“Extraordinary and Compelling”: The Circuit Split Barrier to Compassionate Release Motions

*Kenneth Wyatt II

I. What is “Extraordinary and Compelling”?

For almost five decades, people incarcerated in federal prisons have faced barriers to early release from their sentences.[1] However, in 2018, Congress passed the First Step Act (FSA). The FSA, among other things, amended the U.S. Code’s compassionate release statute,[2] granting courts the ability to act on a motion for compassionate release filed by an incarcerated person.[3] Prior to the passing of the FSA, federal courts were only permitted to alter a defendant’s sentence upon a motion from the Director of the Federal Bureau of Prisons.[4] Now, a district court may modify a defendant’s term of imprisonment if:

(1) [T]he defendant [has] exhausted administrative remedies; (2) “extraordinary and compelling reasons” warrant a sentence reduction; (3) a sentence reduction is “consistent with applicable policy statements” issued by the U.S. Sentencing Commission; and (4) the district court considered the factors set forth in 18 U.S.C. § 3553(a).[5]

Congress directed the Sentencing Commission to promulgate general policy statements governing what constitutes extraordinary and compelling reasons for sentence reduction.[6] The Sentencing Commission provided a policy statement limiting “extraordinary and compelling reasons” for motions filed by the Bureau of Prisons (BOP) Director to those dealing with the incarcerated person’s medical conditions, age, family circumstances, or any other reason the BOP Director deems appropriate.[7] However, the Commission has no current policy statement pertaining to motions filed directly by incarcerated people under § 3582(c)(1)(A).[8] Several circuits agree that the Sentencing Commission’s current policy statement is not binding on district courts for prisoner-initiated motions.[9] However, there is still disagreement on the application of the phrase “extraordinary and compelling.”[10]

II. The Creation of Sentence “Stacking”

Prior to the FSA, any person charged with possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c) received a mandatory minimum sentence of five years for their first conviction and twenty-five years for every subsequent conviction.[11] The U.S. Supreme Court interpreted this to mean that the twenty-five year mandatory minimum enhancement for subsequent convictions applied to multiple § 924(c) counts charged in a single proceeding, even when the defendant had no prior § 924(c) convictions.[12] This application of the law created what is now known as “924(c) stacking.”[13]

In an effort to eliminate 924(c) stacking, Congress clarified the twenty-five year enhancement rule in § 403(a) of the FSA, triggering it only by conviction of a § 924(c) charge that occurs after the initial § 924(c) conviction is final.[14] While § 403(a) nearly eliminated sentence stacking, Congress limited its application to “defendants who have not yet been sentenced for their 924(c) convictions.”[15] As a result, courts have interpreted § 403(a) as non-retroactive.[16]

To date, Congress has not addressed district courts’ discretion to consider § 403(a) in motions for compassionate release.[17] This lack of direction by Congress, has created dissonance amongst the courts.[18]

III. The Split Amongst the Courts

The Third, Seventh, and Eighth Circuits have all held that district courts cannot consider § 403(a)’s non-retroactive changes, reasoning that these changes would allow § 3582(c)(1)(A) to provide a loophole to circumvent non-retroactivity.[19]

Alternatively, the First, Fourth, Ninth, and Tenth Circuits have determined that district courts may consider § 403(a)’s non-retroactive changes in combination with other factors presented by an incarcerated person.[20] These Circuits effectively allow district courts to consider an incarcerated person’s stacked charges as an extraordinary and compelling reason, so long as they present another factor that may warrant compassionate release.[21] The Circuits have provided two reasons for this conclusion:

(1) None of the statutes directly addressing “extraordinary and compelling reasons” prohibit district courts from considering non-retroactive changes in sentence law; and (2) a sentence reduction under § 3582(c)(1)(A) based on extraordinary and compelling reasons is entirely different from automatic eligibility for resentencing as a result of a retroactive change in sentencing law.[22]

IV. Self-Imposed Judicial Limitations

Congress has placed only two express limitations on extraordinary and compelling reasons warranting release: (1) that the district courts are bound by the Sentencing Commission’s Policy Statements[23] and (2) that “[r]ehabilitation . . . alone” is not extraordinary and compelling.[24] In the absence of any additional limits to the scope of information a district court may consider when modifying a sentence under the FSA, the district court’s discretion is not restrained in any further way.[25] While Congress did make § 403(a) non-retroactive,[26] it has not expressly prohibited district courts from considering non-retroactive changes in sentencing law in combination with other factors particular to each incarcerated individual.[27] Any limitations by the courts are self-imposed and belie the statute’s original intent.[28] These self-imposed limitations created disparities in time served amongst incarcerated people throughout the country. With the current circuit split, an individual may serve the entirety of their excessive sentence,[29] while another may receive compassionate release solely based on the location of their incarceration.[30]

V. The Necessary Resolution

The Supreme Court must address this issue to resolve the Circuit split. The Court should decide the split in favor of considering § 403(a)’s changes in combination with other factors when assessing a defendant’s petition for compassionate relief. This approach will combat the unduly harsh sentencing caused by the initial interpretation of 18 U.S.C. § 924(c).[31] Failure by the Supreme Court to address this split will further the discrepancy in the law’s application resulting in the continued incarceration of people whose sentences are no longer equitable.[32]

*Kenneth Wyatt II is a second-year day student at the University of Baltimore School of Law, where he is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. He also serves as a law scholar for Professor Meyerson and as a fellow in the school’s Legal Writing Center. Kenneth interned with Judge Grimm at the United States District Court for the District of Maryland this past summer and looks forward to being a summer associate at DLA Piper during the upcoming summer of 2023.

[1]See Sentencing Reform Act, Pub. L. No. 98-473, tit. II, ch. II, 98 Stat. 1987 (1984) (codified as amended in sections of 18 and 28 U.S.C.).

[2] 18 U.S.C.A. § 3582(c)(1)(A).

[3] See id.; see also Pub. L. 115-391, 132 Stat. 5239 (2018).

[4] Sentencing Reform Act, supra note 1.  

[5] § 3582(c)(1)(A); see United States v. Chen, 48 F.4th 1092, 1094–95 (9th Cir. 2022).

[6] 28 U.S.C.A. § 994(t) (West 2006).  

[7] U.S.S.G. § 1B1.13, cmt. n.1(A)–(D).

[8] See United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020) (“t]here is as of now no ‘applicable’ policy statement governing compassionate-release motions filed by defendants under the recently amended § 3582 (c)(1)(A), and as a result, district courts are ‘empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.’”) (quoting United States v. Brooker, 976 F.3d 228, 230 (2nd Cir. 2020)).

[9] United States v. Aruda, 993 F.3d 797, 801 (9th Cir. 2021) (explaining that the 2nd, 4th, 6th, 7th, 9th, and 10th Circuits “have unanimously held that U.S.S.G. § 1B1.13 only applies to § 3582(c)(1)(A) motions filed by the BOP Director, and does not apply to § 3582(c)(1)(A) motions filed by a defendant.”).

[10] See discussion infra Section III.

[11] See 18 U.S.C.A. § 924(c); see also United States v. Deal, 508 U.S. 129, 130–36 (1993).

[12] See Deal, 508 U.S. at 130–36.

[13] See id.; see also Chen, 48 F.4th at 1094.

[14] See First Step Act of 2018, Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221–22 (codified at 18 U.S.C. § 924(c)(1)(C)).

[15] Chen, 48 F.4th at 1094; see also First Step Act of 2018, supra note 13.

[16]Chen, 48 F.4th at 1094; see also First Step Act of 2018, supra note 13. Retroactivity makes the entire class of defendants automatically eligible for relief. Instead, § 3582(c)(1)(A) only makes “defendants who can meet the heightened standard of ‘extraordinary and compelling reasons’” eligible for relief. McCoy, 981 F.3d at 287.

[17] See supra note 6–8 and accompanying text. 

[18] See supra note 6–8 and accompanying text.  

[19] See United States v. Andrews, 12 F.4th 255, 261 (3d Cir. 2021), cert. denied, 142 S. Ct. 1446 (2022) (“[W]e will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.” “[C]onsidering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties.”); United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021), cert. denied, 142 S. Ct. 1363 (2022) (“[T]he discretionary authority conferred by § 3582(c)(1)(A) only goes so far. It cannot be used to effect a sentencing reduction at odds with Congress’s express determination embodied in § 403(b) of the First Step Act that the amendment to § 924(c)’s sentencing structure apply only prospectively.”); United States v. Crandall, 25 F.4th 582, 586 (8th Cir.), cert. denied, 142 S. Ct. 2781 (2022) (“[T]he compassionate release statute is not a freewheeling opportunity for resentencing based on prospective changes in sentencing policy or philosophy.”); see also See Chen, 48 F.4th at 1096.

[20] See id. at 1100 (holding that a petition for compassionate release “does not retroactively apply § 403(a)’s sentencing changes . . . allowing courts to consider § 403(a)’s changes in the extraordinary and compelling analysis does not conflict with § 403(b)’s non-retroactivity provision.”); United States v. Ruvalcaba, 26 F.4th 14, 25 (1st Cir. 2022) (“Nowhere has Congress expressly prohibited district courts from considering non-retroactive changes in sentencing law. . . . [N]o provision in the First Step Act indicates ‘Congress meant to deny the possibility of a sentence reduction, on a case-by-case basis, to a defendant premised in part on the fact that he may not have been subject to a mandatory sentence of life imprisonment had he been sentenced after the passage of the FSA.”) McCoy, 981 F.3d at 285–86 (“[C]ourts legitimately may consider, under the ‘extraordinary and compelling reasons’ inquiry, that defendants are serving sentences that Congress itself views as dramatically longer than necessary or fair.”); United States v. Maumau, 993 F.3d 821, 837 (10th Cir. 2021) (holding that the defendant’s age at the time of sentencing, the length of his stacked sentences under § 924(c), the First Step Act’s elimination of sentence stacking under § 924(c), and the significant difference in the sentence received and that which would have been received if the defendant was sentenced today were a combination of factors that created extraordinary and compelling reasons for release).

[21] Id.

[22] See Chen, 48 F.4th at 1097; see also supra note 15 and accompanying text (explaining how § 3582(c)(1)(A) differs from a retroactive change in law).

[23] U.S.S.G. § 1B1.13, cmt. n.1 (A)–(D); see also supra note 6 and accompanying text. This limitation only applies when the BOP Director files the motion.

[24] See 18 U.S.C. § 3582(c)(1)(A) (2018); 28 U.S.C.A. § 994(t) (West 2006).

[25] See Concepcion v. United States, 142 S. Ct. 2389, 2396 (2022).

[26] See supra notes 14–15 and accompanying text.

[27] Ruvalcaba, 26 F.4th at 25; see also First Step Act of 2018, supra note 13.

[28] See 18 U.S.C.A. § 3582(c)(1)(A); see also McCoy, 981 F.3d at 287 (“[T]he very purpose of § 3582(c)(1)(A) is to provide a ‘safety valve’ that allows for sentence reductions when there is not a specific statute that already afford relief but ‘extraordinary and compelling reasons’ nevertheless justify a reduction.”). 

[29] See supra notes 11–17 and accompanying text.

[30] See discussion supra III. 

[31] See supra notes 12–14 and accompanying text.

[32] See United States v. Ruvalcaba, 26 F.4th 14, 25 (1st Cir. 2022) (“No provision in the First Step Act indicates ‘Congress meant to deny the possibility of a sentence reduction, on a case-by-case basis, to a defendant premised in part on the fact that he may not have been subject to a mandatory sentence of life imprisonment had he been sentenced after the passage of the FSA.”).

Financial Firms Struggle to Maintain Regulatory Compliance as Employees Text

*Kristine Martinez

I. Introduction

“[I]nvestment banks are required to keep copies of all business-related communications that employees send and receive” under Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) rules.[1] These requirements are “designed to deter and uncover infringements such as insider trading and ‘front-running,’ or trading on information that is not yet public,” while also “ensuring best practice in terms of treatment of customers.”[2] Technological advancements, including the “proliferation of mobile-messaging apps” and the transition to remote work during COVID-19, strained financial firms’ compliance with their mandate to “monitor business communications.”[3]

II. The Bellwether: J.P. Morgan

On December 17, 2021, the broker-dealer subsidiary of JPMorgan Chase & Co., J.P. Morgan Securities LLC, admitted and acknowledged violation of federal securities laws requiring the preservation of employees’ securities-related business communications between January 2018 and November 2020.[4] As part of the SEC settlement, J.P. Morgan Securities LLC “agreed to pay a $125 million penalty and implement robust improvements to its compliance policies and procedures.”[5] Further, the broker-dealer “admitted that these failures were firm-wide and . . . supervisors, including managing directors and other senior supervisors—the very people responsible for implementing and ensuring compliance with JPMS’s policies and procedures—used their personal devices to communicate about the firm’s securities business.”[6]

This failure meant J.P. Morgan Securities LLC was not fully responsive to subpoenas and requests from the SEC in “numerous investigations during the time period that the firm failed to maintain required records.”[7] The broker-dealer “acknowledged that its recordkeeping failures deprived the SEC staff of timely access to evidence and potential sources of information for extended periods of time and in some instances permanently.”[8] The SEC further admonished that “the firm’s actions meaningfully impacted the SEC’s ability to investigate potential violations of the federal securities laws.”[9]

III. The Get: Sixteen Wall Street Firms

The SEC investigated firms such as Barclays, Bank of America, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, Morgan Stanley, and UBS which “cooperated with the investigation by gathering communications from the personal devices of a sample of . . . senior and junior investment bankers and debt and equity traders.”[10] Starting its inquiry prior to the pandemic, the SEC found that between January 2018 and September 2021, “the firms’ employees routinely communicated about business matters using text messaging applications on their personal devices.”[11] Therefore, the firms violated the federal securities laws because they “did not maintain or preserve the substantial majority of these off-channel communications.”[12] This failure “likely deprived the Commission of these off-channel communications in various Commission investigations.”[13]

On September 27, 2022, after finding “pervasive off-channel communications,” the SEC announced that it charged fifteen broker-dealers and an affiliated investment advisor with “widespread and longstanding failures by the firms and their employees to maintain and preserve electronic communications.”[14] The firms and affiliates “acknowledged that their conduct violated recordkeeping provisions of the federal securities laws, agreed to pay combined penalties of more than $1.1 billion, and [began] implementing improvements to their compliance policies and procedures” as part of their settlement with the SEC.[15]

Observing that this “recordkeeping has been vital to preserve market integrity” since the 1930s, SEC Chair Gary Gensler emphasized the importance of fulfilling the obligation to maintain and preserve business communications exclusively conducted through official channels.[16] The Director of the SEC’s Division of Enforcement, Gurbir S. Grewal, described financial recordkeeping requirements as “sacrosanct” and warned that “[o]ther broker dealers and asset managers who are subject to similar requirements under the federal securities laws would be well-served to self-report and self-remediate any deficiencies.”[17] Gensler pointed to public policy considerations driving the enforcement of rules regulating the storage of these communications, noting that “[f]inance, ultimately, depends on trust.”[18]

IV. Unfinished Business: New Inquiries

Although settlement statements will often not acknowledge wrongdoing, the aforementioned cases have been atypical in that “all the firms admitted to actual wrongdoing.”[19] After finding that employees across many of these firms “routinely used personal mobile messaging apps to discuss official business . . . disregarding company policies that forbid them from doing just that,”[20] the SEC has not shown signs that it will let up on these investigations.

In late October 2022, the SEC sent letters to dozens of investment firms to determine whether asset managers were compliant with their record retention requirements.[21] These letters probed for information concerning the apps and devices permitted for the investment firms’ official communications and inquired if electronic records of the same were captured.[22]

V. Conclusion

To balance the convenience of mobile communications platforms with the need for fastidious recordkeeping, financial firms have turned to new technologies as a solution to their compliance woes.[23] Businesses such as Symphony and Movius seek to fill the gap in the market for software that “integrates third-party communications tools such as email, Zoom, Microsoft Teams[,] and WhatsApp into one system that can be recorded and archived.”[24] Financial institutions such as Amundi, AXA IM, BNPP AM, and JPMorgan Asset Management have adopted such technologies.[25] Additionally, many banks internally introduced text and chat platforms that ensure adherence to regulatory requirements.[26] All financial firms subject to SEC and CFTC recordkeeping and supervision rules are on notice;[27] the investigations and penalties may not stop any time soon.

*Kristine Martinez is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for the Law Review, a Royal Graham Shannonhouse III Honor Society Scholar, a Law Scholar for Professor Hubbard’s Civil Procedure II class, and a Vice President of the Women’s Bar Association. Prior to law school, Kristine spent five years working as a paralegal, primarily assisting with litigation matters. During her 1L summer, Kristine interned with The Honorable Andrea M. Leahy of the Appellate Court of Maryland. Kristine looks forward to working as a summer associate at Kramon & Graham, P.A. during the upcoming summer of 2023.

[1] Pro Say, The Shifting Politics of Courthouse Arrests, Law360, at 09:48 (Sept. 30, 2022), https://podcasts.apple.com/us/podcast/law360s-pro-say-news-analysis-on-law-and-the-legal-industry/id1240435608?i=1000581203938.

[2] Iain Withers & Sinead Cruise, Asset Managers on Alert After ‘WhatsApp’ Crackdown on Banks, Reuters (Aug. 18, 2022, 3:04 AM), https://www.reuters.com/technology/asset-managers-alert-after-whatsapp-crackdown-banks-2022-08-18/.

[3] Lydia Beyoud, SEC Expands WhatsApp Scrutiny to Money Manager Communications, Bloomberg News (Oct. 11, 2022), https://www.bnnbloomberg.ca/sec-expands-whatsapp-scrutiny-to-money-manager-communications-1.1831121.

[4] Press Release, Sec. & Exch. Comm’n, JPMorgan Admits to Widespread Recordkeeping Failures and Agrees to Pay $125 Million Penalty to Resolve SEC Charges: Firm Also Agrees to Implement Significant Improvements to Its Compliance Controls (Dec. 17, 2021), https://www.sec.gov/news/press-release/2021-262. The SEC’s civil investigation culminated in a settlement with J.P. Morgan Securities LLC. Id. The CFTC issued an order the same day settling charges against J.P. Morgan Securities LLC and affiliated entities JPMorgan Chase Bank, N.A. and J.P. Morgan Securities plc for violating regulations and the Commodity Exchange Act. Press Release, Commodity Futures Trading Comm’n, CFTC Orders JPMorgan to Pay $75 Million for Widespread Use by Employees of Unapproved Communication Methods and Related Recordkeeping and Supervision Failures: JPMorgan Admits Employees Used Texts and WhatsApp on Personal Devices to Conduct Business (Dec. 17, 2021), https://www.cftc.gov/PressRoom/PressReleases/8470-21.  

[5] Press Release, Sec. & Exch. Comm’n, supra note 4

 [6] Id.  The CFTC’s investigation found many of the same recordkeeping and supervision violations as the SEC. Press Release, Commodity Futures Trading Comm’n, supra note 4. However, the CFTC found that the violations occurred since July 2015 and issued “a $75 million civil monetary penalty.” Id.

[7] Press Release, Sec. & Exch. Comm’n, supra note 4.

[8] Id.

[9] Id.

[10] Press Release, Sec. & Exch. Comm’n, SEC Charges 16 Wall Street Firms with Widespread Recordkeeping Failures: Firms Admit to Wrongdoing and Agree to Pay Penalties Totaling More Than $1.1 Billion (Sept. 27, 2022), https://www.sec.gov/news/press-release/2022-174.

[11] Id.

[12] Id.

[13] Id.

[14] Id. The same day, the CFTC settled with the firms and affiliates “for failing to maintain, preserve, or produce records that were required to be kept under CFTC recordkeeping requirements, and failing to diligently supervise matters related to their businesses as CFTC registrants.” Press Release, Commodity Futures Trading Comm’n, CFTC Orders 11 Financial Institutions to Pay Over $710 Million for Recordkeeping and Supervision Failures for Widespread Use of Unapproved Communication Methods: Registered Swap Dealers and FCMs Admit Use of Texts, WhatsApp and Other Unapproved Methods to Conduct Business (Sept. 27, 2022), https://www.cftc.gov/PressRoom/PressReleases/8599-22.

[15] Press Release, Sec. & Exch. Comm’n, supra note 10.

[16] Id.

[17] Id.

[18] Id.

[19] Pro Say, supra note 1, at 11:50.

[20] Id. at 08:20.

[21] Beyoud, supra note 3.

[22] Lydia Beyoud, SEC Looking Into Money Managers’ Use of Outside Messaging Apps, Bloomberg Law (Oct. 11, 2022, 5:02 PM), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/XEKJR0R0000000?bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9wcm9kdWN0L2JsYXcvc2VhcmNoL3Jlc3VsdHMvM2E1NzYxNzdlZDg5MzRkNzBjNTA1YzRkZTZiOWE1YTciXV0–7a6218654fa0c6e3cdd437a5d6169d18cad7543a&bna_news_filter=bloomberg-law-news&criteria_id=3a576177ed8934d70c505c4de6b9a5a7.

[23] Withers & Cruise, supra note 2.

[24]  Id.

[25] Id.

[26] Pro Say, supra note 1, at 12:45.

[27] Beyoud, supra note 3.

Kanye West May Not Be Able To “Runaway”[1] from His Latest Controversial Comments: Family of George Floyd Files $250 Million Lawsuit Against West for Disparaging Remarks

*Nicholas Balzano

I. Introduction

Kanye West (West) is no stranger to drama,[2] but his latest comments may have finally landed him in serious legal trouble.[3] Just weeks removed from posting on his Twitter account that he was going to go “death con 3 on JEWISH PEOPLE,”[4] a comment which resulted in West getting banned from both Facebook and Twitter,[5] West went onto the podcast Drink Champs and claimed that George Floyd (Floyd) died due to a fentanyl overdose.[6] West’s comments about Floyd were blatantly false; the “Hennepin County Medical Examiner’s Office ruled that Floyd’s death was a homicide, caused by Derek Chauvin kneeling on Floyd’s neck for over eight minutes.”[7]

Upon hearing West’s comments about Floyd, the Floyd family announced their intention, through their attorneys at the Witherspoon Law Group, to sue West, his business partners, and his associates “for harassment, misappropriation, defamation, and infliction of emotional distress” for a total sum of $250 million in damages.[8] This suit is highly reminiscent of a recent claim against the famous conspiracy theorist Alex Jones, in which a jury found that Jones must pay “$965 million to the families of eight Sandy Hook shooting victims” after Jones “creat[ed] a fake narrative that the mass shooting was a hoax.”[9] If the outcome in the Jones case is any indication, it would seem that West could face a similar consequence.

II. What Is the Floyd Family Claiming in Their Suit?

In addition to legal claims of “harassment, misappropriation, defamation, and infliction of emotional distress,”[10] the Floyd family also claims that West’s words have hurt Floyd’s daughter, and “creat[ed] an unsafe and unhealthy environment for her.”[11] The Floyd family’s attorneys have stated that “Kanye’s comments are a repugnant attempt to discount George Floyd’s life and to profit from his inhumane death” and that they will “hold Mr. West accountable for his flagrant remarks.”[12] The family has stated that “[f]ree [s]peech [r]ights do not include harassment, lies, misrepresentation, and the misappropriation of George Floyd’s legacy.”[13] While the Floyd family has made several claims in their suit, the allegation of intentional infliction of emotional distress (IIED) may provide their most likely route to victory.[14]

III. How Can the Floyd Family Prevail in Their Lawsuit Against West?

According to Roy S. Gutterman, the director of the Tully Center for Free Speech at Syracuse University, the “[Floyd] family may have an uphill battle” against West on the matter of First Amendment rights.[15] Gutterman points out that “there is no possibility of a defamation action” in this case because there is “no living plaintiff whose reputation has been damaged.”[16] However, Gutterman does see a potential path to victory for the Floyd family on their claim of IIED.[17]

On October 12, 2022, a jury in Connecticut handed down a massive victory for some of the families who lost their loved ones in the Sandy Hook massacre.[18] One of the central claims at issue in the case was the claim of intentional infliction of emotional distress as a result of Alex Jones’ statements that the entire massacre was a government hoax.[19] The families of the Sandy Hook victims claimed that the comments made by Alex Jones turned their lives post-Sandy Hook “into years of torment”[20] and that “Jones [had] made it so they [couldn’t] escape” the trauma the mass shooting had inflicted.[21] For example, Mark Barden, who lost his son in the shooting, claimed that due to Jones’ comments, his seven-year-old son’s grave had been “urinated on” and that those who believed Jones’ that the shooting was a hoax had even gone so far as to threaten to dig up his son’s coffin.[22] The families of the Sandy Hook victims prevailed on their claim of IIED, and Alex Jones was made “to pay nearly $1 billion” due to his flagrantly false comments.[23]

Given the outcome of the Sandy Hook case, Floyd’s family may have a good chance at claiming that West’s comments have caused the harm necessary to satisfy the elements of IIED.[24] According to Gutterman, for the Floyd family to succeed on such a claim, they will need to “prove that the statements were intentional or reckless, outside the bounds of accepted decency and morality and causally-connected to some viable harm.”[25]

Analyzing West’s statements under this framework, it appears that the Floyd family may have a good argument to win on their claim of IIED. Under the first prong, West’s statements do not appear to be intentional under the Second Restatement approach which requires an intention to inflict the emotional distress,[26] however, the statements by West are more likely reckless as they were in “deliberate disregard of a high degree of probability that emotional distress” will occur.[27] The second requirement, that the statements be outside the bounds of accepted decency, appears to be satisfied as Floyd’s death was a highly charged issue and by claiming that Floyd’s death was the result of drugs, West undermines the seriousness of Floyd’s death at the hands of the police.[28] West’s statements likely satisfy the element of conduct outside the bounds of decency put forth in the Second Restatement of Torts that, upon hearing the objectionable statements, “an average member of the community would arouse his resentment against the actor.”[29] The last prong also appears to be satisfied as West’s statements are likely causally-connected to the harm suffered by Floyd’s daughter that is alleged by the family.[30] Given this analysis of the IIED requirements, the Floyd family may be successful on their claim against West.   

IV. Conclusion

Kanye West is well-known for his erratic behavior, but he may have taken it too far this time. With his recent false claims against George Floyd and concerning behavior, West was dropped by some of his highest-profile sponsors, including Balenciaga, Vogue, and GAP.[31] On top of those brands dropping him, West now faces the $250 million lawsuit from Floyd’s family.[32] With the jury’s decision in Alex Jones’ case, celebrities may learn that now, more than ever, their speech can have serious ramifications. While West has been able to avoid serious legal consequences for his previous antics, this large lawsuit by the Floyd family should have West considering going “Off The Grid” for good this time.[33]

*Nicholas Balzano is a second-year day student at the University of Baltimore School of Law, where he is a Staff Editor for Law Review, a member of the Royal Graham Shannonhouse III Honor Society, and a member of the Honor Board. Prior to law school, Nicholas worked as a law clerk at Atkinson Law. During his 1L summer, Nicholas interned with the Honorable Audrey J.S. Carrión, Administrative Judge and Chief Judge for the Circuit Court for Baltimore City.

[1] Kanye West, Runaway, on My Beautiful Dark Twisted Fantasy (UMG Recordings, Inc. 2010).

[2] See Charlotte Begg, “It Hurts my Feelings”. All the Drama between Kanye West and the Kardashian . . . and Everyone Else., MamaMia (Oct. 5, 2022), https://www.mamamia.com.au/kanye-west-kardashians-drama/.

[3] See Matt Adams, The Family of George Floyd Plans to File a $250 Million Lawsuit Against Ye, NPR, (Oct. 19, 2022), https://www.npr.org/2022/10/19/1129747423/kanye-west-george-floyd-lawsuit.

[4] Loree Seitz, Kanye “Ye” West Apologizes for Anti-Semitic ‘Death Con’ Comments: ‘I Caused Hurt and Confusion’, Yahoo, (Oct. 19, 2022), https://www.yahoo.com/now/kanye-ye-west-apologizes-anti-223700055.html; Sarah McCann, What does Defcon 3 mean? Kanye ‘Ye’ West’s Antisemtic Comment Explained-how did Adidas and Spotify Respond, NationalWorld, (Oct. 27, 2022), https://www.nationalworld.com/news/people/what-does-defcon-3-mean-kanye-ye-wests-antisemitic-comment-explained-how-did-adidas-spotify-respond-3894636 (“Defcon is an abbreviation of the term Defence readiness condition which is used by the US Military. Defcon 3 means ‘force readiness increased above normal levels’ and would mean there is ‘increased regional tensions with possible U.S. force involvement.’”)

[5] Id.

[6] See Daniel Kreps, Kanye West Blames George Floyd’s Death on Fentanyl, Not Police Officer’s Knee, Rolling Stone,(Oct. 16, 2022),https://www.rollingstone.com/music/music-news/kanye-west-george-floyd-drink-champs-1234612069/.

[7] Adams, supra note 3.

[8] The Witherspoon Law Group, Facebook, (Oct. 18, 2022), https://www.facebook.com/witherspoonwewin/posts/pfbid02CYAb5U7BDpNDFfAhEXQUy3SwyvhFkyf217EJRmiJg5qGmzVdZha92uT7eGb8yY4Rl.

[9] Safia Samee Ali, Alex Jones Must Pay $965 Million in Damages to Families of 8 Sandy Hook Victims, NBC News, (Oct. 12, 2022), https://www.nbcnews.com/news/us-news/alex-jones-must-pay-965-million-in-damages-to-families-of-8-sandy-hoo-rcna51200.

[10] The Witherspoon Law Group, supra note 8.

[11] Id.

[12] Id.

[13] Id.

[14] See Adams, supra note 3.

[15] Id.

[16] Id.

[17] See id.

[18] See Ali, supra note 9.

[19] See id.

[20] Dave Collins, Alex Jones Ordered to Pay $965 Million for Sandy Hook Lies, AP News, (Oct. 12, 2022), https://apnews.com/article/shootings-school-connecticut-conspiracy-alex-jones-3f579380515fdd6eb59f5bf0e3e1c08f.

[21] Ali, supra note 9.

[22] Collins, supra note 20.

[23] Id.

[24] See Adams, supra note 3; Restatement (Second) of Torts § 46(1) (Am. L. Inst. 1965).

[25] See Adams, supra note 3.

[26] Restatement (Second) of Torts § 46 cmt. (h)(i) (Am. L. Inst. 1965).

[27] Id.

[28] See Adams, supra note 3.

[29] Id. § 41 cmt. (d).

[30] Id.; see The Witherspoon Law Group supra note 8.

[31] See Jordan Hart, Kanye West Refuses to be Canceled Despite Vogue and Balenciaga Being the Latest Among these Fashion Companies to Sever Ties, Business Insider, (Oct. 22, 2022), https://www.businessinsider.com/balenciaga-gap-yeezy-adidas-fashion-brands-dumped-kanye-west-2022-10.

[32] See Adams, supra note 3.

[33] Kanye West, Off The Grid, on Donda (UMG Recordings, Inc. 2021).

Marijuana Expungement in Maryland: Ready for Reform?

*Natalie Murphy

I. Introduction

    Maryland recently voted to legalize recreational cannabis after decades of political activism on the issue.[1] However, legalization alone is not enough to fix the damage decades of racist cannabis enforcement imposed on Black Marylanders.[2] An expungement provision in Maryland’s House Bill 837 (HB 837) seeks to recognize the unequal history of marijuana enforcement.[3] The new law legalizes possession of up to 2.5 ounces of marijuana for Marylanders over twenty-one, and automatically expunges all criminal marijuana possession records.[4] How does HB 837 compare with Maryland’s prior expungement reform efforts? Could automatic marijuana possession expungements help ameliorate decades of racist marijuana enforcement as we enter the era of legalization? Maryland’s historically conservative view towards expungement reform indicates that while HB 837 represents a positive development, expungement is a necessary but insufficient tool for social equality and requires significant reformation before it can truly benefit Marylanders with criminal records.[5]

    II. What is Expungement?

      Expungement eliminates a criminal charge or conviction from an individual’s record.[6] Theoretically, an individual whose record has been expunged is treated as if the incident never occurred.[7] However, not all records can be expunged.[8] Many states bar expungement for violent crimes, civil offenses, or for individuals who have committed subsequent crimes.[9]  Expungements are rare at the federal level, and are largely handled by state governments.[10] States vary in their expungement regimes and commonly only allow expungement after a statutory period ranging between three and fifteen years.[11]

      Many people with criminal records (by some estimates, twenty-five to thirty percent of U.S. citizens[12]) welcome expungements because criminal records carry a high degree of stigma that raises many barriers.[13] Employment is a significant challenge for individuals with criminal records, and in Maryland, many potential employers seek pre-employment criminal background checks.[14] Beyond employment, housing access is often contingent on submitting a criminal record report, and the Fair Credit Reporting Act takes arrest and conviction history into account when determining credit access.[15] Some states deny benefits like SNAP (Supplemental Nutritional Program) or TANF (Temporary Assistance for Needy Families) to those with drug-related convictions.[16] Courts also consider prior criminal history when determining custody and domestic rights.[17] To complicate matters, criminal records often include arrests and non-convictions, which decision-makers without a legal background may regard negatively even though the record does not amount to a conviction.[18] By removing barriers to necessities like employment and housing, expungements serve a personal and social good by increasing opportunities for Marylanders with criminal records.[19]

      Despite the social utility of expungements, the process for obtaining an expungement is often complex and lengthy.[20] Maryland recommends, but does not require, utilizing a lawyer for the expungement process.[21] Eligibility for an expungement can take up to fifteen years in Maryland, and any other charges associated with the incident in question must also be expungable.[22] Those seeking to expunge convictions must pay a $30 filing fee.[23] Assuming all forms are filled out correctly, the statutory period is met, the fees are paid, and the expungement is eligible, the approval process takes up to ninety days.[24] The process is also not always fully effective: even when expunged, many states have poor enforcement procedures that allow private agencies, like background check companies, to continue accessing records post-expungement.[25]

      III. Maryland’s Expungement Reform History

        Maryland historically takes a conservative approach to expungement, and has been slow to implement change despite critical holes in the State’s expungement system.[26] Maryland passed its first piece of legislation limiting public access to criminal records with the 2015 Second Chance Act (Act).[27] The Act allows individuals to “shield” possession charges, including those for marijuana, after three years.[28] Shielding makes records inaccessible to the general public but offers a lower degree of privacy than expungement.[29] Although a historic act, the legislation is riddled with exceptions, the most significant of which authorizes employers to view shielded records with permission.[30] This provision greatly hampers the Act’s intent to increase employment opportunities for Marylanders with criminal records.[31]

        Maryland expanded expungement opportunities for individuals with low-level marijuana charges in the October 17, 2017 reform to Maryland Criminal Procedure § 10-105.[32] This change authorized expungement for civil marijuana possession charges of ten grams or less after four years under Maryland Criminal Procedure § 5-601.[33] Beginning October 1, 2021, Maryland implemented a rule authorizing automatic expungement after three years for marijuana possession charges concluding in acquittal, dismissal, not guilty, or nolle prosequi.[34] While both changes represent shifting norms surrounding marijuana possession records, they encompass only small changes, and are far from overhauling the possession expungement system.

        Maryland’s expungement law has several additional rules complicating expungements, such as the unit rule and subsequent conviction period. Under the “unit rule,” individuals can only get a record expunged if all other charges from the incident in question are also expungable.[35] Given the number of charges Maryland considers non-expungable, this is a massive barrier for otherwise expungable charges.[36] Subsequent convictions also pose a problem for expungement—an individual convicted of another crime during the statutory waiting period is not eligible for expungement until the statutory period for the subsequent conviction terminates.[37]

        IV. Expungement and Social Justice

          Many states have made efforts to recognize decades of racist drug enforcement in tandem with legislation legalizing marijuana.[38] Marijuana legalization has instigated a “Green Boom” of high-profit businesses that drive hundreds of millions in state tax dollars, yet returns little to the Black and Latino communities most impacted by the War on Drugs.[39] According to Adam Vine, a marijuana justice organizer in California, pairing legalization efforts with attempts to undo old harms is crucial because otherwise, “[l]egalization is just theft.”[40] Vine suggests expungement can help repair the damage.[41] But before expungement can truly be useful for rehabilitating individuals with marijuana convictions, Maryland needs to clarify and enforce standards for the private storage of expunged records.[42] Additionally, Maryland must discontinue the practice of allowing decision makers to request expunged records—a practice that frustrated the intensions of the 2017 Second Chance Act.[43]

          Even under perfected standards, expungement “should be viewed as one piece of a larger puzzle aimed at alleviating the plight of those with criminal records.”[44] Expungement alone could never ameliorate the negative impacts of a decades-long racist drug war.[45] Illinois advocates advocate for more than just expungements—they want reparations.[46] Tyrone Muhammad, a founder of Ex-Cons for Social Change, explains “[e]xpungement alone doesn’t deal with 20, 30, 50 years of incarceration and destruction to our communities by taking [B]lack men off the streets . . . [e]x-cons who were taken away for marijuana need to see our fair share of profit after all we and our families have been through.”[47]

          Appropriate as Muhammed’s argument may be, paying financial reparations to Black Americans in recognition of slavery’s legacy and ties to the modern criminal legal system has yet to gain wide-spread public support.[48] Despite the amount of discussion brought by Baltimore native Ta-Nehisi Coates’s The Case for Reparations, there is even less recognition specifically surrounding reparations for racist marijuana enforcement in Maryland.[49] In light of calls for reparations and more radical approaches to recognizing the history of marijuana enforcement, expungement thus represents a necessary but small step in the right direction.

          V. Conclusion

          Expungement remains one of the few tools available for promoting equality in the face of shifting marijuana norms. Expungements in Maryland are already hampered by privacy exceptions and complex protocols that limit their utility. To truly confer protection to Marylanders with past possession charges, current expungement laws require significant modification. However, given Maryland’s hesitation to alter expungement laws generally, the passage of House Bill 837 marks a massive shift in state expungement protocol for marijuana that could pave the way for increased reforms elsewhere.

          *Natalie Murphy is a second-year J.D. candidate at the University of Baltimore Law School. She is currently interning at the Forensics Division of the Maryland Office of the Public Defender and intends to be a public defender in Baltimore City after graduating. She is fascinated by the relationship between science and the law and thinks reading science fiction is crucial for helping everyone (but especially lawyers) imagine a better world.

          [1] Nehemiah Bester & Neydin Milián, A War on Marijuana, Or a War on Black Communities?, Am. C.L. Union Md. (Feb. 2, 2022, 5:00PM), https://www.aclu-md.org/en/news/war-marijuana-or-war-black-communities.

          [2] See id.

          [3] Hannah Gaskill, Lawmakers Weigh the Feasibility of Expungement Post-Cannabis Legislation, Md. Matters (Oct. 28, 2021), https://www.marylandmatters.org/2021/10/28/lawmakers-weigh-the-feasibility-of-record-expungement-post-cannabis-legalization/.

          [4] H.D. 837, 2022 Legis. 444th Sess. (Md. 2022).

          [5] See infra section IV.

          [6] Div. Pub. Ed., What is Expungement?, Am. Bar Assoc. (Nov. 20, 2018), https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-_expungement-/.

          [7] Id.

          [8] Brian M. Murray, Retributive Expungement, 169 U. Penn. L. Rev. 665, 689 (2021).

          [9] Id.

          [10] Id.

          [11] Brian M. Murray, A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels, 10 Harv. L. & Pol’y Rev. 369 (2016).

          [12] Michelle Natividad Rodriguez & Maurice Emsellem, 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks in Employment, Nat’l Emp. L. Proj. 27, ¶ 2 (Mar. 2011), https://www.nelp.org/wp-content/uploads/2015/03/65_Million_Need_Not_Apply.pdf.

          [13] Murray, supra note 10, at 365–67.

          [14]Criminal Records and Employment, MD. Dept. Disabilities, https://mdtransitions.org/criminal-records-and-employment/ (last visited Jan. 3, 2022).

          [15] Murray, supra note 10, at 365.

          [16] Darrel Thompson & Ashley Burnside, No More Double Punishments: Lifting the Ban on SNAP and TANF for People with Prior Felony Drug Convictions, Ctr. L. & Soc. Pol’y. (Apr. 2022). https://www.clasp.org/publications/report/brief/no-more-double-punishments/.

          [17] Murray, supra note 10, at 365.

          [18] Kyla D. Craine & Glenn E. Martin, Returning Citizens: How Shifting Law and Policy in Maryland Will Help Individuals Return from Incarceration, 46 U. Balt. L. Forum 1, 4 (2015).

          [19] Rebecca Vallas et al., A Criminal Record Shouldn’t Be a Life Sentence to Poverty, Ctr. Am. Prog. (May 28, 2021), https://www.americanprogress.org/article/criminal-record-shouldnt-life-sentence-poverty-2/s.

          [20] Murray, supra note 7, at 668.

          [21] Expungement: How to Expunge Court Records,MD Courts, https://mdcourts.gov/sites/default/files/court-forms/ccdccr072br.pdf (last updated Sep. 2022).

          [22] Id.

          [23] Id.

          [24] Id.

          [25] Murray, supra note 10, at 380–81.

          [26] Id. at 372; Matthew R. Braun, Re-Assessing Mass Incarceration in Light of the Decriminalization of Marijuana, 49 U. Balt. L. Forum. 24, 28–9 (2018).

          [27] Craine & Martin, supra note 14, at 7; Md. Code. Ann., Crim Proc. § 10-301 (West, 2022).

          [28] Md. Code. Ann., Crim Proc. § 10-303 (West, 2022).

          [29] Md. Code. Ann., Crim Proc. § 10-301(e) (West, 2022).

          [30] Murray, supra note 10, at 370–71; Craine & Martin, supra note 17, at 7.

          [31] Craine & Martin, supra note 17, at 7.

          [32] Braun, supra note 20, at 29.

          [33] Md. Code Ann., Crim. Law § 5-601 (West, 2022).

          [34] Md. Code. Ann., Crim. Proc. § 10-105.1 (West, 2022).

          [35] Md. Code Ann., Crim. Proc. § 10-107 (West, 2022).

          [36] Md. State Bar Assoc., Expungements: What an Attorney Needs to Know (May 15, 2020), https://www.msba.org/expungements-what-an-attorney-needs-to-know/

          [37] Md. Code Ann., Crim. Proc. § 10-110 (West, 2022).

          [38] See Toni Smith-Thompson & Yusuf Abdul-Qadir, How Legalizing Cannabis Makes the Case for Reparation, Am. C. L. Union N.Y. (Apr. 9, 2021), https://www.nyclu.org/en/news/how-legalizing-cannabis-makes-case-reparations; Jenni Avens, In the Time of Luxury Cannabis, It’s Time to Talk About Drug War Reparations, Quartz Mag. (Jan. 25, 2019), https://qz.com/1482349/weed-and-reparations (describing efforts to correct past wrongs in California’ marijuana enforcement).

          [39] Avens, supra note 37.

          [40] Id.

          [41] Id.

          [42] Murray, supra note 10, at 379–380.

          [43] See Murray, supra note 10, at 370; Craine & Martin, supra note 17, at 8.

          [44] Murray, supra note 10, at 378.

          [45] Bester & Milián, supra note 1 (explaining the enduring legacy of racism in marijuana legislation following the drug war).

          [46] “If We Don’t Fight, Who Will?”: Activists Demand Reparations for Ex-Cons Convicted of Marijuana Charges in Illinois, CBS Chicago (Jul. 11, 2021) https://www.cbsnews.com/chicago/news/illinois-marijuana-convict-reparations/.

          [47] Id.

          [48] Avens, supra note 37.

          [49] Ta-Nehisi Coates, The Case for Reparations, Atlantic (Jun. 2014), https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/.