections of first year criminal law, I notice a strange (to me) tendency of students to turn towards one another, non-verbally exchanging…I’m not sure what…at any mention of a currently-societally controversial topic.  Discomfort?  Annoyance?  Bemusement?

I can only recall that I’ve mentioned Trump once directly, and it was when we were discussing why the criminal law requires an act, as opposed to punishing mere thought.  Among the litany of reasons I was running through was that we of course have a robust freedom of speech, and ‘a person (unless he is Donald Trump) of course has to think before he can speak.’  To me, that was a politically neutral—if not very funny—joke: it’s about “covfefe” and “I have the best words.”  But it seemed to go over like a rock, even as I tried to point back to those events.  Because 2025 1Ls tend not to remember those 2017 things?  That may be it, at least in part…I grow old.  Or perhaps it’s just too hard to joke about politics these days.

Oh, and there was a second direct reference—I was discussing strict liability under the Migratory Bird Treaty Act, and Captain Sully’s Miracle on the Hudson (that he would be an MBTA criminal for killing those Canada Geese), and said something like, ‘That was too much for the first Trump administration...’  (Because his Department of the Interior issued a memorandum inserting a mens rea.)  Once again, that seemed a trigger for this new student-to-student reaction, despite it having next to nothing to do with Trump controversies.  Maybe any mention of the name?!

And, again, it’s not merely that “Trump” seems a trigger word...it seems more like any topic that could be touching the current political hot spots.  I wonder if in some geographic areas students tend to immediately assume any law prof mention is going to be hostile?  While in others students might even have that same immediate assumption but therefore be eager to speak on the issue?  I certainly don’t know...but am curious.

(N.B. I couldn’t help adding captions to the above photo…demonstrating that perhaps it is indeed my sense of humor at fault in the classroom as well!)

Request for Submissions - Harvard/Stanford/Yale Junior Faculty Forum

On behalf of Rebecca Tushnet, this request for submissions will be of interest to some readers:

Request for Submissions
Harvard/Stanford/Yale Junior Faculty Forum
June 2-3, 2025, Harvard Law School

Harvard, Stanford, and Yale Law Schools are soliciting submissions for the 2025 Harvard/Stanford/Yale Junior Faculty Forum, to be held at Harvard Law School on June 2-3, 2025. Twelve to twenty junior scholars (with one to seven years in teaching) will be chosen, through a double-blind selection process, to present their work at the Forum. A senior scholar will comment on each paper. The audience will include the participating junior faculty, senior faculty from the host institutions, and invited guests. The goal of the Forum is to promote in-depth discussion about particular papers and more general reflections on broader methodological issues, as well as to foster a stronger sense of community among American legal scholars, particularly by strengthening ties between new and veteran professors.

TOPICS: Each year the Forum invites submissions on selected topics in public and private law, legal theory, and law and humanities topics, alternating loosely between public law and humanities subjects in one year, and private law and dispute resolution in the next. For the upcoming 2025 meeting, the topics will cover these areas of the law:
Administrative Law
Antidiscrimination Law and Theory
Constitutional Law—theoretical foundations
Constitutional Law—historical foundations
Criminal Law
Critical Legal Studies
Environmental Law
Family Law
Jurisprudence and Philosophy
Law and Humanities
Legislation and Statutory Interpretation
Public International Law
Workplace Law and Social Welfare Policy

A jury of accomplished scholars will choose the papers to be presented. There is no publication commitment. Harvard Law School will pay presenters’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: Authors who teach law in the U.S. in a tenured or tenure-track position as of the submission deadline (February 28, 2025) and have not been teaching at either of those ranks for a total of more than seven years are eligible to submit their work. American citizens or permanent residents teaching abroad are also eligible provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years and that they earned their last degree after 2015. We accept jointly authored submissions, but each of the coauthors must be individually eligible to participate in the Forum. Papers that will be published prior to the Forum are not eligible. There is no limit on the number of submissions by any individual author. Faculty from Harvard, Stanford, and Yale Law Schools are not eligible.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to Rebecca Tushnet at [email protected] with the subject line “Junior Faculty Forum.” The deadline for submissions is February 28, 2025. Remove all references to the author(s) in the paper. Please include in the text of the email your name, the title of your paper, your contact email and address through June 2025, and under which topic your paper falls. Each paper may only be considered under one topic. Any questions about the submission procedure should be directed to Rebecca Tushnet.

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to Christine Jolls ([email protected]) or Yair Listokin ([email protected]) at Yale Law School, Rebecca Tushnet ([email protected]) at Harvard Law School, or Norman Spaulding ([email protected]) at Stanford Law School.

Christine Jolls
Yair Listokin
Rebecca Tushnet
Norman Spaulding

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!

---

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

 

 

New York (Predictably) Overcharging Luigi Mangione – Who Needs a Rule of Law?

A senseless act of bloodshed.  Followed by a senseless act of State lawlessness.  <Sigh>  It isn’t that people would be better if the government were…it’s that the government would simply be less bad.

New York law, like the Model Penal Code, recognizes that premeditation and deliberation (including “lying in wait”) are inapposite when it comes to murder.  Sometimes, planning makes a crime worse.  Sometimes, by contrast, it makes it less so—euthanasia is typically the paradigm of a premeditated and deliberate killing, yet it is far from being either the most depraved (deontologically) or the most dangerous (consequentially).  Traditional first-degree murder thus accepted those elements only for reasons of historic State-protective anomaly; New York law hewed back to that original intent by, for example, including the murders of judges as being first degree.

So, Luigi Mangione purposely killing Brian Thompson would be second-degree murder.  There is no special protection for CEOs in American law.  New York’s decision to make a mockery of that law by alleging the killing “terrorism” will surprise no one who follows American criminal law.  Overcharging is rampant.  But it ought to sadden anybody who cares about justice.  When the State doesn’t respect law, it is much harder to sell that anybody should.  And that, of course, is precisely the opposite of the message appropriate to these events.

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

Chilling Abortion Healthcare

Following the Court’s decision in Dobbs, a number of pregnant people have been unable to receive necessary medical care, including abortions, resulting in tragic consequences. For example, Kate Cox, whose story was reported widely, received the terrible news of a pregnancy complication: the fetus had been diagnosed with Trisomy 18, a condition fatal for the fetus. Cox sought an abortion on her doctor’s advice that would best protect her health and future fertility. She sought a court order allowing her to get an abortion notwithstanding a Texas law prohibiting abortions in nearly all circumstances, which was granted by the trial court. The Texas AG appealed that determination. Ultimately, due to the passage of time and danger to her health, Cox left the state to obtain an abortion. The Texas Supreme Court ultimately determined that Cox’s case didn’t fall within the statutory exception to the ban, which permits abortions to preserve the life of the mother or to avoid “substantial impairment of major bodily function.”

Many tragic cases have demonstrated the harm of denying necessary medical care to pregnant women: Amber Thurman, Josseli Barnica, Candi Miller,  Nevaeh Crain all died after being unable to access lifesaving treatment.  These tragedies are a direct result of the abortion bans that have been promulgated after Dobbs overturned the Roe–Casey framework, allowing states to freely regulate, and prohibit, abortion. Importantly, Dobbs negated the constitutional significance of reproductive autonomy, holding that this was not a constitutional right that had to be accounted for in abortion regulation. In light of that, state abortion bans—like in Texas and Georgia—principally balance the interests of fetal life and maternal health. These statutes make explicit exceptions for the provision of abortion healthcare when the life of the mother is threatened. Under any reasonable interpretation, these statutes should have allowed for care in all of these cases. Why then did these women not receive the due care?

The answer is that their medical providers were chilled from providing them such care. Though the record is not always clear, in many of these cases, these women had sought medical help in the face of life-threatening conditions; however, their healthcare providers were waiting for the patients’ conditions to become sufficiently life-threatening to avoid liability under the statutory regimes.

As a result, there has been a focus on the statutory regimes themselves, including how the statutes could be clearer to ensure that healthcare providers understand when they can legally provide healthcare including whether revisions to the statutes are necessary to ensure an appropriate balance of interests between maternal health and fetal life.

I suggest that this seemingly exclusive attention to the legal language itself ignores an important factor: the legal officials enforcing the statutory bans. There are a number of anti-abortion extremists out in the world—who would categorically ban all abortion healthcare, no exceptions. Some of those extremists have arisen to positions of legal power, with the ability to enforce their desired categorical bans.

Aren’t such legal officials constrained by the statutes—which explicitly allow for life-saving care? Unfortunately, no. For example, the Texas and Georgia bans use terms like “life-threatening condition” and “medical emergency” that are inherently vague. It is unclear how serious a health condition must be to legally satisfy the statutory requirement. Indeed, Greer Donley and Caroline Kelly comprehensively make this case. As a result, legal officials have a great deal of discretion in enforcing these abortion bans. And if they are anti-abortion extremists, they can pursue a categorical ban through oppressive enforcement.

The presence of these anti-abortion extremists has important implications for regulating abortion, and this example teaches us much about regulating generally. One important lesson is about chilling costs.

Chilling occurs when a law deters individuals from engaging in potentially beneficial conduct that does not cause the evil that the law was created to address. The chilling cost is the summation of the potentially beneficial conduct that is deterred.

In general, we calculate the chilling cost by looking at the relevant statutes—inquiring about the probability that the statutory language may render liable some beneficial conduct and, as a result, deter such conduct. But abortion regulation exposes another contributor to such chilling cost: the presence of extremist legal officials. In cases where extremism is afoot, it is not enough to consider what conduct may be enveloped in a statute’s reasonable interpretations. In addition, one must consider the likelihood that one’s case may be overseen by an extremist legal official—because such officials will use their discretion to pursue enforcement actions.

There’s much more to say, and I say some of it here, in this draft paper. (Early draft, so comments very welcome!)

One question that we can reasonably ask is this: Assuming arguendo the balance of interests in the statutory abortion bans—namely, that the relevant considerations are maternal health and fetal life (and not reproductive freedom)—how can we regulate in a way that would actually protect maternal health? How can we draft the statutes to make that crystal clear?

I argue that, in light of the inevitable discretion conferred upon legal officials and the substantial number of anti-abortion extremists, there is no way to regulate abortion that appropriately safeguards maternal health.

Guest Post: Kolber on Punishment for the Greater Good

The following post was written by our colleague Adam Kolber about his new book, Punishment for the Greater Good, which is available here (discount code ALAUTHC4) or through request from a library. (He also has a four-minute animated book teaser.) I am very pleased to highlight his work; if you have written a book and would like the same, please let me know!

More than ten million people are incarcerated around the world, even though punishment theorists have struggled for centuries to morally justify incarceration and other punishment practices. Efforts so far are incomplete, referencing parts of theories that have yet to be fleshed out. What can we say about the justification of incarceration today?

Retributivists claim that people deserve punishment because of their wrongdoing. Punishment can be morally justified, they say, provided it is proportional to wrongdoing. Consequentialists, by contrast, claim that if punishments like incarceration are justified, they are justified because they lead to good consequences, such as crime prevention and offender rehabilitation, that more than make up for the suffering and other bad consequences they inevitably cause. In my new book, Punishment for the Greater Good (Oxford University Press), I argue that a “pure consequentialist” approach (one that denies the value of deserved punishment) is better than the “standard retributivist” approach (which justifies punishment based on moral desert) if we seek to address incarceration in the here and now.

In the book, I identify several problems with standard retributivism. Here, I’ll mention one: Standard retributivists make proportional punishment central to their view but haven’t successfully explained how to determine when a punishment is proportional. They suffer from what I call the quantum problem: In order to actually punish someone, you need to justify some quantum of punishment. Retributivists haven’t done that, and I don’t see how they ever will.

Retributivists can’t just rely on their intuitions about proportionality. In an 1883 case, a Native American, named Crow Dog, killed another Native American. Through a tribal justice process, he was required to deliver $600, eight horses, and a blanket as restitution to the victim’s family. The U.S. thought the punishment inadequate and sought the death penalty. Two criminal legal systems came up with radically different solutions. If retributivists use their intuitions to assume that any particular amount of incarceration is justified for even a serious crime like homicide, then they haven’t justified incarceration; they have simply assumed what they need to prove (and what carceral abolitionists can properly demand of them).

Some scholars say that we just haven’t figured out proportionality yet. But while this is never a satisfying response, it is particularly inadequate when we look at punishment, as I do in the book, from a here-and-now perspective. We can’t incarcerate someone today based on a promise to deliver an adequate theory of punishment sometime in the future. Nevertheless, thousands of law review articles and legal cases simply assume that proportional punishment is a sufficiently clear and coherent concept to use when we lock people up.

Consequentialists, by contrast, don’t give proportionality a primary role. They seek to punish when doing so has net benefits. Since both crime victims and incarcerated perpetrators suffer, consequentialists generally seek to reduce total crime-related suffering. While many people overestimate the ability of incarceration to prevent crime (especially its marginal deterrence), there is little doubt that it deters an enormous amount of crime in an absolute sense and prevents the most dangerous offenders from regularly harming others. When incarceration is not a good tool for public safety, consequentialists oppose it and seek better tools. They don’t make people suffer just for the sake of past bad conduct.

Many find consequentialist punishment unappealing because it could lead, under some imaginable circumstances, to the punishment of the innocent, contrary to a firm deontological constraint that prohibits knowingly punishing in excess of desert. But reasonable retributivists will also punish the innocent, at least under sufficiently catastrophic conditions, as I argue in chapter 4 of the book: the dispute largely comes down to setting the threshold at which punishment of the innocent is permissible, and consequentialists plausibly have the better end of the dispute.

Even if we could perfectly assess proportionality, retributivist proportionality is unappealingly counterintuitive. Consider two equally blameworthy offenders named Sensitive and Insensitive. They are alike in all pertinent respects except for the amount they suffer in prison. Sensitive suffers tremendously, while Insensitive suffers too but manages to cope and make good friends. If these equally blameworthy offenders spend the same three years in prison, I claim that they have not been punished equally in any sense that matters from a moral perspective. Moreover, if Insensitive’s sentence was proportional, then retributivists need to explain what justifies the additional suffering we knowingly impose on Sensitive.

We could try to punish in ways that take sensitivities into account. But doing so leads to counterintuitive results as well. Suppose Sensitive suffers so much because, prior to prison, he lived a life of luxury. Few would welcome punishing Sensitive for a shorter duration (or in better conditions) to accommodate his wealth-induced sensitivity. Nevertheless, it’s hard to see why retributivists can knowingly make Sensitive suffer more than Insensitive when they are equally blameworthy. Consequentialists must take suffering into account too. But they’re not specifically committed to proportional punishment and so needn’t reach the particular counterintuitive results retributivists face here.

The affirmative case for consequentialism arises, at least in part, from its comparative completeness. Armed with a way of valuing what is good and bad, pure consequentialism is quite complete. While debates about how to value consequences rages on, standard retributivists face nearly-identical challenges. In order to measure wrongdoing, for example, most retributivists consider the amount of harm an offender caused. Such measurements require them to decide whether to treat harms as bad experiences, dissatisfied preferences, or something else entirely. Since I conduct a comparative analysis of pure consequentialism and standard retributivism, I spend the better part of a chapter arguing that, if anything, pure consequentialism raises more manageable questions about value than standard retributivism does because pure consequentialists don’t assign intrinsic value to moral desert and needn’t wrestle with its associated mysteries.

Once consequentialists have determined the value of various consequences and their best probabilistic assessment of relevant empirical facts, they can tell us how to behave in a wide variety of circumstances. Importantly, they can say quite a bit about whether an instance or practice of incarceration is likely better or worse from a moral perspective than some alternative. The empirical issues are extraordinarily complicated, but at least we know how to address them. (If a patient must choose between two forms of cancer treatment and the scientific evidence is conflicting, we can still do our best to pick one using relatively well-agreed upon methods of analysis.) With numerous choices, we may not know which option will lead to the greatest good, but we can often make choices for the greater good. It’s hard to ask for more in the here and now.

Imagine a car race with two competitors. If one car is missing too many parts to start, even its shabby competitor is superior. Similarly, if standard retributivism is too incomplete to yield verdicts about incarceration, then pure consequentialism is superior in the here and now, even if it has its own blemishes. Hence, my claim in the book is one of superiority, not adequacy. I claim that pure consequentialism is superior to standard retributivism, not that pure consequentialism is necessarily an adequate theory to adopt in the here and now. An adequacy claim would require a much deeper defense of consequentialism than I provide in a relatively short book and would require us to look at many other approaches to punishment than the two I focus on. Still, to the extent that I address popular forms of consequentialism and retributivism, if I succeed in arguing that pure consequentialism is superior to standard retributivism, I have provided you with at least some reason to increase your confidence in pure consequentialism’s adequacy as an approach to punishment in the here and now.

This post is adapted from a longer version at Marcus Arvan’s “New Work in Philosophy” substack.

Multipedia Post: Walgreens Security Guard Kills

Since 2009, I have shared multimedia teaching content at the Crimprof Multipedia; going forward, when I post new content there, I’ll try and also make a note of it here.  I will not, however, make an entire duplicate library of the multimedia content.  So, if you are interested in a particular post, you can go and grab it there.

https://crimprof.com/criminal-law/defenses/walgreens-security-guard-kills/

Category

Defenses, Pretrial

Tags

charging decision, common law, deadly force, defense of property, defenses, discretion, firearms, homicide, justification of law enforcement, murder, non-homicide crime, pretrial, prosecution role, self-defense, theft

Post

In April of 2023, amidst strong disagreement over how to handle retail theft in California, 33-year-old private security guard Michael Anthony was on shift at a Walgreens in San Francisco when he saw someone slip an item into a bag. A confrontation ensued, witnessed by bystanders and captured on CCTV, resulting in Anthony shooting (a single time) and killing 24-year-old Banko Brown. Here’s the video:

<Insert>

Anthony easily satisfies the requirements of some form of criminal homicide, including murder—for example, intending to cause serious bodily injury, he caused the death of another human being. And of course defense of property never permits deadly force. So, it is a case for addressing the defense of law enforcement and self-defense.

As for law enforcement, the common law was of course generous and applied to us all, so the issues include whether and how California has narrowed that doctrine and whether it was reasonable to believe this deadly force necessary to arrest a felon. Petty retail theft would not begin as a felony, but did this become a robbery? If you teach like me, you won’t be as concerned with precisely how California has modified the doctrine, but rather with working through the types of changes commonly made by various states.

As for self-defense, could guard Anthony reasonably fear imminent serious bodily injury or death at the time he shoots? He claims Brown had repeatedly threatened to stab him, and that he thought “I was going to be stabbed.” Bystanders did not hear those threats, and police found no knife.

Beyond the substantive criminal law, it is a case for discussing prosecutorial discretion, with all the questions that naturally raises: Why do we permit prosecutors to make these choices? Is there a realistic better alternative? In this case, the prosecutor both released a written report and sat down for an interview regarding her charging decision:

<Insert>

As of September 2024, no charges were filed and none were planned.

Another interesting topic might be the different bystander reactions, including a seeming lack thereof. What might these say about things?

Constitution Project Study IDs Flaws in Public Defense System

The American legal system guarantees "equal justice under law." Those words, carved in stone on the facade of the Supreme Court, are a constitutional promise that everyone will have the same opportunity for justice.

But a new report by the bipartisan Constitution Project says the United States has broken that promise for poor people accused of crimes. The report is the most in-depth study of indigent defense in decades.

Continue reading

Courts Look to Fines and Fees in Tough Budget Times

Valerie Gainous paid her debt to society, but almost went to jail because of a debt to Florida’s courts.

In 1996, she was convicted of writing bad checks; she paid restitution, performed community service and thought she was finished with the criminal justice system. Earlier this year, however, she received a letter from Collections Court telling her that she was once again facing jail time — this time, for failing to pay $240 in leftover court fees and fines, which she says she cannot afford.

Ms. Gainous has been caught up in her state’s exceptionally aggressive system to collect the court fines and fees that keep its judiciary system working. Judges themselves dun citizens who have fallen behind in their payments, but unlike other creditors, they can throw debtors in jail — and they do, by the thousands.

Continue reading

Supreme Court Rejects Peremptory Challenge Claim

The U.S. Supreme Court today decided Rivera v. Illinois, No. 07-9995, unanimously rejecting the defendant's claim that the state trial court's erroneous denial of his peremptory challenge required a new trial. Justice Ginsburg delivered the opinion of the Court, and the introduction to her opinion summarizes the Court's holding:

This case concerns the consequences of a state trial court's erroneous denial of a defendant's peremptory challenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant's conviction?

Following a jury trial in an Illinois state court, defendant-petitioner Michael Rivera was convicted of first-degree murder and sentenced to a prison term of 85 years. On appeal, Rivera challenged the trial court's rejection of his peremptory challenge to venire member Deloris Gomez. Gomez sat on Rivera's jury and indeed served as the jury's foreperson. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him. The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera's conviction. We affirm the judgment of the Illinois Supreme Court.

The right to exercise peremptory challenges in state court is determined by state law. This Court has "long recognized" that "peremptory challenges are not of federal constitutional dimension." United States v. Martinez-Salazar, 528 U. S. 304, 311 (2000). States may withhold peremptory challenges "altogether without impairing the constitutional guarantee of an impartial jury and a fair trial." Georgia v. McCollum, 505 U. S. 42, 57 (1992). Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly, we have no cause to disturb the Illinois Supreme Court's determination that, in the circumstances Rivera's case presents, the trial court's error did not warrant reversal of his conviction.

[Brooks Holland]

Liptak Previews Strip Search Case

Savana Redding still remembers the clothes she had on — black stretch pants with butterfly patches and a pink T-shirt — the day school officials here forced her to strip six years ago. She was 13 and in eighth grade.

An assistant principal, enforcing the school’s antidrug policies, suspected her of having brought prescription-strength ibuprofen pills to school. One of the pills is as strong as two Advils.

The search by two female school employees was methodical and humiliating, Ms. Redding said. After she had stripped to her underwear, “they asked me to pull out my bra and move it from side to side,” she said. “They made me open my legs and pull out my underwear.”

Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court, which will hear arguments on April 21.

The case will require the justices to consider the thorny question of just how much leeway school officials should have in policing zero-tolerance policies for drugs and violence, and the court is likely to provide important guidance to schools around the nation.

Continue reading

New Phenomenon: "Google Mistrials?"

 Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Continue reading

Heller "Firing Blanks?"

About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.

So far, Heller is firing blanks.

Continue reading