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August 30, 2013

Shouldn't ALL federal defendants facing long mandatory minimum sentences seek postponements?

The question in the title of this post is prompted by this notable new federal sentencing piece at ThinkProgess headlined "Judge Postpones Sentencing Until Congress Deals With Mandatory Minimums Reform, Predicts Passage Likely." Here are the details:

In May, a Colorado defendant facing ten years in prison for cocaine possession persuaded a federal judge to hold off on his sentencing, on the possibility that Congress would soon amend federal sentencing law and his prison term would not be quite so draconian. Weighing the likelihood that the the “Safety Valve Act” proposed by bipartisan coalitions in both houses of Congress to give judges more discretion in drug sentencing would pass soon or ever, Judge William J. Martinez concluded that “the balance of the equities and the interests of justice weigh in favor of continuing the date of defendant’s sentence hearing.”

The Court acknowledges that the Act is still in the early stages of legislation and, given the ineptitude of the current Congress, any guess as to whether it will progress and, if so, how quickly, would be pure speculation. However, it is notable that a co-sponsor of the Act in the Senate, Patrick Leahy, is the Chairman of the Senate Judiciary Committee, which increases the likelihood that the Act will at least be brought for a vote in that Committee. Moreover, the Act has bi-partisan support in both the House and the Senate, which significantly increases its chances of passage.

Since then, odds have begun to look even better that the act could pass Congress, if, as Judge Martinez notes, Congress is capable of overcoming its own “ineptitude.” Unlikely interests including the American Legislative Exchange Council and the world’s largest association of correctional officers have endorsed mandatory minimum reform, and U.S. Attorney General Eric Holder brought attention to the problem in an address announcing he would use his own office’s power to limit mandatory minimum sentences.

This week, another defendant in Colorado asked a federal judge to postpone his own sentence. He is facing a statutory minimum of 20 years in jail for conspiracy to distribute cocaine. “Given Mr. Chitty’s age and poor health, such a sentence is likely to translate into a life sentence,” his lawyer argued....

Martinez’s decision to postpone sentencing until November is the latest creative tactic aimed at limiting the burden on both defendants and the prison system of mandatory minimum sentences.

As Martinez points out, defendant Andrew Bartholomew will be held in pre-trial detention until the sentencing regardless, and “[t]he fact that he may end up serving a greater portion of such sentence in pre-trial custody of the United States Marshall rather than post-judgment custody of the Bureau of Prisons is immaterial to the Court.” But it is only a stop-gap measure, and demonstrates his confidence that Congress can accomplish this one, bipartisan aim.

If and whenever a federal defendant is already incarcerated pending sentencing, there would seem to be no obvious public safety risk created by the postponement of final sentencing pending possible (and seemingly likely?) federal sentencing reform.  Moreover, given how extraordinarily difficult it has been for any crack defendants sentenced (even just days or weeks) before the Fair Sentencing Act became law to benefit from lowered statutory minimum sentences, I think all defendants facing mandatory minimum sentencing terms (and competent defense attorneys) would be wise to consider seriously any and every possible legal means to delay for as long as possible their date of sentencing.

I can understand why many federal prosecutors and at least some judges would resist efforts to postpone any scheduled sentencings based merely on the possibility of coming legislative reforms.  But given that all federal prosecutors and most judges have been so resistant to allowing already-sentenced federal defendants to benefit from subsequent legislative reforms in the crack context, I have a difficult time seeing really strong arguments for why federal defendants with reasonable claims that they could benefit from pending federal sentencing bills (especially those defendants who are already incarcerated) need to have their sentences imposed now if there is any real chance that such sentences will be repealed or reformed in the near future.

August 30, 2013 at 11:08 AM | Permalink


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Wouldn't it stand to reason that all convicted felons should be sentenced under the guidelines that were in place at the time that the crime was committed? Going one step further, wouldn't it stand to reason that convicted felons should be sentenced under the guidelines available at the time of there sentencing hearing? I would be in favor of waiting to sentence if the legislation had passed just one house of Congress. It seems to be a slippery slope to allow defendants to postpone sentencing, indefinitely, based on mere speculation.

Posted by: Matt Raby | Aug 30, 2013 12:55:43 PM

As one who supports the reform bills pending, I think the idea of postponing sentencing hearings is ridiculous. Not a single bill has even been the subject of even a hearing yet. And, as everyone knows, it's much easier to kill legislation than pass it. This is a terrible move by judges, though I understand why defense attorneys would try this argument.

Posted by: Thinkaboutit | Aug 30, 2013 3:21:49 PM

"But given that all federal prosecutors and most judges have been so resistant to allowing already-sentenced federal defendants to benefit from subsequent legislative reforms in the crack context..."

Last I heard, simply following long-established law is not "resistance." It is 1 USC 109 (the Saving Statute), not prosecutorial or judicial pigheadedness, that expressly refuses to give retroactive application to the reduction in crack penalties.

The "fairness" argument for retroactive application of new, lesser punishment is not one whit better now than it was more than 100 years ago when Section 109 was adopted.

Should federal prosecutors ignore the Jencks Act? Then why should they ignore any other federal statute? Because lawlessness has become a good thing -- if it benefits hard drug dealers?

Well now THAT'S a principled position!

Posted by: Bill Otis | Aug 30, 2013 4:23:38 PM

This may cause Congress to pass retroactive sentencing relief for non-violent drug offenders. Problem solved.

Posted by: beth | Aug 30, 2013 6:05:18 PM

"Should federal prosecutors ignore the Jencks Act?" Otis, once again that's the wrong question. It's how often they do ? 😄Matt Raby has it right. There may be some situations where legislation is so far down the pipeline that it would be reasonable to grant a continuance but Congress is a long way from that and if the Otis like Neanderthals of Congress get their way nothing will happen to improve the lot of uber harsh and unfair sentencing.

Posted by: Steve Prof | Aug 30, 2013 6:28:49 PM

beth --

"This may cause Congress to pass retroactive sentencing relief for non-violent drug offenders. Problem solved."

I would be overjoyed to see any member of Congress hold a big, fat, widely viewed press conference to say, "Today I am introducing legislation to retroactively reduce the sentences of non-violent traffickers in crack, meth, PCP and heroin. It's clear that basic fairness requires that these people be back in your neighborhood sooner rather than later."

Really, I would love it. As you suggest, it would indeed solve some problems, although not in the way you think.

Posted by: Bill Otis | Aug 30, 2013 6:58:14 PM

Bill, you realize that the Durbin/Lee bill has express retroactivity for crack offenders. So you nearly have your wish.

Posted by: Doug B. | Aug 30, 2013 9:25:03 PM

Doug --

I don't think I have much of my wish at all.

1. I missed the big, fat, widely viewed press conference.

2. I missed where Durbin/Lee has anything to say about retroactivity for three quarters of the drugs I mentioned, to wit, meth, PCP and heroin.

3. I missed Sens. Durbin or Lee reminding the electorate that, if the dealers in these drugs get released early, they'll be coming back to family neighborhoods across the country. Why do you suppose they don't loudly advertise that?

4. Finally, I missed where Leahy/Paul said beans about retroactivity, even though their bill, not Durbin/Lee, is the only one for which hearings have even been scheduled.

Posted by: Bill Otis | Aug 30, 2013 9:56:49 PM

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