Tuesday, May 27, 2014

US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity

I just received a notice from the US Sentencing Commission which highlights that the USSC has some new research that can and should help inform the on-going discussion of whether and how the new reduced drug guidelines ought to be made retroactive. Here is the text of this notice I got via e-mail, which includes links to two important new research documents:

As previously noted, the Commission is seeking public comment on the issue of whether to apply its recent amendment to the drug quantity table retroactively.  The Commission will receive public comment on this issue through July 7, 2014.  Public comment can be emailed to  public_comment@ussc.gov.  To facilitate public comment on this issue, the Commission is making available the following materials:
 
In April, Commissioners directed staff to analyze the impact of retroactivity should the Commission vote to authorize retroactive application of the 2014 drug guidelines amendment.
 
The Commission also released an updated recidivism analysis of crack cocaine offenders who were released early after implementation of a 2007 guidelines amendment which retroactively reduced by two levels the base offense levels assigned by the Drug Quantity Table for crack cocaine.  In this five-year study, these offenders were compared with similarly situated offenders who served their original sentences.

May 27, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 20, 2014

Texas teen facing 5-to-life for selling pot brownies(!) highlights prosecutorial sentencing powers

A drug war and severe sentencing story making the media rounds today emerged via this recent local report headlined "Texas man facing possible life sentence for pot brownies." Here are the basics (which have already been sensationalized a bit in some media accounts I have seen):

A Texas man accused of making and selling marijuana brownies is facing up to life in prison if convicted.  That’s because officials in Round Rock have charged him with a first-degree felony.

It’s a move that the man’s family and attorney outraged. “It’s outrageous. It’s crazy. I don’t understand it,” Joe Lavoro, the man’s father said. Like many familiar with the case, Joe does not understand why his son is in so much legal trouble....

The 19-year-old is accused of making and selling pot brownies.  He’s charged with a first degree felony.  “Five years to life? I’m sorry.  I’m a law abiding citizen.  I’m a conservative. I love my country.  I’m a Vietnam veteran, but I’ll be ****ed.  This is wrong. This is ***n wrong!” the father said.

Lavoro’s lawyer agrees. “I was outraged. I’ve been doing this 22 years as a lawyer and I’ve got 10 years as a police officer and I’ve never seen anything like this before,” Jack Holmes, Lavoro’s attorney said.

The former high school football player has a clean record.  The charge is so severe because the recipe includes hash oil.  That allows the state to use the sugar, cocoa, butter and other ingredients to determine the weight of the drugs.  “They’ve weighed baked goods in this case. It ought to be a misdemeanor,” Holmes said.

KEYE reached out to the district attorney to ask how they’re going to prosecute the case.  Our call has not yet been returned....

Jacob’s father wants what’s right. “If he did something wrong, he should be punished but to the extent that makes sense. This is illogical. I’m really upset, and I’m frightened, I’m frightened for my son,” Joe said.

Jacob Lavoro's father is right to be frightened, in large part because it would seem that his son's fate is now almost entirely in the hands of local prosecutors. Though I do not know all the ins and outs of Texas drug laws, I assume that the local prosecutors can (and probably will) ultimately allow Lavoro to plead to some less charge rather than go to trial on a first-degree felony charge carrying a 5 to life sentence. But the fact that such a severe charge with a big-time sentence is even on the table all but ensures that the local prosecutor can extract a plea on whatever terms strikes his fancy.

May 20, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

Friday, May 16, 2014

New commentary highlights why DOJ's new clemency initiative is not enough of a good thing

Megan Quattlebaum has this notable new commentary up at Huffington Post under the headline "2,785 Petitioners for Clemency Need All of the Mercy Obama Can Give."  It highlights one of many cases not formally covered by the new DOJ clemency guidelines but still subject to what seems like an unfair federal drug sentencing system. Here are excerpts:

Shortly after high school, Michael Keating fell in with a bad crowd in his rural hometown in Missouri, and began experimenting with meth. By the age of 20, he was hooked and using the drug on a daily basis.  He met a man who said that if Michael allowed him to use the woods behind his house to produce drugs, he would give the young addict some of what he made.

Soon thereafter, police officers received information that meth was being made at Michael's home. They searched his property and found a bucket of waste water in the backyard. Although the waste water contained less than a gram of methamphetamine, pursuant to the Eastern District of Missouri's practice (which has been rejected by the majority of federal circuit courts and the U.S. Sentencing Commission) Michael, the sole defendant in the case, was charged as though the entire weight of the water in the bucket -- more than 2,700 grams -- was a marketable drug. He was sentenced to serve more than 11 years in federal prison.

Late last month, the Department of Justice announced a laudable initiative to seek out nonviolent drug offenders with long prison sentences whom it will consider for clemency. The initiative is open to federal prisoners who meet six criteria, including that they have served at least ten years of their sentence and likely would have received a substantially lower sentence if convicted of the same offense today. The goal, according to President Obama, is to help "restor[e] fundamental ideals of justice and fairness" to our penal system by releasing those who "would have already served their time and paid their debt to society" had they been sentenced under current law.

This is a tremendous step forward, but it won't help Michael Keating. He has only served seven and a half years in prison, not ten, as the initiative requires. And the law under which he was sentenced hasn't changed -- in Missouri, possession of the un-ingestible by-product of drug production is still punished just as harshly as possession of the same amount of marketable drugs. Michael's case is emblematic of our need to go even further to right the wrongs of failed sentencing policies.

Still, some who have commented on the initiative seem to view it as too much justice. One group of critics fears the "early" release of convicted felons into our communities. But, as Michael's story demonstrates, we need to take a hard look at individual cases before we assume that those with past convictions pose a present danger....

[W]hile President Obama is right to search out new candidates for sentence mitigation, he shouldn't neglect those meritorious individuals whose cases are already before him. Michael Keating's application has been pending for over two years; it is one of the 2,785 sentence commutation petitions on which the Pardon Attorney has not yet acted. In addition to seeking out new submissions, the President should take a close look at those he has in hand. On the path to saner sentencing policy, we will need all of the mercy that he can give.

May 16, 2014 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, May 14, 2014

How do we reconcile Senator Jeff Sessions' vocal support for the FSA and strong opposition to the SSA?

SessionsThere are many interesting claims and notable contentions in the letter sent by Senators Grassley, Cornyn and Sessions to their colleagues explaining their opposition to the Smarter Sentencing Act (first reported here).  Most notable, I think, are the essential ideas set out at the start and end of the letter: despite a decades-long federal drug war that has grown the size of the federal government and has long included severe mandatory minimums prison terms, we still find ourselves in the midst of a "historic heroin epidemic" which apparently calls for "redoubling our efforts." I believe that the sensible response to ineffective federal government drug policies and practices would be to consider changing some of these policies and practices, not "redoubling our efforts" (and thereby redoubling the size of an apparently ineffective federal government bureaucracy).

But, as the question in the title of this post suggests, I am now especially wondering how Senator Jeff Sessions, who was a vocal supporter of Congress's decision in 2010 to reduce crack mandatory minimum sentences through the Fair Sentencing Act, has now signed on to a letter forcefully opposing a proposal to reduce other drug mandatory minimum sentences through the Smarter Sentencing Act.   Notably, in this March 2010 statement, Senator Sessions stated that he has "long believed that we need to bring greater balance and fairness to our drug sentencing laws" and that the FSA's change to crack mandatory minimums will "achieve needed fairness without impeding our ability to combat drug violence and protect victims." In his words, the FSA's reforms to crack mandatory minimums "strengthen our justice system."

But now, four years later, Senator Sessions has signed on to a letter opposing the Smarter Sentencing Act which claims that this proposal to "reduce sentences for drug traffickers would not only put more dangerous criminals back on the streets sooner, but it would send the message that the United States government lacks the will or is not serious about combatting drug crimes." This letter also asserts that "lower mandatory minimum sentences mean increased crime and more victims."

Critically, the SSA changes federal drugs sentencing laws significantly more than the FSA: the SSA cuts the minimum prison terms for all drug offenses rather than just increasing the amount of one drug needed to trigger existing mandatory prison terms as did the FSA.  Consequently, one can have a principled basis to have supported the FSA's reduction of crack sentences (as did nearly every member of Congress when the FSA passed) and to now oppose the SSA's proposed reduction of all federal drug sentences.  However, back in  2010, Senator Sessions recognized and vocally stated that reducing some federal drug sentences would actually "strengthen our justice system" by helping to "achieve needed fairness without impeding our ability to combat drug violence and protect victims."  I believe (like a majority of the Senate Judiciary Committee) that the SSA would likewise "strengthen our justice system," but Senator Sessions now seem to think it will "mean increased crime and more victims."

Some prior posts about the SSA and debates over federal sentencing reform:

May 14, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (12) | TrackBack

Tuesday, May 13, 2014

Another notable letter expressing opposition to SSA ... on US Senate letterhead

As noted here in this prior post, Bill Otis at Crime & Consequences broke the news yesterday that a significant number of significant former federal prosecutors signed on to a public letter to Senators Harry Reid and Mitch McConnell to express publicly their opposition to any reform of federal drug mandatory minimums.   This morning I discovered that late yesterday Bill Otis put up here at C&C more notable news about opposition to drug sentencng form:  apparently this week, Senators "Chuck Grassley, John Cornyn and Jeff Sessions [have written] an all-colleagues letter explaining why the Smarter Sentencing Act should be defeated." 

(Side note: I use the term "apparently" concerning the report from Bill Otis regarding this letter because his reprinting of the letter at C&C here includes only the contents of the letter without any date or reprinted signatures.  In addition, Bill provide no link to the actual letter in any form, nor can I find any public resource or news media reporting on this letter.  Also, and a check/search of the official websites of the US Senate and of Senators Grassley and Cornyn and Sessions so far has produced no copy of the letter.   I assume this letter really exists, and I hope to be able to provide a link to an official public release of this letter shortly.  But I am finding it now more than a bit peculiar and troublesome that Bill Otis and Crime & Consequences has seemingly become the (un)official reporter of official opposition to the Smarter Sentencing Act.   These developments reinforce my fear that Bill Otis and perhaps some other unnamed lobbyists and partisans are playing a very significant and cloistered role in seeking to derail any new federal sentencing reforms in Congress.)

Notably, the substance of the letter reprinted at C&C echoes a lot of the themes that have been stressed by opponents of any federal sentencing reform, and it restates some of the points forcefully stated by Senator Grassley in this Senate floor speech last month.  But the letter is now the strongest collection of many of the strongest arguments against some (but not all) of the provisions of the Smarter Sentencing Act.  I recommend everyone read the letter, and I hope to be able to provide a link to a copy of the actual document from an official source before too long.

Some prior posts about the SSA and debates over federal sentencing reform:

UPDATE:  I am pleased and grateful that I was able to receive from a helpful reader a pdf copy of the original letter sent by the Senators referenced in this post and reprinted originally at C&C.   Minus the footnotes, here are the first two paragraphs of the letter followed by a downloadable copy:

The nation is in the midst of an historic heroin epidemic that is wreaking havoc in cities and towns from New England to the Pacific Northwest. According to the Drug Enforcement Administration (DEA), the amount of heroin seized at the southwest border has increased nearly 300% from 2008 to 2013, while heroin-overdose deaths have increased by 45%. At the same time, approximately 4.3 million people abuse or are dependent on marijuana. In 2012, almost 32 million people ages 12 and older reported using marijuana within the past year and, in 2013, one out of every 15 high school seniors reported being a near daily user. According to the 2013 National Survey Results on Drug Use, 50% of high school seniors reported having used illegal drugs at some point in their lives.

It is against this grim backdrop that we write to express our concerns with S. 1410, the "Smarter Sentencing Act of 2014," which would benefit some of the most serious and dangerous offenders in the federal system by cutting in half (or more) mandatory minimum sentences for high-level drug trafficking offenses. The proponents of S. 1410 claim that it will reduce sentences for so-called "low-level, non-violent" drug offenders. These terms, as well as the bill's claimed effect, are highly misleading. In fact, nothing in this bill will affect the lowest level federal drug offenders at all.

Download Senators letter to Colleagues on SSA

May 13, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, May 12, 2014

Significant collection of significant former federal prosecutors write to Senators to oppose SSA

Thanks to this new post by Bill Otis at Crime & Consequences, titled "Former Top DOJ Leaders Oppose the SSA," I have learned that a significant number of significant former federal prosecutors — including former US Attorneys General William Barr and Michael Mukasey — have signed on to a public letter to Senators Harry Reid and Mitch McConnell to express publicly their opposition to any reform of federal drug mandatory minimums. The full text of the letter is available at C&C, and here are excerpts:

Because the Senate is now considering revisiting the subject of mandatory minimum penalties for federal drug trafficking offenses, we take this opportunity to express our personal concerns over pending legislative proposals.  We are concerned specifically by proposals that would slash current mandatory minimum penalties over federal drug trafficking offenses — by as much as fifty percent.  We are deeply concerned about the impact of sentencing reductions ofthis magnitude on public safety.  We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines and PCP.  We are aware of little public support for lowering the minimum required sentences for these extremely dangerous and sometimes lethal drugs. In addition, we fear that lowering the minimums will make it harder for prosecutors to build cases against the leaders of narcotics organizations and gangs — leaders who often direct violent and socially destructive organizations that harm people throughout the United States.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking — not drug possession offenses — and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a mandatory minimum sentence.  Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved.  Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player,and cooperates with federal authorities.  This "safety valve," as it's known, has been in the law for almost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down drug conspiracies, large criminal organizations and violent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety.  We have made great gains in reducing crime.  Our current sentencing framework has kept us safe and should be preserved.

In addition to thinking this letter is a pretty big deal, I am now wondering if it represents the final nail in the Smarter Sentencing Act's coffin or instead reveals that the SSA might still have some legs. Based on the lack of action on the SSA over the last few months, I have been assuming this effort at federal sentencing reform was dying a slow death, and this letter from a lot of prominent former prosecutors provides yet another reason and basis for member of Congress to express additional concerns about the sentencing reforms in the SSA. And yet, if the SSA was already in its death throes, I doubt there would have been so much obvious energy devoted to getting all these prominent former prosecutors speaking out against the reforms in the SSA.

All that said, I continue to find the discussion and debate over the SSA an intriguing (and valuable?) distraction from all the other arguably much-more-consequential federal sentencing developments that are afoot. The fact that prominent Tea-party leaders in the GOP like Rand Paul, Mike Lee and Ted Cruz all support significant federal sentencing reform, the fact that state marijuana reforms seem to be continuing apace, the fact that the US Sentencing Commission has voted to lower most of the drug guidelines, the fact that most federal sentences are now outside the guidelines, and the fact that DOJ and Prez Obama are working hard on clemency reform all will be likely impacting federal sentencing realities more than whether or not the SSA is passed by Congress. (This is not to say that the SSA is not important or potentially consequential, but it is to say that a whole host of much broader forces are changing the dynamics of modern federal sentencing policies and practices.)

Some prior posts about the SSA federal prosecutorial perspectives on sentencing reform:

May 12, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, May 09, 2014

Applying strict scrutiny, Louisiana Supreme Court upholds facial constitutionality of criminalizing gun possession with illegal drug possession

Thanks to this post by Eugene Volokh, I see that the Louisiana Supreme Court issued an interesting and important unanimous decision earlier this week upholding a state gun crime statute against a facial state constitutional challenge.  Here is how this opinion in Louisiana v. Webb, No. 2013-KK-1681 (La. May 7, 2014) (available here), starts and ends:

We granted a writ to determine whether a recent constitutional amendment involving a fundamental right to bear arms found in La. Const. art. I, § 11 renders a criminal statute related to the possession of a firearm while possessing illegal drugs, facially unconstitutional.

According to the defendant, because the right to bear arms has been recently enshrined as a fundamental constitutional right, notwithstanding the fact the defendant was allegedly carrying illegal drugs while in possession of a firearm, La. R.S. 14:95(E) is facially unconstitutional.  Essentially, the defendant argues that, even assuming he possessed illegal drugs, because La. R.S. 14:95(E) deals not only with illegal drugs but with firearms, the firearm aspect of the statute cannot survive strict judicial scrutiny, and the entire statute must be declared unconstitutional.

We disagree.  Nothing in the recent constitutional amendment regarding firearms requires dismissal of the criminal charges against the defendant for carrying a firearm while in possession of illegal drugs.....

To promote public safety by curtailing drug trafficking, the state of Louisiana has a compelling interest in enhancing the penalty for illegal drug possession when a person engages in that illegal conduct with the simultaneous while in possession of a firearm. Undeniably, the right to keep and bear a firearm is a fundamental right in Louisiana. However, when a person is engaged in the unlawful conduct of possessing illegal drugs, the person’s own unlawful actions have “qualified his right” to engage in what would otherwise be the exercise of that fundamental right. See Helms, 452 U.S. at 420 (indicating “appellee’s own misconduct [in abandoning his child] had qualified his right to travel interstate.”).

Earlier, we observed that in amending Article I, § 11 of the constitution, the electorate tasked this court with applying a very technical legal test to answer a very practical question. From all aspects, we have found the technical points of the law constitutionally allow the state to make it a crime to possess an illegal drug with a firearm. We can now, therefore, answer this practical question: Is the act of possessing a firearm and illegal drugs so essential to the liberties citizens ought to be able to enjoy in an orderly society that a law to the contrary is unconstitutional? “We have held that the function of the court in construing constitutional provisions is to ascertain and give effect to the intent of the people who adopted it. It is the understanding that can reasonably be ascribed to the voting population as a whole that controls.” Caddo-Shreveport Sales and Use Tax Com'n v. Office of Motor Vehicles, Dept. of Public Safety and Corrections of State, 97-2233 (La. 4/14/98), 710 So.2d 776, 780. Nothing in Article I, § 11 of the constitution informs us that the electorate, whose intent is ultimately the intent that governs, believed that possessing firearms with illegal drugs meets the electorate’s expectations of a society whose hallmark is ordered liberty.

We, therefore, affirm the ruling of the district court, finding La. R.S. 14:95(E) is not unconstitutional, and that nothing in Article I, § 11 of the constitution requires the charges against the defendant to be quashed. This case is remanded to the district court for further proceedings.

May 9, 2014 in Drug Offense Sentencing, Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, May 07, 2014

Elderly coke dealer, on his 90th birthday, gets 3-year prison sentence

As reported in this local piece, headlined "90-Year-Old Drug Mule Sentenced To 3 Years For Part In Major Drug Scheme," a unique drug dealer got a pretty standard drug sentence in federal court in Michigan today. Here are the details:

Leo Sharp learned that he would spend three years in federal prison for his role in a major drug operation in which prosecutors say Sharp transported more than 2,000 pounds of cocaine to across the country before being caught in Michigan.  Sharp was running bricks of cocaine from Tucson, Arizona, to Detroit when he was pulled over near Chelsea, 60 miles west of Detroit, after making a bad lane change in 2011.

Outside the courthouse Sharp cried that he was “heartbroken” and didn’t feel that his age had anything to do with the length of his prison sentence. When a state trooper approached, Sharp was upset and declared, “Just kill me and let me leave this planet.”...

Prosecutors were recommending a five-year prison sentence — urging the judge to look beyond Sharp’s age and health issues and lock him up for delivering more than a ton of cocaine.  Assistant U.S. Attorney Christopher Graveline, noted that there’s video of Sharp  — known as “grandpa” and “old man” — joking and laughing with others charged in the drug conspiracy.

Graveline said Sharp received at least $1.25 million from his handlers for hauling more than 2,750 pounds of cocaine to Michigan from the Southwest in 2010 and 2011.  He’s one of 19 people under indictment in a case connected to Mexico’s Sinaloa drug cartel. Graveline said the cartel “literally flooded the streets of southeast Michigan and Fort Wayne, Indiana, with kilograms of cocaine.”

Sharp, of Michigan City, Indiana, had hoped to stay out of prison.  Defense attorney Darryl Goldberg said Sharp has dementia and other issues, and would be a burden for the prison system. “Of course I respectfully disagree with the judge’s sentence but she is a very experienced jurist and I hope that Leo can survive the sentence,” said Goldberg....

During sentencing Judge Nancy Edmunds said Sharp was in the middle of a huge operation and transported cocaine six different times and was paid more than a million dollars.

Recent related post:

May 7, 2014 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (6) | TrackBack

Monday, May 05, 2014

New York Times op-ed spotlights enduring flaw with modern drug sentencing

Today's New York Times has this notable new op-ed authored by Mark Osler under the headline "We Need Al Capone Drug Laws."  Here are highights:

After a ruinous 30-year experiment in harsh sentences for narcotics trafficking resulting in mass incarceration, policy makers are having second thoughts.  Many states, including Texas, have reformed their laws to shorten sentences.  Congress is giving serious consideration to the Smarter Sentencing Act, which would do the same. The United States Sentencing Commission has just adopted a proposal to revise federal guidelines.

And most recently, Attorney General Eric H. Holder Jr. announced that President Obama intends to use his executive pardon power to release hundreds or even thousands of federal prisoners with narcotics convictions (I am on a committee to train lawyers for the project).  Something like that hasn’t happened since President John F. Kennedy granted clemency to more than 200 prisoners convicted of drug crimes.

Unfortunately, none of this addresses a very basic underlying problem: We continue to use the weight of narcotics as a proxy for the culpability of an individual defendant, despite this policy’s utter failure.  If a kingpin imports 15 kilograms of cocaine into the country and pays a trucker $400 to carry it, they both face the same potential sentence.  That’s because the laws peg minimum and maximum sentences to the weight of the drugs at issue rather than to the actual role and responsibility of the defendant.  It’s a lousy system, and one that has produced unjust sentences for too many low-level offenders, created racial disparities and crowded our prisons....

Some laws create remarkably low thresholds for the highest penalties.  For example, my home state of Minnesota categorizes someone who sells just 10 grams of powder cocaine (the equivalent of 10 sugar packets) as guilty of a first-degree controlled-substance crime — the most serious of five felony categories.  There is no real differentiation between the most culpable wholesaler and an occasional street dealer.  

The problem with recent legal reforms is that they don’t dispose of this rotten infrastructure.  In 2010, Congress passed the Fair Sentencing Act, which changed the ratio between crack and powder cocaine for sentencing purposes from 100-to-1 (meaning the same sentence applied to 100 grams of powder cocaine and to 1 gram of crack) to 18-to-1.  

What the Fair Sentencing Act didn’t do is change the basic weight-centric centric focus that has filled our prisons with narcotics convicts. There were 4,749 such prisoners serving federal time in 1980, before the harshest weight-based standards were implemented. As of 2013, that number was 100,026. As for the drugs themselves, they’re still here....

A better measure of culpability would be the amount of profit that any individual took from the operation of a narcotics ring. Because narcotics conspiracies are nothing more or less than a business, they operate like any other business. The people who have the most important skills, capital at risk or entrepreneurial abilities take the most money. Statutes and guidelines should be rewritten so that profit thresholds replace narcotic weight thresholds. Only then will mules and street sellers properly face much shorter sentences than real kingpins.

This would, of course, create a new challenge for prosecutors and investigators, who would have to prove the amount of profit made by an individual defendant. It wouldn’t be as easy as snatching up mules and street dealers. But then “easy” and “justice” rarely rest comfortably with each other.

May 5, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (4) | TrackBack

Thursday, May 01, 2014

You be the federal sentencing judge: what prison term for massive drug courier ... who is a 90-year-old WWII vet?

Old guyThis remarkable Detroit Free-Press article reports on a remarkable drug criminal facing a remarkable federal sentencing next week.  The piece is headlined "Convicted drug mule to spend 90th birthday in court facing sentencing," and here are the details:

An Indiana senior citizen will celebrate his 90th birthday in bizarre fashion Wednesday: getting sentenced in federal court for hauling cocaine across the country for a Mexican drug cartel. Convicted drug mule Leo Earl Sharp, though, is hoping to stay out of prison....

Sharp’s lawyer says prison is no place for his client: a frail, decorated World War II veteran who suffers from dementia.  “Labeling a war hero like Mr. Sharp a federal felon and forever tarnishing his reputation is sufficient punishment in itself; a sentence of imprisonment would be greater than necessary,” defense attorney Darryl Goldberg wrote in court documents....

The U.S. Attorney’s office has not yet filed a sentencing recommendation, but is expected to do so before Sharp’s sentencing before U.S. District Judge Nancy Edmunds. In a previous court document — Sharpe’s plea agreement — prosecutors recommended a five year prison sentence.

Sharp, of Michigan City, Ind., was arrested in 2011 during a traffic stop near Ann Arbor, where he was busted with nearly $3 million worth of cocaine in his pickup. Authorities eventually learned that the elderly pickup driver was a courier for a massive drug ring that ran a cocaine pipeline between Mexico and Detroit for several years, according to an indictment that charged 18 defendants total....

In October 2013, Sharp pleaded guilty to conspiracy to posses with intent to possess and deliver cocaine.  Under the terms of his plea agreement, the sentencing guidelines call for a 168-210 month prison sentence, although prosecutors said they would recommend five years. Sharpe’s lawyer has requested home confinement.

“When you are living on Social Security for your entire income, you are really in need of money and that’s why I did what I did at first. I didn’t think about the consequences of my actions and I made a tremendous mistake.  I should not have gotten involved and I feared for my life and my family’s lives and felt I had no choice,” Sharp explained in a report to a U.S. probation officer. Sharp also explained that he “agreed to transport money in exchange for a fee … and was later asked to carry drugs.” When he told his cohorts that he “wasn’t going to do that anymore, they put a gun to (his) head and threatened (him) and said they would kill (his family.)”...

According to the indictment, Sharp was a drug courier for two years, delivering roughly 670 kilograms of cocaine to conspirators in Michigan between 2009 and 2011. Shipments of cocaine would be received at the Arizona-Mexico border, and then driven to Michigan, where members would meet at a warehouse in Wyandotte and unload the drugs for distribution. The drug organization, records show, is a part of an international drug cartel based in Sinaloa, Mexico, and helped distribute between 100 and 300 kilograms of cocaine per month in metro Detroit from 2008 through 2011.

May 1, 2014 in Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (7) | TrackBack

DEA head tells Senate DEA supports "scientific research efforts" concerning marijuana

As reported in this Washington Post article, headlined "DEA chief says marijuana-trafficking spiking in states near Colorado," the head of the Drug Enforcement Agency testified in Congress yesterday and expressed concerns about marijuana legalization and expressed support for mandatory minimum drug sentences:

Administrator Michele Leonhart said the DEA is troubled by the increase in marijuana trafficking in states surrounding Colorado and worries that the same phenomenon could be repeated around Washington state, where recreational marijuana is expected to be sold legally soon. In Kansas, she said, there has been a 61 percent increase in seizures of marijuana from Colorado.

Speaking to the Senate Judiciary Committee, Leonhart said the softening of attitudes nationwide about the risk of marijuana has confirmed some of the agency’s fears. “The trends are what us in law enforcement had expected would happen,” she said. “In 2012, 438,000 Americans were addicted to heroin. And 10 times that number were dependent on marijuana.”...

DEA officials have expressed frustration privately about the legalization of marijuana by Colorado and Washington state, where local officials consider the change an opportunity to generate tax revenue and boost tourism. But in January, James. L. Capra, the DEA’s chief of operations, called marijuana legalization at the state level “reckless and irresponsible,” and warned that the decriminalization movement would have dire consequences. “It scares us,” he said during a Senate hearing. “Every part of the world where this has been tried, it has failed time and time again.”...

On Wednesday, Leonhart spoke about why she thinks marijuana is dangerous. She said that marijuana-related emergency-room visits increased by 28 percent between 2007 and 2011 and that one in 15 high school seniors is a near-daily marijuana user. Since 2009, she said, more high school seniors have been smoking pot than smoking cigarettes....

Leonhart also spoke out in support of mandatory minimum sentencing for drug crimes, an issue Holder has highlighted recently as part of his initiative to reduce prison crowding and foster equity in criminal sentencing. Holder has instructed his 93 U.S. attorneys to use their discretion in charging low-level, nonviolent criminals with offenses that impose severe mandatory sentences.

Leonhart, in response to a question from Sen. Charles E. Grassley (R-Iowa), said: “Having been in law enforcement as an agent for 33 years [and] a Baltimore City police officer before that, I can tell you that for me and for the agents that work at the DEA, mandatory minimums have been very important to our investigations. We depend on those as a way to ensure that the right sentences equate the level of violator we are going after.”

Though the press coverage of the DEA chief's remarks suggest she is continuing the standard drug war posture of all modern administrations, her prepared testimony (available here) included thes three notable sentences about the DEA's support for medical marijuana research:

The National Institute on Drug Abuse (NIDA) and other components of the National Institutes of Health are conducting research to determine the possible role that active chemicals in marijuana, like tetrahydrocannabinol, cannabidiol, or other cannabinoids may play in treating autoimmune diseases, cancer, inflammation, pain, seizures, substance use disorders, and other psychiatric disorders.  DEA supports these, scientific research efforts by providing Schedule I research registrations to qualified researchers.  In fact, DEA has never denied a marijuana-related research application to anyone whose research protocol had been determined by the Department of Health and Human Services to be scientifically meritorious.

Perhaps these kinds of statements from DEA in support of "scientifically meritorious" medical marijuana research are not uncommon.  Still, these sentences struck me as notable and telling in the context of the DEA chief's many other anti-marijuana-legalization comments.

May 1, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, April 29, 2014

Judge Paul Friedman identifies drug defendant who should benefit from Clemency Project 2014

I am intrigued and pleased to have learned that this afternoon District Court Judge Paul Friedman issued an opinion in US v. McDade, No. 13-1066 (D.D.C. Apr. 29, 2014) (available for download below), which in part responds to the Justice Department's recent announcements about its new clemency initiative.  I urge all those wondering about the types of defendants and cases that the new clemency initiative might help to read Judge Friedman's new McDade opinion in full; here is a snippet that provides a sense for why:

On February 25, 2002, after a ten-day trial, a jury found defendant Byron Lamont McDade guilty of conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine. Most of the witnesses at trial were his former co-defendants or others involved in the conspiracy who had negotiated pleas with the government involving cooperation and testimony. In fact, McDade was the only one of those charged in this multi-defendant case to have proceeded to trial.  Regrettably, pursuant to the then-mandatory pre-Booker sentencing guidelines, the Court was required to sentence McDade to 324 months in prison, a sentence which the Court described at the time as “much more than sufficiently punitive.”...

At the time the Court sentenced Mr. McDade nearly twelve years ago, on May 31, 2002, he was a 34-year old married man with two young children, one of whom is disabled.  He was a high school graduate who had been employed more or less steadily as a loader for United Parcel Service, as an apprentice for a plumbing company, as a self-employed operator of a company that provided transportation to the handicapped, and as a sanitation truck driver.  He was described by his wife, a hair stylist who suffers from a heart murmur, as a good father to their children and to her son by a prior relationship.   Before his current conviction, Mr. McDade had one prior misdemeanor conviction for which he was ordered to pay a ten-dollar fine. Id. at 10-11. For the instant offense, he faced a ten-year mandatory minimum sentence and, at Offense Level 41, Criminal History Category I, a pre-Booker guideline sentence of 324 months to life.....

In denying Mr. McDade’s first motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, the Court [noted that] ... had Mr. McDade not exercised his constitutional right to a jury trial and instead pled guilty, the likely sentence under even a mandatory Guideline regime would have been approximately 168 months, approximately half the sentence the Court was required to impose after Mr. McDade was found guilty at trial.  [This Court also then noted that] had the Sentencing Guidelines been advisory in 2002, or if Booker were retroactive now, the Court would vary substantially from the Guideline sentence of 324 months....

Earlier this year, Deputy Attorney General James M. Cole previewed a new effort on the part of the Department of Justice to identify individuals who are potential candidates for executive clemency and sentence commutations and whom he hoped, with the help of volunteer lawyers and bar associations, would be encouraged to prepare clemency petitions to the Department of Justice.  He said at the time: “For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair. These older, stringent punishments, that are out of line with sentences imposed under today’s laws, erode people’s confidence in our criminal justice system.”  Then, just last week, Deputy Attorney General Cole formally announced a new initiative to encourage qualified federal inmates to petition to have their sentences commuted or reduced by the President, an initiative that will have the assistance of numerous volunteer attorneys and groups under the umbrella Clemency Project 2014.  He noted that the initiative is not limited to crack offenders, but to “worthy candidates” who meet six specific criteria.  He stated that this clemency initiative “will go far to promote the most fundamental of American ideals – equal justice under law.” 

The Court continues to believe that Byron McDade is a prime candidate for executive clemency.  The sentence this Court was required to impose on Mr. McDade was unjust at the time and is “out of line” with and disproportionate to those that would be imposed under similar facts today.  While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the President is not.  The Court urges Mr. McDade’s appointed counsel to pursue executive clemency on Mr. McDade’s behalf so that justice may be done in this case.

Download McDade opinion

April 29, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, April 22, 2014

Short federal sentence for cocaine offense when "'Breaking Bad' meets 'Walter Mitty'"

32-waltermittyA remarkable federal drug sentencing case culminated in a short prison sentence as reported in this local article headlined "'Breaking Bad' meets 'Walter Mitty' in Alachua County contractor's cocaine sentencing."  Here are the details:

The judge said the criminal case seemed to be more like a movie than an actual court proceeding. But on Monday the strange saga of an Alachua County man who went to Puerto Rico to try and dig up 11 pounds of cocaine ended in a short prison sentence and a pledge to volunteer with Habitat for Humanity.

U.S. District Judge Timothy Corrigan sentenced Rodney Hyden, 56, to 60 days in prison, one year of home detention and five years of supervised release.  In imposing the sentence, Corrigan said it was one of the most difficult decisions he’d had to reach in a long time.  He said he’s struggled with what the proper sentence should be.

Hyden, who owns his own construction company, will also be required to volunteer an average of 20 hours a week at Habitat for Humanity during his home detention and supervised release and will also be expected to build a Splash Park for the city of Newberry, where he lives.

Hyden could have faced 10 years in prison, but prosecutors waived the minimum mandatory laws and said the crime didn’t mandate a sentence that long.  The head of Habitat and the mayor of Newberry also wrote letters to Corrigan saying they were comfortable with Hyden providing his services.

Defense Attorney Mark Rosenblum argued that his client should be let off without jail time and required to do the community service with Habitat for Humanity and Newberry. Federal prosecutor Tysen Duva asked for 30 months of prison.  “Rodney Hyden is a good man who made a bad mistake,” Rosenblum said. “Luckily for him, the government was represented by an honest prosecutor and the case was presided over by an extremely fair judge.”

A neighbor of Hyden’s in Newberry told him that when he lived in Puerto Rico he found cocaine washed up on the beach and buried it near the trailer where he lived at the time. Hyden talked to several people about getting the cocaine, but he didn’t know that one of those people, Daniel Jimenez, was working as an informer for the Alachua County Sheriff’s Office.

Two undercover agents posing as narcotics traffickers met with Hyden and offered to help him get the drugs to Northeast Florida.  Hyden went to Puerto Rico twice seeking the drugs, but couldn’t find them.  He ended up giving a treasure map of where he thought the drugs might be to the undercover agents.  Police found the drugs, which had degraded to the point of being worthless, and arrested Hyden.

During the trial, Rosenblum argued that his client had been entrapped by the government and never would have gone after the drugs if people working for the government hadn’t encouraged it.  Jurors rejected that argument.

Hyden was convicted of a serious crime, but at the same time there was no real victim in the case, and even if he’d managed to retrieve the drugs he could not have sold them because they had degraded so much, Corrigan said.  Corrigan said the seriousness of the drug crime mandated some prison time, but not a lot.

The judge also dropped some pop culture references. “If this case wasn’t so serious it would make a great movie,” Corrigan said.  “It’s a combination of ‘Breaking Bad’ and the ‘Secret Life of Walter Mitty.’”

April 22, 2014 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack

Sunday, April 20, 2014

"WWJD? Reform Alabama's horrible criminal sentencing laws"

Jesus_in_prisonThe title of this post is the headline given to this provocative commentary authored by Sue Bell Cobb, a retired Alabama Supreme Court Chief Justice. Here are excerpts:

As the former Chief Justice of Alabama, I am proud to have devoted my career to the cause of justice in our state. But as a lifelong United Methodist, it shames me to know that if Jesus came to our state today, he would chastise me and every other Alabama Christian for our nearly complete silence on a terrible injustice taking place under our noses and in our names every day: ineffective, absurdly harsh sentencing laws that lead to overcrowded, dangerous prisons that breed more crime.  What would Jesus do? Fix our criminal sentencing laws.

Our shame should be all the greater because we cannot pretend that we do not know the truth. In poll after poll, we say that we understand that there are cheaper and more effective ways to punish non-violent, drug-addicted offenders than by locking them up in prison.  Virtually every Alabama newspaper has reported on our state's horrendously overcrowded prisons.

It is undisputed that no state in the nation has prisons as over-crowded and underfunded as ours.  Alabama prisons have almost twice the number of inmates they were designed to hold and far too few correctional officers guarding them.  They are terrible, deadly violent places that truly decent people would not tolerate in our midst.

The Alabama Legislature recently completed another legislative session and did nothing to remedy this deplorable situation. Why did the legislature fail to act?  A lack of leadership is an easy answer, but it is also a tremendous cop out.  As Christians, do we need politicians to show us the way? No.  In Alabama today and everywhere, except for Senator Cam Ward of Shelby County, politicians are followers, not leaders.  It falls to us, as people who profess to be passionate about true, meaningful justice to be visible and vocal on this issue.  We must lead our politicians onto the path of justice.  Thus far, we have failed to do so....

Every dollar we misspend and waste on inappropriately locking up a non-violent offender, is a dollar that is desperately needed for prevention of child abuse and neglect, mental health services, education, parks, libraries healthcare and our deteriorating infrastructure.  Prevention programs are much more cost-effective with lasting benefits that improve the quality of life for everyone.

By locking up low risk, nonviolent offenders with higher risk offenders, we are making ourselves less safe.  There are less expensive, more effective community alternative punishment programs which appropriately punish an offender without sending them off to prison.  Model drug courts, the replication of which was a major priority of mine during my tenure as Chief Justice of the Alabama Supreme Court, HOPE courts, mental health courts, expanded community corrections and work release, intensive probation services, and evening juvenile reporting centers are examples of ways to hold offenders accountable, yet also try to fix the issues that initially lead them to a life of crime.

It is the Easter season, and Christians like me will fill our churches to hear the story of a prisoner who suffered a terrible and unjust punishment.  Our hearts will swell with shame over the sacrifice that Our Lord made for us -- "while we were yet sinners."  We will rededicate ourselves to serve Him.

And then we will go home and say and do nothing about the thousands of injustices in Alabama courts and prisons carried out in our name every day.

As I contemplate what that "prisoner" from 2,000 years ago would say about those prisons, I am inspired to act.  And I tremble in fear about how He will judge me if I do not.

April 20, 2014 in Drug Offense Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Gov Chris Christie talking up drug sentencing reform as a pro-life commitment

As reported via this entry at Mediate, last week New Jersey Governor Chris Christie connected drug sentencing reform to another social issue frequently stressed by Republican officials and politicians. Here are the interesting details:

New Jersey Gov. Chris Christie delivered a message to his fellow members of the Republican Party on Thursday: being pro-life means reforming America’s drug laws and criminal sentencing procedures.  Christie has long advocated for drug treatment programs as a means of reforming the country’s prison system, but Christie took a new tactic on Thursday when he framed that advocacy as a pro-life argument.  

“I’m pro-life, and I believe strongly in the sanctity of life,” Christie told an audience in Jersey City on Thursday.  Addressing his fellow Republican governors, Christie said that “it’s great to be pro-life, but you need to be pro-life after they get out of the womb, too.”

“If we believe in the sanctity of life, then we need to believe in how life is precious for every moment that God gives us,” the governor continued. “If, in fact, that we believe life is precious — and I do — then the life of the drug-addicted teenager who has been arrested for the sixth time is just as precious as the life of any one of my children.”

Christie said that conservatives don’t want violent people on the street, and there is a “class of people” who deserves to be incarcerated, but there is another “class of people” who will benefit more from “help” than punishment.  “I don’t believe this is a conservative, or moderate, or liberal issue,” Christie concluded. “I don’t believe this is a Republican or Democrat issue. Because, let me tell you, I know as many drug-addicted Republicans as I know drug-addicted Democrats.”

Some older and recent posts on the "new politics" of sentencing reform:

April 20, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, April 15, 2014

Prez Obama commutes 15-year sentence for marijuana offender down to 11.5 years

Build-itIf NYU Law builds it, the President's counsel will come ... and, it seems, the President will act!  

With apologies for the bad "Field of Dreams" reference, I am not sure how else to react to the news I have got via this press release while I am sitting in the audience excited to be at this amazing on-going NYU conference on "Mercy in the Criminal Justice System: Clemency and Post-Conviction Strategies" with the keynote speaker White House Counsel Kathryn Ruemmler.   I was hoping and expecting the White House Counsel Kathryn Ruemmler would be making news via her afternoon keynote, but her boss beat her to the punch as the full text of the press release reveals:

Today, President Barack Obama granted clemency to the following individual:

• Ceasar Huerta Cantu, also known as Cesar Huerta Cantu – Katy, Texas

Offenses: Conspiracy to possess with intent to distribute marijuana; money laundering (Western District of Virginia)

Sentence: 180 months’ imprisonment (as amended), five years’ supervised release (May 11, 2006)

Commutation Grant: Prison sentence commuted to 138 months’ imprisonment

Thanks to the wonderful internet, I found this 2255 dismissal order concerning the Cantu case which suggests that Cantu received an erroneous initial sentence that he was unable to get changed via traditional legal means. But it is unclear from this order alone whether this sentence calculation error provides the basis and reason for this notable commutation.  A quick read of the order does suggest that the reduction from 180 to 138 appears to reflect precisely the sentence Cesar Huerta Cantu would have and should have gotten (after getting substantial assistane credit) had his initial sentence been calculated properly. 

Live-blogging UPDATE:  In her keynote speech at this NYU conference, White House Counsel Kathryn Ruemmler is talking up this grant and says that it shows that clemency can serve as a "fail-safe" for correcting errors that cannot be corrected by other means.

WH Counsel Ruemmler has announced that DOJ via BOP is going to alert federal prisonsers about the on-going clemency initiative previously announced by Deputy AG Cole.

MSM UPDATE:  Lots of press reports are now providing context for this grant such as this AP article headlined "Obama commutes sentence made longer by typo."

April 15, 2014 in Clemency and Pardons, Drug Offense Sentencing, Marijuana Legalization in the States, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, April 14, 2014

House Judiciary Chair suggests Smarter Sentencing Act still facing uphill battle on the Hill

DownloadCQ News has this important new article on federal sentencing reform developments in Congress under the headline "Goodlatte: Don't 'Jump to Conclusions' on Mandatory Minimums." Here are excerpts:

House Judiciary Chairman Robert W. Goodlatte, R-Va., is not convinced that Congress should scale back mandatory minimum drug sentences, even as the Obama administration and a bipartisan coalition in the Senate step up their efforts to do so.  Goodlatte, speaking to reporters from CQ Roll Call and Politico during a pre-taped interview that aired Sunday on C-SPAN’s “Newsmakers” program, said the severity of drug sentences “is a legitimate issue for us to be examining.”

He noted that his committee has set up a task force to review mandatory minimum sentences and many other aspects of the federal criminal code, and he did not rule out taking up a bipartisan, administration-backed Senate proposal (S 1410) that would reduce some minimum drug penalties by as much as 60 percent.  The Senate could take up the proposal in the coming weeks after the Judiciary Committee approved it 13-5 in March.

Despite signaling his willingness to consider sentencing changes, Goodlatte said, “I want to caution that we shouldn’t jump to conclusions about what is right and what is wrong with the law yet.” Asked whether he believes that some federal prisoners are facing dramatically long sentences for relatively minor drug crimes — a claim frequently made by supporters of an overhaul — Goodlatte expressed skepticism.

“If you’re talking about 25- or 30-year sentences, you’re talking about something that the judge and the jury found appropriate to do above mandatory minimum sentences, because those are five-year and 10-year sentences,” he said.  Regarding the mandatory minimum sentences themselves, he said, “you’ll find that the quantities of drugs that have to be involved are very, very large.”

In the case of marijuana possession, for example, it takes “hundreds” of pounds of the drug to trigger a five-year mandatory minimum penalty and “thousands” of pounds to trigger a 10-year mandatory minimum penalty, Goodlatte said.  “With other drugs that are very potent in much, much smaller doses, those quantities are much, much lower,” he said. “But if you look at it from the standpoint of what someone has to be engaged in dealing, you’re talking about large quantities before you get those minimums.”

The Senate bill, which is supported by conservatives including Ted Cruz, R-Texas, Mike Lee, R-Utah, and Rand Paul, R-Ky., would reduce 10-year minimum sentences for certain drug crimes to five years, while reducing five-year minimum sentences for other drug crimes to two years.  If those drug crimes result in “death or serious bodily injury,” mandatory minimum penalties would be slashed from their current 20 years to 10 years.  In all of the penalties being reconsidered, mandatory sentences are triggered based on the quantity of drugs involved in a particular crime....

Molly Gill, government affairs counsel for the advocacy group Families Against Mandatory Minimums, said in an e-mail that the quantity of drugs involved in a crime is “bad proxy for culpability” and suggested that it should not be used as the basis to defeat proposed changes to fixed drug sentences....

She noted that the independent U.S. Sentencing Commission, which sets advisory sentencing guidelines for the federal judiciary, found in a 2011 study that “the quantity of drugs involved in an offense is not closely related to the offender’s function in the offense.” So-called “drug mules,” for example, physically transport large quantities of narcotics for others but are not themselves major traffickers or kingpins, Gill said.

Even as Goodlatte showed skepticism about lowering mandatory drug sentences, Attorney General Eric H. Holder Jr. kept up his call for Congress to take action on the Senate proposal, known as the Smarter Sentencing Act.

After the Sentencing Commission approved its own changes in drug sentencing guidelines last week — a move that is expected to reduce some drug offenders’ penalties by an estimated 11 months — Holder urged Congress to follow up with more sweeping, statutory changes. “It is now time for Congress to pick up the baton and advance legislation that would take further steps to reduce our overburdened prison system,” he said in a statement.  “Proposals like the bipartisan Smarter Sentencing Act would enhance the fairness of our criminal justice system while empowering law enforcement to focus limited resources on the most serious threats to public safety.”

The full video of the interview with Rep. Goodlatte is available at this C-Span archive, and sentencing fans will want to cue the video up to a little after the 10 minute mark. Not long after that point, there is a discussion of federal marijuana policies and then the interview turn to drug sentencing generally. A review of the whole segment makes me a bit less pessimistic about the possibilities of federal sentencing reform making it through the House of Representatives. But being a bit less pessimistic is hardly being optimistic.

Some prior posts about federal prosecutorial perspectives on sentencing reform:

April 14, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, April 11, 2014

Was it "disrespectful" to the judiciary (or, in fact, quite helpful) for AG Holder to order prosecutors not to oppose application of pending drug sentencing guideline reduction?

The question in the title of this post is prompted by this National Review article, headlined "Judge: Holder ‘Disrespected’ Judicial Branch In Sentencing Change," about a verbal skirmish that emerged during yesterday's US Sentencing Commission meeting to approve formally a small reduction in all federal drug guideline sentences (basics here).  Here are excerpts:

The United States Sentencing Commission Thursday unanimously approved an amendment to revise sentencing guidelines for non-violent drug offenders, but not before one commissioner accused Attorney General Eric Holder of having “disrespected” the judicial branch’s role in sentencing reform.

“I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” Judge William Pryor, Jr. said at a public hearing in Washington. “That unprecedented instruction disrespected our statutory role, ‘as an independent commission in the judicial branch,’ to establish sentencing policies and practices under the Sentencing Reform Act of 1984.”...

In August, Holder revealed his “Smart on Crime” initiative, which includes recommendations for reduced sentencing, without consulting with the Sentencing Commission — an independent agency within the judicial branch tasked with setting such policies.  Although the sentencing reforms themselves were not controversial, Holder’s cavalier approach to separation of powers, including a March memo in which he “instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” irritated commissioners and alarmed supporters of constitutional separation of powers.

The amendment approved Thursday, aims to reduce federal prison overcrowding by reducing non-violent drug trafficking offenders’ sentences by 17 percent. Holder did not attend the meeting. Instead, Commissioner Jonathan Wroblewski responded to what he called Pryor’s “very, very, very serious charge.” Wroblewski insisted that what the Attorney General did was “not only lawful, but in the greatest respect of the Justice Department,”

Chief Judge Ricardo Hinojosa stated that he was “surprised” by Wroblewski’s statement. He concurred with Pryor that Holder is setting a “dangerous precedent,” noting that two years ago, the Justice Department testified that it was not ready for reductions in sentencing, but that “all of a sudden, because the Attorney General says so” the DOJ has changed its course.

The meeting concluded with Chief Judge Patti Saris applauding the commission for its unanimous vote. But observers joined Pryor and Hinojosa in condemning Holder’s high-handed approach to constitutional boundaries.  “For those committed to the rule of law, the question now goes beyond whether reducing sentences for dealers in dangerous drugs is wise.  It’s whether the Attorney General, the chief law enforcement officer in the United States, is committed to following the law as it exists, or, instead, as he wants and speculates it might become,” William G. Otis a professor at Georgetown University Law Center, said in a statement.

My first reaction to this piece was to be intrigued and pleasantly surprised that Bill Otis was quoted criticizing the nation's top prosecutor for how he seeks to exercise his lawful prosecutorial discretion. (Notably, the author of this NRO piece seems to suggest that the AG should have felt some need to "consult" with a judicial branch agency before announcing a major prosecutorial initiative; I am pretty sure, based on prior debates over the potential problems with unreviewable prosecutorial discretion, that Bill does not believe it would be wise or even constitutional to expect federal prosecutors to have their charging policies reviewed by the judicial branch.)

My second reaction to this piece was to wonder if most federal judges agreed with Judges Pryor and Hinojosa that it was disrespectful and dangerous for the AG to instruct his prosecutors not to object to defense requests to apply the proposed reduced drug guidelines ASAP.  This issue is dynamic and challenging in part because if AG Holder had instructed prosecutors to object to application of these new guidelines until they formally became law in November, then defendants would likely start requesting sentencing delays in all federal drug cases throughout the bulk of 2014.  Because there are about 500 federal drug sentencings every week, this in turn would mean federal district judges nationwide would be receiving motions for sentencing postponements nearly every day for the next seven months.

Notably, just because AG Holder instructs his prosecutors not to object to the application of the proposed new drug guidelines, no judge is in turn obligated to follow the proposed drug guidelines.  Rather, judges now just have an easier time applying this new guidelines, if they so desire, without having to put all their drug cases on hold until November.  That is the context for the DOJ ex-officio representantive on the Commission, Jonathan Wroblewski, suggesting that AG Holder is actually seeking to help and show respect for the judiciary via his instructions to federal prosecutors.

That all said, if the substance of the drug guideline reform proposals now adopted by the Commission were very controversial (i.e., if the Commission itself was split) or if there was reason to believe that Congress and the President might formally reject the drug guideline reform proposal (i.e., if there was wide and vocal expressed opposition), then I think the concerns expressed by Judges Pryor and Hinojosa might be more compelling.  But since these judges themselves both voted with the unanimous Commission to lower the drug guidelines, and since there is momentum in Congress for even more drug sentencing reform, I do not really find AG Holder's exercise of his lawful discretion in this setting all that disrespectful or dangerous.

Some recent related posts:

April 11, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Thursday, April 10, 2014

US Sentencing Commission to vote on reducing drug sentencing guidelines

As detailed in this official notice, "a public meeting of the [US Sentencing] Commission is scheduled for Thursday, April 10, 2014, at 2:30 p.m."  On the official agenda is "Vote to Promulgate Proposed Amendments," and as reported in this prior post, in January the USSC voted to publish proposed amendments to the federal sentencing guidelines that include an across-the-board reduction in the sentences recommended for all drug offenses.  

I expect there will be some press reports about the USSC vote on the drug guidelines later today.  In the meantime, this effective new PBS Frontline article headlined "Feds to Reconsider Harsh Prison Terms for Drug Offenders," provides some background and context:

The federal prison population has expanded by nearly 800 percent in the past 30 years, spurred in part by the increasing use of tougher sentences applied to nonviolent drug crimes. Now there’s a growing movement to scale it back. On Thursday, the U.S. Sentencing Commission, an independent federal agency, plans to vote on an amendment to sentencing guidelines that could ultimately begin to winnow the federal prison population, nearly half of whom are people convicted of drug offenses.

The amendment is part of a bipartisan push away from America’s addiction to incarceration, which prison reform experts say costs far too much, not only in dollars — $80 billion a year in 2010 — but also in the devastation primarily of African-American communities, who have been disproportionately caught up in the system.

The commission’s proposal would lower the sentencing guideline levels for drug-trafficking offenses, allowing judges to impose reduced sentences by about 11 months, on average, for these crimes. The guidelines are the range between which a judge can sentence an offender. Currently, those guidelines are set higher even than mandatory minimum sentences — the lowest possible sentence a judge could impose — to give prosecutors bargaining power. The amendment would set the upper and lower guideline limits around the mandatory minimums, leading to lower sentences for nearly 70 percent of drug-trafficking offenders, the commission said....

Prison reform advocates say the commission’s proposal is an incremental step, but an important one. “When you’re serving 10 years, six months can make a difference,” said Jesselyn McCurdy, an attorney with the ACLU’s Washington legislative office. “It’s incremental, but it’s all important because it sends the larger message that we have to do something about the harsh sentencing in the federal system.”

Should the Sentencing Commission’s amendment pass, it will be sent to Congress, which will have 180 days to make any changes. If it does nothing — which is the likely outcome given bipartisan Congressional support for the proposal — the resolution will take effect on Nov. 1.

For years, states, which carry the bulk of U.S. prisoners, have taken the lead on sentencing reform — largely out of necessity. Struggling with stretched budgets and overflowing prisons, 40 states have passed laws that ease sentencing guidelines for drug crimes from 2009 to 2013, according to a comprehensive analysis by the Pew Research Center. Seventeen states have invested in reforms like drug treatment and supervision that will save about $4.6 billion over 10 years, according to the Justice Department.

Such reforms also have gained popular public support. According to Pew’s own polling, 63 percent of Americans say that states moving away from mandatory minimum sentencing is a “good thing,” up from 41 percent in 2001. Even more — 67 percent — said that states should focus on treatment, rather than punishment, for people struggling with addiction to illegal drugs....

The Sentencing Commission itself notes that substantial reform requires action by Congress. “Our proposed approach is modest,” said Patti Saris, the commission’s chairwoman. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...

The Senate is currently considering a bill called the Smarter Sentencing Act, a bipartisan bill introduced in July 2013 by Sen. Richard Durbin (D-Ill.) and Sen. Mike Lee (R-Utah). It wouldn’t abolish mandatory minimums, but it would allow judges to impose more lenient sentences for certain non-violent drug offenses. “Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said when introducing the bill, adding that the act “takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”...

But the bill, which even the senators acknowledged as “studied and modest” on their website, doesn’t have great odds of passing. According to govtrack.us, a nonpartisan website that tracks congressional legislation, the Smarter Sentencing Act has only a 39 percent chance of being enacted.

Some recent related posts:

UPDATE:  This press release reports that, as expected, the USSC voted today to reduce the federal guidelines for all drug offenses.  Here is an excerpts from the press release:

The Commission voted unanimously to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types. The drug guidelines under the amendment would remain linked to statutory mandatory minimum penalties. The Commission estimates that approximately 70 percent of federal drug trafficking defendants would qualify for the change, with their sentences decreasing an average of 11 months, or 17 percent, from 62 to 51 months on average.

The Commission this year has prioritized addressing federal prison costs and capacity with a continued commitment to public safety. The Commission estimates that the amendment reducing drug guidelines would reduce the federal prison population by more than 6,500 over five years, with a significantly greater long-term impact.

“This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner,” said Judge Patti B. Saris, chair of the Commission. “Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991.”

In addition, the Chair of the USSC made a statement in conjunction with today's vote, which is now available here via the USSC's website.  The interesting three-page statement concludes with this interesting paragraph concerning possible retroactive application of the proposed new guidelines: 

Over the next few months, the Commission will be studying the issue of whether the drug amendment should apply retroactively, which we are statutorily required to do. This is a complex and difficult issue, and requires a different analysis than the decision we have made today about reducing drug sentences prospectively. The Commission will take into account, as it always does when considering retroactivity, the purposes of the amendment, the magnitude of the change, and the difficulty of applying the change retroactively, among other factors. I know the Commission will carefully consider this issue, and many stakeholders will have strong views. I do not know how it will come out, but we will carefully review data and the retroactivity impact analysis we have directed staff to conduct as well as public comment in order to ensure that we weigh all perspectives.

April 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, April 09, 2014

Lots of notable sentencing activity via the Sixth Circuit on this hump day

I have long found that Wednesday seems to be a popular day for circuit sentencing decisions, and today the Sixth Circuit was involved in two notable sentencing actions. 

One action involves the decision, noted in this order, to grant en banc review in US v. Mateen, a statutory interpretation case concerning "whether a state sexual offense that does not necessarily involve a minor or ward can trigger the sentencing enhancement under 18 U.S.C. § 2252(b)(2)."  The (split) Mateen panel held that the sentence enhancement was not applicable, and the en banc grant suggest a majority of the Sixth circuit judges may not agree.

The other action involves a lengthy decision in a MDMA sentencing appeal, US v. Kamper, No. 12-5167 (6th Cir. April 9, 2014) (available here), which gets started this way:

Defendants-appellants Glenn Kamper and Joe Head appeal their respective 144-month sentences imposed for their roles in a conspiracy to manufacture and distribute MDMA (also known as 3,4-methylenedioxymethamphetamine or “ecstasy”) in Chattanooga, Tennessee. Head and Kamper both appeal their sentences as procedurally and substantively unreasonable. Kamper argues that the MDMA-to-marijuana equivalency ratio underlying his Guidelines sentencing range is based on faulty science, and that the district court erred when it justified its refusal to reject the Guidelines ratio with institutional concerns. We conclude that the district court misunderstood its authority to reject and replace a Guidelines equivalency ratio based on policy disagreements, but conclude that the district court’s error was harmless. We reject Kamper’s other arguments regarding the reasonableness of his sentence as without merit. Head argues that the district court erred in applying sentencing enhancements for his aggravating role in the criminal conspiracy and for obstruction of justice. We conclude that Head’s sentence must be vacated because the district court erred in applying a sentencing enhancement for obstruction of justice. Accordingly, we AFFIRM the judgment of the district court with respect to Kamper, but REVERSE the judgment of the district court with respect to Head and REMAND for resentencing.

April 9, 2014 in Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (1) | TrackBack