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That was the year that was: a few thoughts on crime and punishment in 2023

By Douglas Berman

That_Was_The_Year_That_WasI am quite certain I cannot provide a truly thorough or fully thoughtful review of 2023 in crime and punishment and sentencing in the United States.  But I can flag a few matters that, at least for a law professor like me, helped to define the year that was in this legal space.  (And, of course, I savor any excuse to parrot language from my favorite commedy album.  The first track from that album remains depressingly timely.)  So here goes as I provide an abridged review the year that was:

Indictments and more indictments: Though we have not reached sentencings or even convictions in big cases, lots of indictments of lots of high-profile political figures have been the biggest on-going legal story and saga of 2023.  Of course, the four indictments of former Prez (and leading Prez candidate) Donald Trump serve as the central part of this remarkable story.  And Trump’s many indictments certainly have shaped various political realities this year, and lower court legal developments in these cases have already starting reaching SCOTUS.  The various indictments and machinations of other notable political figures like Hunter Biden and George Santos (and Trump’s co-defendants) would surely be seen as masive stories in 2023, but for everything seeming small in Trump’s shadow.  

After years of increases, crime now in historic decline: Though the particulars and reasons are still debated, it is without debate that 2020 to 2022 brought significant increases in crimes in the US.  But 2023 finally saw an encouraging turn around, and here are a few press pieces and substacks that helps to capture these encouraging realities:

Second Amendment jurisprudence finally impacting criminal enforcement: Though we are a full 15 years since the Supreme Court in Heller first formally determined that individuals have an enforceable constitutional right to keep and bear arms under the Second Amendment, lower courts long found various ways to uphold just nearly all broad laws creating criminal prohibitions on certain individuals keeping and bearing arms.  But in mid 2022, the Supreme Court recast Second Amendment jurisprudence around originalist principles via its ruling in Bruen, and courts throughout much of 2023 starting striking down an array of criminal gun prohibitions.  Most notably, a number of lower federal courts found a number of provisions of federal law criminally prohibiting gun possession by certain persons unconstitutional.  One case on this front, Rahimi, is pending before SCOTUS and oral argument suggested the Justices are disinclined to agree with the Fifth Circuit’s view that a criminal bar on gun posession by those subject to domestic violence restraining orders is unconstituional.  But exactly how Rahimi gets resolved is sure to have a huge impact on a range of other gun laws in the months and years ahead.    

Major guideline reforms from fully loaded US Sentencing Commission:  Though the US Sentencing Commissioner finally and formally returned to full agency activity with confirmed appointees in mid 2022, the actions of a fully-loaded Commission really came to fruition through 2023.   In this post from a few days ago, I noted the Commission’s own accoutning of its major 2023 work.  But the USSC’s activity on so many important fronts for the federal sentencing system defies easy summary.  As I have explained before, I believe the most consequential and significant action by the USSC this past year has been its intricate amendments to the guidelines’ criminal history rules and its decision to make those amendments retroactive.  But its revision of the sentence reduction (“compassionate release”) guideline is also so very important, and its new proposed amendments for the coming year address some fundamental features of the entire guideline sentencing structure.  From 2019 through 2022, I lamented the harms and opportunity costs of the USSC lacking a quorum, and the new Commission in 2023 proved in many ways how a vibrant federal sentencing agency can contribute so much to modern sentencing law, policy and practice.