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Douglas Berman

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In this post on Friday, I mentioned that I consider the statutory changes to the so-called compassionate release provisions in federal law to the “sleeper provisions” of the FIRST STEP Act.  This four-page FAMM document, titled “Compassionate Release and the First Step Act: Then and Now,” reviews some basics of the changes made by the FIRST STEP Act, and on page 3 one finds this account of what I think is a very…
The title of this post is the headline of this new Hill commentary authored by David Oscar Markus. Here are excerpts: A jury has spoken on Paul Manafort. He was found guilty, and he should be punished. But his reported sentencing guideline range of 19.5-24.5 years is a good example of how our criminal justice system has lost its way. Once, when trials were common, our system was the envy of the world. Now, trials…
The question in the title of this post is prompted by an interesting on-going story out of Norfolk, Virginia which I have blogged about over here at my marijuana blog.  This recent local article reports on these particulars: The judges on the city’s top court have decided to block Norfolk’s chief prosecutor from essentially decriminalizing marijuana possession, a setback he’s thinking about appealing to the state Supreme Court. On Tuesday, prosecutors under Commonwealth’s Attorney Greg…
The title of this post is the headline of this interesting newspaper article from the North Star State focusing on a part of modern sentencing systems that merit a lot more attention than it usually gets.  Here is how the piece gets started: Since getting clean, Jennifer Schroeder went on to manage the sober living house that nurtured her after a year in jail.  She became the first in her family to graduate from college…
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I mentioned in this post a few weeks ago that the Wyoming House of Representatives had voted to repeal the state’s death penalty.  This past week the legislative repeal effort died, as reported in this local article headlined “Wyoming Senate defeats death penalty repeal bill.”  And a notable quote from a particular senator concerning her reasons for voting against repeal has garnered some extra attention.  Here are some particulars: The Wyoming Senate defeated a bill…
Last year, I flagged in this post the notable appellate ups and downs surrounding the sentencing and resentencing of actress Amy Locane following her conviction for killing a 60-year-old woman in a 2010 car crash while driving with a blood-alcohol way over the legal limit.  This local media piece reports on the latest sentencing in the case under the headline “‘Melrose Place’ actress sentenced again for fatal drunk driving crash, but free pending another appeal,”…
As reported in this Politico article, headlined “Mueller: Manafort deserves 19.5 to 24.5 years in prison for Virginia convictions, Special Counsel Robert Mueller filed this submission “to address the sentencing of defendant Paul J. Manafort, Jr.”  The Politico piece, along with lots of other press accounts, report that “Robert Mueller’s office recommended on Friday that Paul Manafort get up to 24-and-a-half years in prison for his conviction last summer for financial malfeasance.”  But a…
Though the (clumsy) increase in good-time credits has received considerable attention since the passage of the FIRST STEP Act (see prior posts here and here and here and here), I find the change to the administration of so-called compassionate release rules to be among the most fascinating elements of the new legislation.  If legislative enactments can have “sleeper provisions,” I would call the compassionate release changes the sleeper provisions of FIRST STEP.  This four-page …
As reported in this New York Times piece, headlined “Trump’s Tweets Do Not Bar Prosecutors From Seeking Death in Terror Case, Judge Rules,” a federal judge yesterday issued a notable ruling in a high-profile capital case. Here are the details: When President Trump said on Twitter that an Uzbek man charged with using a pickup truck to kill eight people “SHOULD GET DEATH PENALTY,” the man’s lawyers asked a judge to bar prosecutors from…
The title of this post is the title of this new paper by Craig Lerner now available via SSRN. Here is its abstract: How is an originalist judge in the common law tradition to reconcile the competing demands of the Constitution’s original meaning and an accumulating body of nonoriginalist precedents?  This Article explores the dilemma of constitutional originalism through a comprehensive review of Justice Scalia’s Eighth Amendment jurisprudence.  In this legal context the dilemma is…