Sentencing

Today, a unanimous Supreme Court held that restitution under the Mandatory Victims Restitution Act of 1996 (MVRA) is plainly criminal punishment for purposes of the Ex Post Facto Clause. Ellinger v. United States, No. 24-482 (Jan. 20, 2026).

Justice Kavanaugh delivered the unanimous opinion of the court.  Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. The Court’s opening paragraphs summarize the relevant facts and holding:

You know when there’s a chart in the procedural history section of a habeas case that you're going to need to buckle up. And so it is in the Fourth Circuit this week, where a Baltimore drug deal was broken up by cops and the purported seller threw a bag on the ground and made a run for it. The bag contained 10 grams of cocaine, and prosecutors rely on two chain-of-custody reports. But the reports have discrepancies, and one wasn't handed over until the second day of trial.

The Federal Defender’s Office for Massachusetts, New Hampshire, and Rhode Island, working in collaboration with the Federal Capital Trial Project, will host a regional training on the Fundamentals of Federal Capital Defense on January 15, 2026, in Boston. This is a first of its kind.

Federal prosecutors will not seek the death penalty for Matthew Farwell, accused of killing 23-year-old Sandra Birchmore while she was pregnant. See Boston.com news article.

Prosecutors allege Farwell killed Birchmore after she revealed that he was the father of her child and then staged the scene to make it look like she had died by suicide.

Farwell has pleaded not guilty.

The Florida Supreme Court upheld Florida’s law allowing non-unanimous juries to sentence people to death upon a vote of 8-4.

A federal judge on Monday dismissed the Justice Department's criminal cases against former FBI Director James Comey and New York Attorney General Letitia James, finding that acting U.S. Attorney Lindsey Halligan who secured the indictments against the two prominent critics of President Trump was unlawfully appointed (article available here).

Today, the United States Supreme Court denied Ghislaine Maxwell’s petition for certiorari. Maxwell v. United States, No. 24-1073 (U.S. Oct. 6, 2025) (cert. denied). Maxwell presented this question for review: under Santobello v. New York and common principles of contract interpretation, does a promise on behalf of the ‘United States’ or the ‘Government’ that is made by a United States Attorney in one district bind federal prosecutors in other districts?

Pennsylvania man stole 69 guns from gun stores—but says the restitution order stole from him, charging double for the same guns. After winning an earlier Third Circuit challenge to a restitution award of approximately $70,000, he was then ordered to pay $57,000. Man: still too much. Third Circuit: Totally agree. Restitution can cover the guns' value but not lost sales on top. Victims get made whole, not paid twice or for “consequential damages.”

Last Thursday, the U.S. Sentencing Commission released its Preliminary FY25 Third Quarterly Data Report, containing cumulative sentencing data from October 1, 2024, though June 30, 2025.