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August 15, 2013

How should the US Sentencing Commission's priorities and work be impacted by AG Holder's recent sentencing speech and actions?

The question in the title of this post is prompted in part by the fact that, as I write this post, the US Sentencing Commission is in the midst of a formal public meeting in DC which has as its final agenda item "Vote on Final Policy Priorities for 2013–2014." It is also motivated by the fact that the Attorney General Eric Holder's potent remarks to the ABA earlier this week, covered lots of federal sentencing ground, made the profound claim that our "criminal justice system ... is in too many respects broken," ordered lots of sentencing-focused reforms to the policies and practices of federal prosecutors, and yet did not make a single mention of the U.S. Sentencing Commission (though he did reference a bit of USSC research).

The USSC has usefully posted on this helpful webpage many of the informed and copious comments it received over the summer, and that includes this detailed 18-page letter to the Commission from AG Holder's Department of Justice which actually previewed back in July many of the themes and ideas stressed in AG Holder's speech.  (That USSC page also has posted my own little four-page contribution discussing what I think should now be priorities for the Commission.)

But, of course, all the July comments sent to the US Sentencing Commission came before Holder's big speech a few days ago.  And I am certain my own recommendations to the USSC might have been at least stated somewhat differently if I had the AG's text and policy changes in hand when I authored them.  More broadly, I suspect lots of different folks may have lots of different views about just how the USSC ought to consider and respond to what AG Holder did and said earlier this week.  I would really like to hear some of these views in the comments.

Some recent and older related posts about AG Holder's speech the new federal politics of sentencing:

UPDATE Following its public meeting today, the USSC released this press release which starts this way: "The United States Sentencing Commission today unanimously voted on its list of priorities for the coming year, including consideration of federal drug sentences and continued work on addressing concerns with mandatory minimum penalties."  Here is more from the release:

The Commission set as its top priority continuing to work with Congress to implement the recommendations in its 2011 report on federal mandatory minimum penalties, which included recommendations that Congress reduce the severity and scope of mandatory minimum penalties and consider expanding the “safety valve” statute which exempts certain low-level non-violent offenders from mandatory minimum penalties.

The Commission also set out as an important new priority reviewing the sentencing guidelines applicable to drug offenses, including consideration of changing the guideline levels based on drug quantities.  Drug offenders account for nearly half of all federal inmates, and an adjustment to the Drug Quantity Tables in the sentencing guidelines could have a significant impact on sentence lengths and prison populations.

“With a growing crisis in federal prison populations and budgets, it is timely and important for us to examine mandatory minimum penalties and drug sentences, which contribute significantly to the federal prison population,” Judge Patti Saris, Chair of the Commission, said. “These reviews are key components of the Commission’s ongoing work to further the goals of the Sentencing Reform Act that the federal sentencing scheme and the guidelines be flexible, certain, and fair.”

The Commission noted in its priorities a focus on fulfilling its statutory mandate to work to reduce overcapacity in federal prisons. “The Commission is looking forward to a serious and thoughtful reconsideration of some of the sentencing guidelines which most strongly impact the federal criminal justice system,” Judge Saris said.  “I am glad that members of Congress from both parties and the Attorney General are engaged in similar efforts.”...

The Commission annually identifies policy priorities in accordance with its statutory authority and responsibility to periodically review, analyze, and revise federal sentencing guidelines.  The Commission published tentative priorities and invited public comment in May and received more than 14,000 letters of public comment in response.

August 15, 2013 at 01:57 PM | Permalink

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"It is also motivated by the fact that the Attorney General Eric Holder's potent remarks to the ABA earlier this week...made the profound claim that our 'criminal justice system ... is in too many respects broken.'"

The idea that it's "profound" is baloney, for two reasons.

First, this has been a standard-issue, word processor talking point for years and years among the defense bar and other pro-inmate groups.

Second and more importantly, it's embarrassingly and flagrantly false. By any sane standard, the best measure of the performance of the criminal justice system is how much crime we're getting. We're getting less than since before Doug Berman was born. This is a failure?

What nonsense.

Posted by: Bill Otis | Aug 15, 2013 3:05:32 PM

Bill, I agree on that point and I don't think it helps those of us who want certain changes to act as if the system is "fundamentally" broken. I think the question should be whether we can get the same level of crime control (or more) with certain tweaks and reforms that would also save money. Cost savings will not mean much if crime increases.

Posted by: Thinkaboutit | Aug 15, 2013 4:46:40 PM

You are probably right, Bill, that I may have been a bit to quick with the adjective "profound." I probably should have used "significant" or "notable" (though I already feel as though I use both of those adjectives far too much).

On a broader point, do you think crime rates are the very best metric for whether a criminal justice system is broken? If so, are you focused just on violent/serious crime rates or all crime rates? If so, among violent/serious crime rates, is it primarily homicide and rape that is your chief concern? If so, one could still on this metric assert our system is broken relative to most European and East Asian nations.

And, of course, Holder was not referencing the US crime control system, but rather the US criminal justice system. As you know, lots of folks (including Holder it seems) think the "justice" part of that system matters a lot, too, when assessing whether it is working.

Posted by: Doug B. | Aug 15, 2013 5:01:36 PM

Doug --

"On a broader point, do you think crime rates are the very best metric for whether a criminal justice system is broken?"

They are by far the single best measure, yes. If you asked the man in the street how he thought the criminal justice system was doing, probably the most frequent answer would be, "We've got too darn much crime." The second most frequent answer would be, "Are we getting less crime now or not?"

Do you disagree?

"If so, are you focused just on violent/serious crime rates or all crime rates?"

For myself, serious crime. Holder's references to "violent crime" as the only thing that really counts were amazingly disingenuous. Someone who's been swindled out of his life savings by a fraud has suffered no violence, but has been massively harmed. So is the high school kid who non-violently bought some crystal meth. So is the 13 year-old who very happily, in exchange for a pretty new dress, did porn shots for some pervert.

Holder's sneaky implication that non-violent crime = non-harmful crime is flat-out false, as he certainly knows.

"If so, among violent/serious crime rates, is it primarily homicide and rape that is your chief concern?"

Sure. They are generally considered to be the worst offenses. But the point I made in the preceding paragraph still holds.

"If so, one could still on this metric assert our system is broken relative to most European and East Asian nations."

And one could "assert" that there are alien abductions. Citizens of the USA quite correctly have approximately zero interest in what the crime rate is in Brussels. What interests them is whether, WHERE THEY LIVE, what's the crime level, and is it going up or down.

I don't think any of this is rocket science.

"And, of course, Holder was not referencing the US crime control system, but rather the US criminal justice system."

I kind of thought the two were intimately related.

"As you know, lots of folks (including Holder it seems) think the 'justice' part of that system matters a lot, too, when assessing whether it is working."

And I agree.

But what does justice consist of? Many things, of course. One is convicting the guilty and freeing the innocent, which our criminal justice system does decently well, and probably better than at any previous point in our history.

Another is protecting our citizens from crime (unless one does not consider police work to be part of the criminal justice system, a truncation no normal person would think of). At this task, we are doing better than we have since I was in middle school.

Overall, the AG left the stark impression that our criminal justice system is a disaster. But when that system is making more reliable distinctions between the guilty and the innocent than ever, and protecting our people better than it has in two generations, that impression is misleading to the point of being dishonest.

Posted by: Bill Otis | Aug 15, 2013 5:57:13 PM

15 years for 6 shotgun shells and no gun vs. 5 years for burglary.

The system, if it is not broken, SURE SEEMS THAT WAY.

PS: I wouldn't ask the average man in the street the time of day much less his opinion towards crime. Perceptions and platitudes should not rule the day but the ignorant do through our media, schooling and politicians.

Posted by: albeed | Aug 15, 2013 7:16:52 PM

They need to do something to reduce the numbers in the federal prisons or they are going to have more issues such as the riot at FCI Big Spring last week. When you have 1600 people in a place where the capacity is 900, you are going to have issues with men rubbing elbows together 24/7. This is what happens when you stack them on top of each other and give them nothing but time. There is no way these guys will be ready to reintegrate when their sentence is done. Let's spend our money more wisely and keep people out of prison rather than keep making more laws that send them there!

Posted by: Jill | Aug 15, 2013 8:19:58 PM

The offense levels under 2D1.1 were clearly scaled to correspond with the mandatory mimimum amounts set forth at 21 USC 841. The Commission should untether those offense levels from the MM amounts, and at least pay lip service to the factors set forth at 18 USC 3553.

Posted by: C.E. | Aug 15, 2013 10:51:31 PM

actually Jill if this is true!

"They need to do something to reduce the numbers in the federal prisons or they are going to have more issues such as the riot at FCI Big Spring last week. When you have 1600 people in a place where the capacity is 900, you are going to have issues with men rubbing elbows together 24/7."

that is what 80% above cap. Then they are in violation of the law and a recent USSC decison.

Sure it was talking about calif but they have decided 137% is legal anything above it is cruel and unusual and requires massive releases.

Sounds like time for a federal lawsuit against the febs! for violation of thier own rules!


what am i saying. Shit they do that 1000 a day before lunch now! No fuss no muss! no punishment either!

Posted by: rodsmith | Aug 15, 2013 11:51:32 PM

C.E. --

"The offense levels under 2D1.1 were clearly scaled to correspond with the mandatory mimimum amounts set forth at 21 USC 841. The Commission should untether those offense levels from the MM amounts, and at least pay lip service to the factors set forth at 18 USC 3553."

Why should the Commission make any changes when there has been no change at all in the statutory criteria to which its present standards are scaled?

If and when the statute changes (a big if), that's another story. But the only thing we actually have now is a policy announcement about CHARGING from the executive branch.

I understand the defense bar wants to follow Holder down the path to more carefree sentencing, but Holder won't be there forever. Does the Commission want to set the precedent of following changes in executive branch charging policy, and then be ready to follow through with that same approach when there's a hardline, Republican AG?

I have no problem with the Commission's changing the Guidelines when the statute changes. We want to think twice, however, before encouraging it to change merely when executive policy changes.

Posted by: Bill Otis | Aug 16, 2013 8:54:03 AM

I have a question for the board, a question raised by the discussion between Doug and me.

Is the success of the criminal justice system better measured (1) by whether the 99% of the people not in prison are being victimized by less crime, or (2) by the discontent of the incarcerated >1%?

As I've noted, it's clear to me that the success of the CRIMINAL justice system should be measured principally by its effect on CRIME. I'm quite sure that's what the great majority of taxpayers -- the people who foot the system's bills -- would think as well.

If we judge the system by how inmates feel about it, then OF COURSE it's going to be viewed as "broken." Very few people like getting caught and locked up.

The question is: What sound reasons are there that we should we adopt the latter, inmate-centered outlook IN PREFERENCE TO the former, crime-reduction outlook?

Posted by: Bill Otis | Aug 16, 2013 9:16:43 AM

The big problem is when you melt out sentences that are grossly long, you effectively take the people out of society for so long, that who knows what it would be like if they got to join back in..

Its easy to solve a problem by just eliminating the sources, forever..

It takes some effort to make adjustments so that things still flow in the world. This about where we are...

Psuedo is 5 times that of end product meth
3 strikes and your for drugs - absurd - life sentence for drugs
Young and the ACCA - 7 shotgun shells - 15 yrs
ACCA - stackable episodes, starting with 5 yrs, then 25/episode
Owi's were a violent crime - Nobody bothered to look/see what are the
requirements for a violent crime - Mens Rea - Really
Judge McConnell in the Begay case was a very smart and gutsy man
Duck Hunter gets 30 yrs - started as a felon in possession and escallated to an ACCA trip, then an extra 15yrs all down by a judge alone, no jury in decideing the pipe bombs
How about the fellow in the last 2 weeks, cited as a career Offender
and the error was plainly noted, his would be 3 yr turned into 15 yr
because of finality. Nobody wants to fix it.

These are just a few of the gaping holes or result that happens when the feds take over..

By the way, who has indicated that its the federal system that should be given credit for crime rate falling...The states are doing a great job and have been making sentences much shorter. The feds are too much into beating on their chests, we have the power and money. We can do everything.. Well hows the economy working out for you federal govt. boys

The federal system is way too much on Potential for what could of happened and not enough on what did happen. They bust everything down into the smallest chunk, then start adding points.

Ones past history is so heavily weighted, drug defendents don't have a chance, for what I'm seeing. You slide up past cat 3 or 4 and your in the black diamond area and the slope is all ice, for sure..

When they speak of non violent, it means ever in your life.. Really it needs to be associated with the crime your in for.. This notion of nonviolent carries forward, but it looks at your entire life, not what your in for...When violence is portrayed as the potential and not actual, well this is where we are at now..

Right now the conv qty of psuedo to weed equiv is huge.. Its 5 times that of meth and half of pure or crystal meth.. Crack got it fixed based on racial alone. Meth is upwards of 90% white (removing immigrants) so lets give them a 2 level drop, get on the stick...

3 strikes and your out, for drugs a life sentence.. Its absurd..
Federal goes overboard because they have too much money and so many people to keep busy they keep uping the sentence.
FSA, 18:1 yes, but a 2 level increase for runninga drug house, when its already included in the drug qty. Also 2 level for any aggresive
or threats.. Thats another up for grabs..
Swing batter batter...

Posted by: MidWest Guy | Aug 16, 2013 10:14:00 AM

To be sure, what makes you think the feds should get credit for lowering the crime rate at all...Very egotistical...

Prove that its not the states who have done the better job, by far.

Posted by: MidWest Guy | Aug 16, 2013 10:15:32 AM

MidWestGuy --

"The big problem is when you melt out sentences that are grossly long..."

You're assuming your conclusion.

"...you effectively take the people out of society for so long..."

That's the idea. There are many, many people who deserve to be permanently out of society, see, e.g., Ariel Castro, Whitey Bulger, Dzokhar Tsarnaev, Bradley Manning, just to name four now in the news.

"...that who knows what it would be like if they got to join back in."

The recidivism rate is about 67%, so, over the entire criminal population we have quite a good idea what it would be like.

"Its easy to solve a problem by just eliminating the sources, forever.."

The number of druggies who get sentences of "forever" is approximately zero. The number of possession-only pot smokers who get sentenced to prison AT ALL is also approximately zero. Why such wild exaggerations?

"It takes some effort to make adjustments so that things still flow in the world. This about where we are..."

Things are "flowing in the world" a lot better now with 50% less crime, wouldn't you think?

What takes absolutely no effort, or judgment, is to forget the crime-ridden Sixties and Seventies and head right back to that territory with Eric Holder's play-to-the-audience speech to a room of fat cat lawyers.

Posted by: Bill Otis | Aug 16, 2013 10:39:58 AM

Eric Holders play on MM is going to a net effect of NULL BILL..History cat needs to be 3 points or less with MM.. Get real, most have 25 history points or more...

Explain the psuedo 5 times more than Meth.. Those that get it cooked get a much lower sentence....Its not deterring manuafacturing..

Zero life sentences for drugs.. You are 100% wrong again Bill. There have been lots from our district who got a life sentence, 3 strikes and your out. For drugs alone..

I would think that you would be more up to date on this stuff, Bill. Considering your a Professer and an ex federal G-Man..But so far all I am seeing is fluff, or Potential nothing actual..You need to get bones up Bill, not even syupporting the area that is dear to your heart, 3553
seems to be your life...

Bill you are 100% wrong so far..

We are trying to cross the river, not stay where we are..Get with the program.. You simpkly want people removed from the population forever.

Your Pre Booker Guideline chip that was installed, is showing again Bill. The red light is on. If you press the button you will be able to take input instead of only Output.. Its a 2 way street, you are in a half duplex mode, should be in Full Duplex Bill.. Life is better, so
please turn off the switch to your Pre Booker Guideline Chip...

Remember Bill, Input first (what is the other guy after and why) then output.. Not simply all Output...Turn the switch off.

Posted by: MidWest Guy | Aug 16, 2013 10:59:31 AM

Looks like some people donot want reform ay any costs, can't even talk about it..

My point is America wants their country back...I don't want my kids and their kids to have wade thru rubbish like this...Who knows one could be looking down the barrel of a mess like this ones self..

Yes, we need to send a good nbr away, but not for anything approaching what we are currently doing. The federal System is seriously broken and has been so since 1986. Mr. Holders Policy change isnot going to make much of a dent going forward in itself, but it just may get the USSC and Congress going forward to catch that boat, so we can get to the other side of the river...Step up boys, tickets are on sale as we speak....The current side of the river is obsolete and costing what we can no klonger afford... Medicine moves forward, autos, Smart Phoes, I even here some state facilities want inmates to have Ipad type devices.

All aboard, get on the bus or you will be left behind on this on...

Posted by: MidWest Guy | Aug 16, 2013 2:45:12 PM

Bill:

To put Manning's name with Bulger, Castro, and Tsarnev (who deserve hard sentences, up to and including the DP) is a clever ploy of putting make believe crimes (malum prohibitum) with real crimes (malum in se). He didn't show proper respect with his feral (the way it should be spelled) superiors and deserves the death sentence like the others is a crime in basic thought processes. I always new that you were, and continue to be, a high priest of statism.

I want to know the "NAMES" of Mannings victims, aside of Hillary Clinton and Barack and their followers. I do believe that he committed a crime (as in breaking the law), but bad laws should be broken as the Nurenburg defense of following orders does not hold water in the long run.

As I said before, Manning should receive 89 days in confinement, followed by $1000/day for time already served in excess of that. I don't believe that he would have a "recidivism" rate greater than 1% except what your "justice system" would force on him for basic survival.

Posted by: albeed | Aug 16, 2013 7:45:02 PM

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