January 29, 2013
US District Judge Gleeson assails drug guidelines in another potent opinonA number of helpful readers made sure I did not miss the latest doozy of an opinion issued by US District Judge John Gleeson in United States v. Diaz, No. 11-CR-00821-2 (E.D.N.Y. Jan. 28, 2013) (available for download below). The opinion is a must-read for various reasons — one reader described it to me as an "instant classic" — and these opening points hint at the opinion's coverage:
These passages from the body of the lengthy Diaz opinion reveal just some of its many flourishes:
Last year in United States v. Dossie, I wrote about how the mandatory minimum sentences in drug trafficking cases distort the sentencing process and mandate unjust sentences. This case illustrates a separate but related defect in our federal sentencing regime....
Diaz will be sentenced in a few weeks, and when that happens I will carefully consider all the factors set forth in 18 U.S.C. § 3553(a) except one — the length of imprisonment recommended by the United States Sentencing Commission’s Guidelines Manual. Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it. In fairness to the government, I write here to explain my belief that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one.
The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.
If the Commission wants greater adherence to the Guidelines, as it should, it needs to get better at fixing broken offense guidelines. The drug trafficking offense guideline was born broken. Many judges will not respect it because as long as the sentences it produces are linked to the ADAA’s mandatory minimums, they will be too severe. Indeed, as discussed further below, for almost two decades the nation’s judges have been telling the Commission to de-link the drug trafficking offense guideline from those harsh mandatory minimums and to reduce the sentencing ranges. The Commission should listen and act. It should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses. That process will take time. In the meantime, because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third....
Let those who advocate for longer prison terms, and even a return to the dark days of mandatory Guidelines, go ahead and make their case. The debate is good for the health of our federal criminal justice system. But the suggestion that federal sentences should become more severe in the name of racial equality is preposterous. That case has emphatically not been made, and the Commission’s repeated suggestion that it has insults the entire judiciary and demeans the Commission itself. If it does nothing else, the Commission should take affirmative steps to remove the race issue, which it unwisely inserted into the discussion of federal sentencing policy, from the debate....
The Commission should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses. If it does, those ranges will be substantially lower than the ranges produced by the current offense guideline. The deep, easily traceable structural flaw in the current drug trafficking offense guideline produces advisory ranges that are greater than necessary to comply with the purposes of sentencing. We must never lose sight of the fact that real people are at the receiving end of these sentences. Incarceration is often necessary, but the unnecessarily punitive extra months and years the drug trafficking offense guideline advises us to dish out matter: children grow up; loved ones drift away; employment opportunities fade; parents die.
January 29, 2013 at 11:14 PM | Permalink
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Congress wears its neckties too tightly which reduces blood circulation to the brain .
Posted by: Anon. #2.71828 | Jan 29, 2013 11:22:43 PM
Superb opinion! Kudos to Judge Gleeson
Posted by: Michael R. Levine | Jan 29, 2013 11:42:45 PM
How many times does the Supreme Court have to say that the guidelines are "advisory only"?
Posted by: Bill Otis | Jan 30, 2013 2:35:36 AM
Bill there is a difference between saying the guidelines are advisory and need not be followed and the guidelines are advisory and "should not" be followed. I understand Judge Gleeson to say the latter, at least in drug cases.
Posted by: Dave from Texas | Jan 30, 2013 2:59:00 AM
Dave from Texas --
But each district judge in the country knows the Guidelines need not be followed, and each knows, from Gall and Kimbrough, that he is free to disagree with not just the Sentencing Commission but Congress itself. Accordingly, those judges who agree with Gleeson that drugs are not that big a deal are already on his ship, and those who disagree, which is quite a few of them, are unlikely to be moved by Gleeson's repeating a view he is well known to have voiced before.
Posted by: Bill Otis | Jan 30, 2013 3:22:09 AM
Otis ..using your logic you should stop posting on this blog at once!!!!!
Posted by: SteveProf | Jan 30, 2013 8:23:00 AM
Love it! Gleeson as well as Mark Bennett in Iowa.
Posted by: PDB | Jan 30, 2013 9:04:49 AM
Anonymous and the judge are both on the right track in targeting the Sentencing Commission.
Posted by: Steve Jensen | Jan 30, 2013 10:58:42 AM
Bennett,Gertner(now gone),Adelman,Weinstein,Gleeson..its sad how few have the energy and care enough to try and speak out
Posted by: scott tilsen | Jan 30, 2013 11:10:40 AM
Judge Gleeson (a former federal prosecutor and far from a known soft sentencer) is hardly of the view that drugs are "not that big a deal." Instead, he has explained in detail why the drug sentencing guideline is conceptually and methodologically flawed, and has been since its inception. And he has identified the ways in which it should be fixed, to refocus the harshest punishment on those who run drug distribution rings, rather than to let it fall haphazardly on ignorant and addicted lookouts and mules.
Bravo for a rigorous and scholarly look at how the Commission has actually performed (or not) its job, and how it might do the job better, in a way that lives up to its mission.
Boo for reflexive dismissal based on a superficial perception of whether the opinion's bottom line favors defendants or the government. Actually reading and engaging with the opinion might produce more informed commentary.
Posted by: Def. Atty. | Jan 30, 2013 11:14:52 AM
Using your logic, so should you.
Posted by: Bill Otis | Jan 30, 2013 12:47:31 PM
Def. Atty. --
"Boo for reflexive dismissal based on a superficial perception of whether the opinion's bottom line favors defendants or the government."
Really? If the bottom line had favored the government, would you be posting about how insightful it is?
Posted by: Bill Otis | Jan 30, 2013 12:51:50 PM
I don't do federal criminal work, but I continue to be perplexed at why federal judges don't use the Eighth Amendment as a foundation for a finding that the sentence sought by the government or set forth in the guidelines is grossly disproportionate and therefore unconstitutional.
I know at least four NC judges who have taken that approach to vacate lengthy habitual felon sentences for possessing a tiny amount of cocaine.
Posted by: bruce cunningham | Jan 30, 2013 1:18:23 PM
Federal sentencing guidelines are guidelines for INTUITIVE decision-making. Intuitive decisions can be manipulated easily by heuristics of various kinds, just as the federal guidelines. Obviously the federal guidelines that apply in this case are are not based on reason, but were intuitive.
What is needed is a paradigm shift, from intuition to reason. Cognitive scientists call these two modes of thought System I and System II. For more information, take a look at Daniel Kahneman's recent book entitled Thinking, Fast and Slow.
The Feds should keep up with science. Kahneman received the Nobel Prize in 2002 for his work in this area.
Posted by: Tom McGee | Jan 30, 2013 3:00:01 PM
SteveProf: your sardonic ad hominem attacks on Mr. Otis are out of place and are unwanted. Please be respectful of all who post here and respectfully debate the ideas.
Posted by: onlooker1 | Jan 30, 2013 3:13:42 PM
Here are some other excerpts from this well-reasoned and important opinion:
“Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it… my belief [is that] that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one. The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.
The genesis of the structural flaw is easily traced. It is rooted directly in the fateful choice by the original Commission to link the Guidelines ranges for all drug trafficking defendants to the onerous mandatory minimum penalties in the Anti-Drug Abuse Act of 1986 (“ADAA”) that were expressly intended for only a few…. Incarceration is often necessary, but the unnecessarily punitive extra months and years the drug trafficking offense guideline advises us to dish out matter: children grow up; loved ones drift away; employment opportunities fade; parents die. Until the Commission does the job right, which should take considerable time, it should lower the ranges in drug trafficking cases by a third for the reasons set forth above. In the meantime, the current ranges will be given very little weight by this Court."
Posted by: Michael R. Levine | Jan 30, 2013 3:24:44 PM
Nailed it. Judge Gleeson should have the courage of his convictions and hold the mandatory minimum to be a violation of the Eighth Amendment. We will then see what the Second Circuit, and perhaps the Supreme Court, have to say about it.
Posted by: Bill Otis | Jan 30, 2013 3:31:47 PM
I am fully convinced that almost all drug charges should be dropped by 1/3... But in as much as its Federal, one can expect "high level conceptual vague" outcomes on everything.. Dropped by 1/3 after all MM have been tossed...
Posted by: MidWestGuy | Jan 30, 2013 3:40:55 PM
It's a good opinion but in an effort to seem comprehensive it's too long to be usefully recommended to someone not already fascinated with the topic. I don't think Gleeson needs to go where Bill Otis suggests. The point is that the mandatory minimum statutes (in their current formulation) might perfectly reasonably be considered constitutional but dumb. Congress passes constitutional but dumb laws all the time. It's one of their major activities. The judge's role, one could at least fairly contend, is to respect and enforce the outcomes actually mandated by constitutional but dumb laws (subject to suggesting that, e.g., prosecutors might wish to exercise their legitimate discretion in ways that avoid mandating those outcomes in particular cases) but not unnecessarily build on and extend the dumb rationale of dumb laws to create additional and unnecessary dumb outcomes in situations where the statute does not by its terms require that outcome. 80% of the opinion is explaining that that last thing (taking a dumb idea arguably implicit in a statute and running with it beyond the point the statute actually required be done) is the highly foolish thing the USSC did a quarter-century ago, and that it keeps on doing despite being told repetitively by the primary consumers of its output that it should stop being dumber than Congress requires it to be.
It is of course particularly ironic for Gleeson to be talking here about the mandatory minimum for a kilogram of heroin (and the defendant's good fortune in qualifying for the safety-valve and thus ducking the mandatory minimum) in a case that apparently involved zero actual grams of heroin. Whatever else one might say by way of criticism of the Guidelines' weight-obsessiveness in drug cases, I would put somewhere toward the top of the list the failure to focus on the sort of common-sense distinctions any lay person would draw (in gauging the relative severity of different offenses and thus the relative gravity of appropriate punishment) between a) a gram of actual heroin; b) a gram of an inert and legal substance supplied by the government that some foolish defendant might have mistakenly believed was heroin; and c) a phantom gram of hypothetical heroin that perhaps might ultimately have actually been obtained and delivered if a conspiracy had, contrary to what actually happened, matured into a completed substantive offense.
Posted by: JWB | Jan 30, 2013 6:19:35 PM
Did it ever dawn on you Otis that before criticizing Judge Gleeson for lacking the courage of his convictions a defendant would have to actually make the constructional challenge to the MM or are you suggesting Judge Gleeson should do that on his own so you could be the first online to criticize him for that? If any defendat had made such a challenge I think we would know about it - either because Judge Gleeson gave you father fodder to crtisize him for granting the challenge or the issues was appealed to the 2nd circuit by a loosing defendant.
Posted by: SteveProf | Jan 31, 2013 1:22:01 PM
Your manners could use improvement, but, amazingly, not as much as your typing. There is a "Preview" panel, you know.
Posted by: Bill Otis | Jan 31, 2013 1:57:53 PM
You are right on my typing, Bill, it is harder for me with just one usable arm and hand. How about reponding to my point?
Posted by: SteveProf | Jan 31, 2013 3:27:54 PM
Bill, the irony is you blast me for making ad hominem attacks on you - which is fair and accurate - but when you do the same to Judge Gleeson you don't have the integrity to acknowledge it.
Posted by: SteveProf | Feb 1, 2013 12:46:18 PM
Steve Prof --
Congratulations on the much improved typing, notwithstanding your one-handed status. Must have been a miraculous recovery.
Do you find it curious that I have no interest in your opinion of me? Why should I? You have no status in the profession that I ever heard of, and have never even claimed to have a creditable, much less a distinguished, litigation record. If perchance you do, good for you. Could you provide some citations?
But I'll humor you anyway. Bruce cunningham, one of the more thoughtful and innovative defense lawyers on this blog, initially suggested the usefulness of invoking the Eighth Amendement when a judge is confronted with a mandatory minimum he thinks is grossly out of line. Gleeson could do the same thing, couldn't he? Would he get reversed? You bet, but at least he would have put his money where is mouth is.
Jack Weinstein is willing to, see U.S. v. c. r., and Gleeson could follow suit.
Posted by: Bill Otis | Feb 2, 2013 3:16:46 AM
Thanks for your compassion, Otis. You still miss the point. Perhaps Judge Gleeson, I note you have such little respect for the federal judiciary, or is it just Democratic appointments, that you refer to the by their last name, hasn't ruled on the 8th -amendment issue because no party has raised it. You continue to critisize him for not ruling on issues not before him, and if he did rule on them you would be the first to flap your mouth about why it was wrongly decided. Get a life.
Posted by: Steve Prof | Feb 2, 2013 2:40:12 PM
"Bill, the irony is you blast me for making ad hominem attacks on you - which is fair and accurate..."
But now you want my compassion???
Far out! Been smokin' a joint or two?
"Perhaps Judge Gleeson, I note you have such little respect for the federal judiciary, or is it just Democratic appointments, that you refer to the by their last name..."
PDB, scott tilsen and JWB also referred to him as "Gleeson," not "Judge Gleeson." But you lodge not a word of complaint about that. Aren't we a bit selective?
This is not to mention that Scalia, Alito and other conservative Supreme Court Justices are repeatedly referred to on this site simply by their last names. Not one time have you objected to this. Maybe you're more than a bit selective, ya think?
"...hasn't ruled on the 8th -amendment issue because no party has raised it."
Of course the sentencing hearing hasn't occurred yet, either, and won't for weeks. Try to keep up.
"You continue to critisize him for not ruling on issues not before him, and if he did rule on them you would be the first to flap your mouth about why it was wrongly decided. Get a life."
Is this how you talk in court? If so, I can see why you whistle past my request that you furnish citations to some of your cases (if you actually have any). If you continue to refuse, why should I regard you as having any more professional standing than some belligerent, smart-mouthed and rude middle schooler -- which, to be honest, is what you most closely resemble.
Posted by: Bill Otis | Feb 2, 2013 3:49:58 PM
Good personal attacks, Bill. Bravo. If you actually took the time to read his opinion before you spout off about it you would have learned there is no MM issues in the case. The defendant is safety valve eligible. So there is and will be no MM issue for him to rule on in the upcoming sentencing. Bill, if you are so sure of your credentials i am willing to bet 10.000 dollars and we will each give the money to a Prof. Berman to hold in trust and I I will put my number of federal jury trials, appeals in 6 Circuits and cases in the Supremes and number of sentencings up against your recorded in a heart beat. Put your money where your mouth is .
Posted by: Steve Prof | Feb 2, 2013 6:58:56 PM
1. I didn't need anyone's bet to be forthcoming about who I am and what my background and litigating record are. If you don't have what it takes to be forthcoming on your own, I can't supply it for you, and won't. If you had any victories you were proud of, you'd put the citations up here in a New York minute. Feel free.
2. I see that you don't answer a single question I asked in my last post, but just keep right on keepin' on with your rudeness and evasion. Do you have any answers? What are they?
3. "If you actually took the time to read his opinion before you spout off about it you would have learned there is no MM issues in the case. The defendant is safety valve eligible."
You contradict yourself in record time. There is no such thing as safety valve eligibility UNLESS there is a mandatory minimum issue in the case. Wake up.
4. Onlooker1 asked you to get over your obssession with ad homiem attacks on me, but of course you ignored him. I suppose I should be flattered to be the object of such single-minded attention, but it would be better for the blog -- and frankly, for you -- if you got over the obssession and discussed, instead of me, actual issues, e.g., the death penalty, drug legalization, the effectiveness vel non of incarceration, appeal waivers, legal ethics, or any of a dozen other things that I discuss with the many mature people here like Doug, Kent, bruce, Michael R. Levine and numerous others who, unlike you, aren't mezmerized by what you take to be my Bad Evil Prosecutor's Mind.
Will you please grow up?
Posted by: Bill Otis | Feb 2, 2013 8:53:14 PM
Because the defendant is safety valve eligible the MM does not apply and there is no 8th Amendment MM issue for Judge Gleeson to rule on....so why do you insult Judge Gleeson about not having the courage to decide an issue that cannot possibly be before him in this case? Try for a change and answer that. You won't becuase you lack the ability to admit you are wrong. I don't think you are evil but you certainly lack balance to your positions and seemingly have never met a federal DOJ issue on a position you ever disagree with even when the courts point out they are clearly wrong.
Posted by: SteveProf | Feb 3, 2013 7:46:52 AM
Mr. Prof --
"Because the defendant is safety valve eligible the MM does not apply..."
That is simply false. The MM most certainly does apply. If it didn't, there would be no need to consider safety valve eligibility AT ALL. If what you mean to say is that the MM sentence staring the defendant in the face is very likely to be avoided because Gleeson will use the safety valve, sure, obviously. But that is a very different thing from saying it "does not apply."
"...there is no 8th Amendment MM issue for Judge Gleeson to rule on."
There isn't ANY issue requiring Gleeson's ruling right at the moment. But, since sentencing is weeks away (something you know but decline to acknowledge), the Eighth Amendment argument remains available to the defendant. Indeed, any defense lawyer worth his salt will file a memo arguing that the safety valve applies, but that even if the government asserts or the court finds otherwise, the MM in these circumstances violates the Eighth Amendment.
Gleeson could anticipate (or hold, if it comes to that) that such a defense argument has merit. As I noted (and you also continue to refuse to acknowldege), bruce cunningham has said he successfully used exactly this strategy, employing the Eighth Amendment argument to good effect for his clients in analogous circumstances.
"...so why do you insult Judge Gleeson about not having the courage to decide an issue that cannot possibly be before him in this case?"
Your premise -- that it "cannot possibly be before him in this case" -- is erroneous for the reasons noted. Nor is it insulting for me to suggest that Gleeson build on the logic of everything he said in the excerpts Doug put up.
You, however, are repeatedly insulting and rude to me. Do you have some reason for that?
"Try for a change and answer that."
I answered before and have answered again now. This puts me two answers ahead of anything you have written.
"You won't because you lack the ability to admit you are wrong."
That too is flat-out false. You just like to toss out ad hominem insults. Indeed, as onlooker1 noted, it seems to be the main thing you want to do here. Why is that?
"I don't think you are evil but you certainly lack balance to your positions and seemingly have never met a federal DOJ issue on a position you ever disagree with even when the courts point out they are clearly wrong."
I am more pro-prosecution than the great majority of the commenters here, sure. But far from lacking balance, I PROVIDE balance -- at least a modicum of balance -- to a site that is overwhelmingly pro-defense (as you are).
If a point be made of it, however, I have conspicuously disagreed with a number of things DOJ has done recently, inculding (1) its politically motivated about-face on the retroactivity of the FSA, (2) is foot-dragging, obfuscaiton and double-talk in conveying information to Congress about the Fast and Furious scandal, and (3) again for political reasons, its dropping of the Philadelphia voter intimidation case.
Mr. Prof (if that's your name), it is clear that your participation here is either exclusively or almost exclusively simply undertaken to insult me. You made this clear right from the getgo, when you address me as "Otis" rather than "Bill Otis" or "Bill" or "Prof. Otis," as virtually everyone else on this forum does, whether they agree with me or not (most don't). I don't appreciate your rudeness. There is no reason for it. An adult on a board like this should do better, and you could, but you don't want to, which is the real reason you keep at it.
Unless I am given a sound and respectfully stated reason to do otherwise, I am just going to disengage from you. Sooner or later, I will be tempted to retaliate by also being rude. That is not how I wish to present myself on this board. To an extent, I have, in some previous posts, already started down that unhealthy path, for which I apologize.
The wholesome thing to do is have a respectful, substantive conversation or none at all. And that's where I'll be headed. If you wish to go there too, fine. If not, that's your choice. But I have come to doubt the prudence of my continuing to respond to intentionally rude comments, nor is it the way I choose to spend my time.
Posted by: Bill Otis | Feb 3, 2013 1:45:45 PM
Judge Gleeson has already ruled in his opinion that: "His eligibility for safety valve relief also renders him eligible for a corresponding safety valve adjustment under the Guidelines, resulting in an adjusted offense level of 30, which corresponds to a sentencing range of 97-121 months (8 to 10 years)" This his opinion already reflect application of the SV to the defendnat's guideline range - thus there is no MM issue left. Of course, if that gets reconsidered the 8th Amendment issue could creep back in but there is ni inkling of that so why wereyou critical of the Judge for not reaching an issue where there is simply not a shred of evidence it is still in the case. Why do you do that, Mr. Otis? ALos you keep promising not to take the bait but you always do and by the way you have counter-attacked me quite well so you are hardly above the personal attacks just incredibly self-righteous about it. Typical former prosecutor ...can't get past their self-righteousness now that they have one to bully.
Posted by: SteveProf | Feb 3, 2013 5:17:19 PM
"This his opinion already reflect application of the SV to the defendnat's guideline range - thus there is no MM issue left."
That's what you say now. What you said before is that the MM didn't "apply." But it was precisely because it DID apply that Gleeson had to rule on the applicability of the safety valve.
"Why do you do that, Mr. Otis?"
Why do you keep repeating questions I have answered?
"ALos you keep promising not to take the bait..."
What makes you believe ad hominem baiting is more produtive than just laying out a substantive argument?
Posted by: Bill Otis | Feb 3, 2013 5:43:13 PM
The MM DOES NOT APPLY in the case because the Judge found him SV eligile so I was right and you were dead wrong.YOu took a very cheap shot at Judge Gleeson knowing the MM was not in play. Just admit that but you cant because you are so self-righteous. Bright, articulate, limited one side expereince but self-righteous.
Posted by: SteveProf | Feb 3, 2013 6:54:20 PM
Steve Prof --
It's obvious by now that continuing to go back and forth with you is unproductive, not to mention unpleasant, since you insist on using locutions like "did it ever dawn on you Otis..." and "you would be the first to flap your mouth" and "If you actually took the time to read his opinion before you spout off...," etc., etc.
This was a good one, too: "Typical former prosecutor ...can't get past their self-righteousness now that they have [no] one to bully."
Just to illustrate to you that there is still justice in the world, even for defense bar heroes like Bernie Madoff and Jerry Sandusky (they are heroes, right?) -- and to show you that there are no hard feelings -- I want to leave you tonight with a story of one decidedly "former" prosecutor whose self-righteous bullying would appear to have gotten him what, in your view, he and the rest of us so richly deserve.
Don't hurt your sides giggling!
Posted by: Bill Otis | Feb 4, 2013 1:43:22 AM