Tuesday, July 31, 2018

Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."

I blogged here about how Justice Kennedy's replacement would likely be a greater supporter of jury trial rights, and I blogged here and here and here about folks noticing Judge Brett Kavanuagh's notable statement in the 2015 Bell case (available here) that "[a]llowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and a jury trial."  But there is still more to this story as we await Judge Kavanaugh's confirmation hearing, and I realized as much thanks to this recent piece at the Brennan Center's website.

The Brennan Center piece noted that Judge Kavanaugh in 2009 testified to the US Sentencing Commission when the USSC was having regional public hearings to hear from stakeholders about federal sentencing.  The Brennan piece expressed concern that Judge Kavanuagh made the case for a return to a mandatory sentencing system in his testimony.  The Brennan analysis did not mention that Judge Kavanaugh in his testimony speaks out against the use of acquitted conduct (at least as a policy matter).  Here are portions of what he had to say in this testimony to the USSC and in follow-up questions:

Whether they are mandatory or advisory, I think acquitted conduct should be barred from the guidelines calculation. I don't consider myself a particular softy on sentencing issues, but it really bothers me that acquitted conduct is counted in the Guidelines calculation. I have written about this, and I think I am not alone.... It is just very problematic symbolically.

Put aside the substance, because I realize it still can come in on the back end, particularly in an advisory system, but telling a defendant, "Yes, you are acquitted but yes, we are going to calculate that sentence to include that acquitted conduct" just sends the wrong message. It seems to me in too many cases it seems inconsistent with the nature of our system. I would urge careful consideration of that issue.... (transcript pp. 41-42)

[O]ne of the things the guidelines did was to bring into the open, into the sunlight, things that had happened for years that no one knew or didn't think about in the same way, and all of a sudden you are having a precise increase based on acquitted conduct, and people say, "Well, it always happened that way."

Well, okay, but now you are actually seeing it, the actual impact.

As you say, quite rightly, no one understands that in the real world. It fails the common sense test, and it brings disrespect to the process, and it weakens confidence in the judicial process, and maybe you can reason your way from point A to point B to point C logically for why it should be part of the process, but when you take a step back, it just doesn't work, and I think even if it is purely symbolic, the effort to bar the consideration of acquitted conduct; even, in other words, if there is a logical reason to do it and the only reason not to do it is symbolic, symbolism has value in the criminal justice system at times, and I think this is one of those areas where it would be warranted.... (transcript pp. 80-81)

Of course, advocating against the use of acquitted conduct in guidelines calculations to the US Sentencing Commission is not the same as declaring the use of acquitted conduct in guidelines calculations unconstitutional. But this testimony leave little doubt as to Judge Kavanaugh's concerns about this issue, and it provides a reasonable basis for hoping he could bring some useful new perspectives to the Court on some sentencing issues.

Some prior related posts:

July 31, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, July 27, 2018

At resentencing, former New York Assembly speaker gets (only?) seven years in federal prison for corruption

As reported here by the New York Post, "Sheldon Silver, the disgraced ex-speaker of the New York state Assembly, was sentenced to seven years in prison — less than the 12 years he was sentenced to previously."  Here is the context:

The judge cited the 74-year-old Silver’s advanced age and the substantial monetary penalties she plans to levy, including a $1.75 million fine, in the lower sentence.

Silver was convicted in May — for a second time — of selling his office for $4 million in kickbacks, plus $1 million in profits, tied to two schemes. Before his arrest in 2015, Silver was one of the most powerful men in Albany — along with Gov. Andrew Cuomo and former Senate Majority Leader Dean Skelos.

At his 2016 sentencing, Judge Valerie Caproni — who sentenced him again this time around — ordered him to serve 12 years in prison and to forfeit nearly $5.2 in ill-gotten gains and another $1.75 million in fines. But Silver never served a day in prison because his 2015 conviction was overturned on appeal amid questions about the validity of the jury instructions, which were raised after the US Supreme Court narrowed the definition of bribery.

Silver’s lawyer Michael Feldberg has said he plans to appeal the second verdict as well, saying the feds once again failed to prove that Silver promised anything in return for the lucrative referrals he received....

During Friday’s sentencing, Caproni blasted Albany’s culture of corruption, noting that recent months have all “touched, directly and indirectly, the ‘three men in a room'” — the derisive term used to describe the governor and top leaders of the Senate and Assembly. “This has to stop,” she said. “New York state has to get its act together and do something institutionally to stop corruption.”

Still, she commended Silver for apologizing for his conduct this time around, which he did not do in 2016. “That was a wise decision on Mr. Silver’s part,” she said. “Mr. Silver’s conduct clearly caused discernible harm.” She also remarked on signs of wear and tear. “I feel like visually he’s aged more than the three years that have gone by chronologically,” she said.

Silver also spoke at the sentencing, saying that he is “extremely, extremely remorseful” for having “brought out a great deal of distrust in NY’s government.”

As noted in prior posts linked below, the original 12-year sentence given to Silver was still way below a calculated guideline range of 20+ years.  And this time around, the feds were asking for a sentence "substantially in excess" of 10 years.  So, Silver probably should feel a bit lucky he did not get an even longer term than seven years.  But even with some likely time off for good behavior, Silver now cannot be making any real retirement plans until 2025. 

Prior related posts:

July 27, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (6)

An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct

In this post earlier this month, I suggested that Justice Kennedy might be replaced by a new Justice more inclined to afford criminal defendants stronger Sixth Amendment rights under Apprendi and Blakely.  And this subsequent post highlighted that new SCOTUS-nominee Judge Brett Kavanaugh authored an interesting opinion a few years ago that expressed concern about the use acquitted conduct to increase sentences.  Against that backdrop, I was interested to see this new Law360 commentary authored by Alan Ellis and Mark Allenbaugh headlined "Sentencing May Change With 2 Kennedy Clerks On High Court." Here are excerpts from the start and end of the commentary:

Shortly before his confirmation just over a year ago, we wrote about what a now-Justice Neil Gorsuch could mean for federal sentencing.  In particular, we reviewed his Tenth Circuit opinion in United States v. Sabillon-Umana, wherein then-Judge Gorsuch, a former clerk for now-retiring Justice Anthony Kennedy, questioned the constitutionality of judicial fact-finding at federal sentencing, as opposed to fact-finding by a jury.  Known as “relevant conduct,” judge-found facts — which often include uncharged and even acquitted conduct — drive federal sentencings, often increasing terms of imprisonment by years and even decades.  As it turns out, another former Kennedy clerk, Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit — who recently was nominated by President Donald Trump to take the retiring justice’s seat on the court — also shares Justice Gorsuch’s concern.  Accordingly, for the reasons discussed below, should Judge Kavanaugh be confirmed, we believe the “Kennedy clerks” will likely lead the court to finally rein in relevant conduct by holding unconstitutional the use of uncharged and acquitted conduct to enhance federal sentences....

Should Judge Kavanaugh be confirmed, we believe it quite likely that, based on his prior jurisprudence, the current manner in which relevant conduct or at least acquitted conduct is used to enhance sentences will soon be determined to be unconstitutional.

Though I certainly hope that new Justices could usher in a big changes to the modern federal sentencing system, I do not share these authors' view that such changes are "quite likely." In particular, finding unconstitutional any use of "uncharged" conduct at sentencing would be a real sea-change for lots of sentencing systems and practice, and I think a number of Justices would be hesitant to take Sixth Amendment doctrines this far.  But I still like this constitutional optimism even if I do not fully share it.

A few prior related posts:

July 27, 2018 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, July 24, 2018

A friendly brief on the intersection of Eighth Amendment juvenile sentencing jurisprudence and the federal sentencing guidelines

I was pleased to have as one project this summer helping to draft an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones. In a split decision handed down in May, a panel of the Ninth Circuit affirmed the district court adoption of the the federal sentencing guidelines as the key factor in the course imposing a life without parole federal sentence on a juvenile offender. The panel opinion is available at this link, with Judge Johnnie Rawlinson authoring the majority opinion (joined by district judge David Ezra) and Judge Diarmuid O’Scannlain authoring the dissent.

The amicus brief which can be downloaded below argues, in short form, that “It is unreasonable — and unconstitutional — for a court to routinely apply the Sentencing Guidelines when a defendant is subject to a Guideline sentencing range of life without parole for a crime committed as a juvenile.” In longer form, here is the start of the brief's "Summary of Argument":

The Supreme Court’s Eighth Amendment jurisprudence has long stressed that youth must matter in sentencing. Nearly four decades ago, in Eddings v. Oklahoma, 455 U.S. 104 (1982), the Supreme Court, explaining why an offender’s age and maturity is critical to any assessment of just punishment, stressed that “youth is more than a chronological fact” and that “minors often lack the experience, perspective, and judgment expected of adults.” Id. at 115–16.  More recently, in a line of cases beginning with Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth Amendment forbids execution of juvenile offenders), and extending now through Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (holding that the Eighth Amendment forbids sentencing a juvenile offender to life without parole unless his crime reflects irreparable corruption), the Court has developed substantive and procedural rules to operationalize the Eighth Amendment mandate that “children are constitutionally different from adults for purposes of sentencing.” Id. at 733 (quoting Miller v. Alabama, 567 U.S. 460, 471 (2012)); accord Graham v. Florida, 560 U.S. 48, 68 (2010).  This constitutional principle flows from the reality that children, compared to adults, are less mature, more susceptible to negative influences, and more capable of reform — and so any penological justifications for the harshest adult punishments “collapse in light of ‘the distinctive attributes of youth.’” Montgomery, 136 S. Ct. at 733–34 (quoting Miller, 567 U.S. at 472).  Thus, both sound sentencing policy and settled constitutional doctrine forbid a sentencing court from treating a juvenile as though he were an adult.

Yet that is precisely what the U.S. Sentencing Guidelines encourage sentencing courts to do.  Problematically, the Guidelines have no provisions that readily permit consideration of “the distinctive attributes of youth.”  The Guidelines — designed with adult offenders in mind — give no attention to any youth-related consideration in standard offense-level calculations, and they discourage consideration of age “in determining whether a departure is warranted” except in “unusual” cases. U.S.S.G. § 5H1.1.  Given that the Guidelines impart to sentencing courts a strong “anchoring” effect — as the Supreme Court has recognized, see Peugh v. United States, 569 U.S. 530, 541–42 (2013) — and that in a majority of cases judges do not deviate from the Guidelines range absent a government motion to do so, routine application of the Guidelines to juvenile offenders is fundamentally inconsistent with the Supreme Court’s Eighth Amendment jurisprudence.

The highly deferential standard of review that appellate courts apply to within-Guidelines sentences only exacerbates the tensions between standard Guideline-sentencing procedures and constitutional requirements.  Absent searching substantive review of Guidelines sentences, an appellate court risks endorsing a sentencing system that unconstitutionally discourages consideration of an offender’s youth and its attendant characteristics.  The Guidelines, if applied in their standard manner to a juvenile offender, thus result in a federal sentencing regime that is fundamentally inconsistent with the Eighth Amendment requirements articulated in Roper, Graham, Miller, and Montgomery.

Download FILED Briones Brief of Amici Curiae Criminal-Sentencing Scholars ISO Petition for Rehearing En Banc

A terrific pair of lawyers at Sterne, Kessler, Goldstein & Fox helped make this brief become a reality (and get filed), and I am also thankful to a group of academics who signed on to this brief.

July 24, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Tuesday, July 10, 2018

"The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It"

The title of this post is the title of this extraordinary big new report released today by the National Association of Criminal Defense Lawyers. Here is an overview of the 84-page report from the NACDL's website:

The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial.  To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system

This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident.  The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems.  The Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.

Former US District Judge John Gleeson authored a thoughtful Foreword to the report, and here are excerpts that also provide a partial account of what follows:

This report is a major contribution to the discussion of one of the most important issues in criminal justice today: the vanishing trial.  Once the centerpiece of our criminal justice ecosystem, the trial is now spotted so infrequently that if we don’t do something to bring it back, we will need to rethink many other features of our system that contribute to fair and just results only when trials occur in meaningful numbers.

The first task in solving a problem is identifying its causes, and this report nails that step.  Mandatory minimum sentencing provisions have played an important role in reducing our trial rate from more than 20% thirty years ago to 3% today.  Instead of using those blunt instruments for their intended purpose — to impose harsher punishments on a select group of the most culpable defendants — the Department of Justice got in the habit long ago of using them broadly to strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial.  The Sentencing Guidelines also play an important role, providing excessively harsh sentencing ranges that frame plea discussions when mandatory sentences do not.  Finally, the report correctly finds that federal sentencing judges are complicit as well.  In too many cases, excessive trial penalties are the result of judges having internalized a cultural norm that when defendants “roll the dice” by “demanding” a trial, they either win big or lose big.  The same judges who will go along with a plea bargain that compromises a severe Guidelines range are too reticent to stray very far from the sentencing range after trial.

The report’s principles and recommendations will stimulate some much-needed discussion.  Today’s excessive trial penalties, it concludes, undermine the integrity of our criminal justice system.  Putting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.  The report properly raises the “innocence problem,” that is, the fact that prosecutors have become so empowered to enlarge the delta between the sentencing outcome if the defendant pleads guilty and the outcome if he goes to trial and loses that even innocent defendants now plead guilty.  But there’s an even larger hypocrisy problem.  Our Constitution claims to protect the guilty as well, affording them a presumption of innocence and protecting them from punishment unless the government can prove them guilty beyond a reasonable doubt.  A system characterized by extravagant trial penalties produces guilty pleas in cases where the government cannot satisfy that burden, hollowing out those protections and producing effects no less pernicious than innocents pleading guilty.

The report’s recommendations range from the sweeping (ban those mandatory minimums) to the technical (eliminate the motion requirement for the third “acceptance” point), and include suggested modifications to the “relevant conduct” principle at the heart of the Guidelines, pre-plea disclosure requirements, “second looks” at lengthy sentences, and judicial oversight of plea discussions.  A particularly attractive recommendation would require judges sentencing a defendant who went to trial to pay greater attention to the sentences imposed on co-defendants who pled guilty; few things place today’s excessive trial penalty in sharper relief.

There is no such thing as a perfect criminal justice system. But a healthy one is constantly introspective, never complacent, always searching for injustices within and determined to address them.  The sentencing reform movement a generation ago disempowered judges and empowered prosecutors.  Federal prosecutors have used that power to make the trial penalty too severe, and the dramatic diminution in the federal trial rate is the result.  Our system is too opaque and too severe, and everyone in it — judges, prosecutors, and defense attorneys — is losing the edge that trials once gave them.  Most important of all, a system without a critical mass of trials cannot deliver on our constitutional promises. Here’s hoping that this report will help us correct this problem before it is too late.

July 10, 2018 in Examples of "over-punishment", Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Monday, July 09, 2018

Lots more great new Quick Facts publications from US Sentencing Commission

In this post a few days ago, I praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  In my prior post, I gave special attention to the new Quick Facts on "Women in the Federal Offender Population," but now I see there are new Quick Facts on just about every major federal sentencing topic based on the USSC's 2017 fiscal year data.  Here are just a few of these publications I have been checking out:

There are so many big and small stories to notice here, and I find especially interesting the sentence-length and trend data appearing in this document about federal drug sentencing. It shows, inter alia, that despite all the talk about the opioid crisis and enhanced prosecution efforts, in Fiscal Year 2017 there were far more sentencings for methamphetamine trafficking than any other drug and these meth offenders got on average a sentence nearly two years longer than the average heroin dealer sentenced in federal court. Also, of all drug dealers sentenced in federal court in Fiscal Year 2017, roughly three times as many had their guideline range reduced as a minor or minimal participant than had their guideline range increased for having a leadership or supervisory role in a drug offense.

July 9, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

Thursday, July 05, 2018

Interesting new Quick Facts report from US Sentencing Commission on "Women in the Federal Offender Population"

I am so pleased to see and to be able to report that the US Sentencing Commission is continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications.  Regular readers may recall from this prior post, roughly five years ago, the USSC started putting out these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."

This month brings this new Quick Facts on "Women in the Federal Offender Population," and here are just a few data tidbits from the document that caught my attention:

July 5, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Monday, July 02, 2018

US Sentencing Commission releases mid-FY 2018 sentencing data with re-engineered accounting of departures and variances

US Sentencing Commission has now released here its latest quarterly data report, and this one "contains preliminary quarterly data on cases in which the offender was sentenced during the first half of fiscal year 2018" (which is the period from October 1, 2017, through March 31, 2018).  I do not believe the USSC released first quarter FY 2018 data, so this new report seems to be the first big data report of the "post-Sessions Memo era" -- i.e., since AG Jeff Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to pursue those offenses that carry the most substantial guidelines sentence, including mandatory minimum sentences, and to more regularly seek within-guideline sentences.

From a quick glance and comparing this data from the last full year of sentencing data from the Obama Administration (in this FY 2016 data report), there does seem to be a noticeable uptick in mean sentences in some big crime categories.  For example (drawing from Table 6 in both data runs): the mean drug trafficking sentence was 75 months in the first half of FY 2018, the mean in FY 2016 was only 66 months; the mean fraud sentence was 27 months in the first half of FY 2018, the mean in FY 2016 was only 25 months.  But, interestingly, in other big crime categories there was a downtick in mean sentences: the mean firearm sentence was 70 months in the first half of FY 2018, the mean in FY 2016 was 75 months; the mean immigration sentence was 11 months in the first half of FY 2018, the mean in FY 2016 was 13 months.  Putt this all together with other less common offenses, and it turns out the cumulative mean federal sentence for the first half of FY 2018 was 45 months, the exact same mean for all federal sentences in FY 2016.

I would report some similar comparable data on departures and variances, but the USSC in this data run has significant altered how it accounts and reports this data.  Here is part of the USSC's explanation of its new accounting:

Beginning with this report, the Commission is again updating the way it presents quarterly data.  In this report, all analyses that involve a comparison of the position of the sentence imposed to the guideline range that applied in the case are presented in a new way.  Sentences are now grouped into two broad categories: Sentences Under the Guidelines Manual and Variances.  The former category comprises all cases in which the sentence imposed was within the applicable guideline range or, if outside the range, where the court indicated that one or more of the departure reasons in the Commission’s Guidelines Manual was a basis for the sentence.  Variance cases are those where the sentence was outside the guideline range (either above or below) and where the court did not cite any guideline reason for the sentence.  Data for important subgroups within these two categories are also reported.

In other words, within-guideline and "traditional departure" sentences are grouped together, while all Booker-allowed variances broken out distinctly.  It seems that all the key data previously reported on Table 8 of past USSC's data reports still appears in Table 8A of the new report.  But, fascinatingly, the new organization showcases now that roughly 3/4 of all sentences (74.7% to be exact) are "Sentences under the Guidelines Manual" with "variances" now accounting for only 25.3% of the sentences (with 2% being upward variances, 5.5% being "government motion" variances and 17.7% being "non-government" variances). 

Repackaging aside, we can still look at the "within-guideline" number on Table 8 and 8A for direct comparisons on this front between the first half of FY 2018 and all federal sentences in FY 2016.  Doing so shows that the within-guideline sentencing rate has increased from 48.6% in FY 2016 up to 50% in the first half of FY 2018.  Without a more intricate and sophisticated analysis controlling for caseloads and other factors, it is too hard to say there is conclusive evidence that the Sessions Memo is having a real impact on federal sentencing outcome.  But these data are suggestive of trends that seem likely to continue as move cases more through the pipeline and as a new set of federal prosecutors give effect to commands from Main Justice.

July 2, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Notable Sixth Circuit panel reverses as procedurally unreasonable big upward variance in cocaine sentence based on opioid overdoses

On Friday, the Sixth Circuit handed down a notable new sentencing opinion in US v. Fleming, No. 17-3954 (6th Cir. June 29, 2018) (available here). The start of the opinion reviews its essentials:

Marcus Fleming was convicted of a cocaine offense, and the United States Sentencing Guidelines provided for a recommended sentence of 60 months’ imprisonment.  At his sentencing hearing, the district court doubled that.  It did so based in large part on a brief local news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids like fentanyl.  Neither this article, nor the underlying Ohio state report on which it was based, was provided to the parties before the start of the sentencing hearing.  Nor was Fleming notified before the hearing that the district court planned to consider the article or the issues it addressed.  Because this procedure denied Fleming a meaningful opportunity to comment on information that led to a substantial increase in his sentence, the resulting sentence was procedurally unreasonable.

Here is small part of the Sixth Circuit panel's analysis:

Here, the district court’s reliance on information about mixed cocaine-opioid overdose deaths in the Cleveland.com article was a surprise, and that surprise was prejudicial to Fleming’s sentencing presentation. Therefore, Fleming’s sentence was rendered in a procedurally unreasonable manner.

The district court’s consideration of information about mixed cocaine-opioid overdose deaths was a surprise because, before the sentencing hearing, there was no indication that opioids were relevant to this case, let alone that they would play a prominent role. Fleming was convicted for possession of cocaine, not opioids.  Nothing in the record suggested that opioids were found in Fleming’s car, or that Fleming had ever sold or possessed opioids, or even that any cocaine Fleming sold had ever been mixed with opioids. Of course, opioids have been a topic of grave public concern in recent years, as their devastating and tragic effects have been felt across the country. But it was far from apparent that they were relevant to Fleming’s sentence for possession of cocaine.

This ruling strikes me as notable or at least two reasons beyond its substantive particulars: (1) one of jurists on Prez Trump's SCOTUS short list, Judge Raymond Kethledge, was one of the judges on this Fleming panel, and (2) this Cleveland.com report highlights that the erroneous sentencing judge has a history of unreasonably long sentences:

An Akron federal judge who has been criticized by a federal appeals court had a sentence reversed again on Friday -- this time because of his reliance on a cleveland.com article....

Adams has been removed from cases a few times in recent years and has been the target of criticism by the 6th Circuit.  Most recently, the appeals court removed him from a case involving two men arrested in Cleveland with more than 200 pounds of cocaine. Both prosecutors and defense attorneys in the case agreed to recommend prison sentences of about three years, but Adams gave them both 10 years and did not give any good reasons for the higher sentences, the 6th Circuit ruled.

July 2, 2018 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, June 29, 2018

US Sentencing Commission releases notable list of proposed priorities for 2018-19 amendment cycle

6a00d83451574769e201b8d28f7af6970c-320wiThe US Sentencing Commission around this time of year typically releases a set of proposed priorities for the coming year's guideline amendment cycle.   For a bit of context, here are links to posts about its release of priorities for the 2016-17 amendment cycle and for the 2017-18 amendment cycle.   As informed readers may recall,  the USSC is still working with a reduced membership — it is supposed to have seven members and right now has only four — and there seems to be no movement on the controversial slate of additional nominees that Prez Trump put forward in March (basics here and more here).  I suspect the reduced membership might in part account for what this year's list of proposed priorities may be a bit shorter than usual.

But the reduced membership has not prevented the USSC from still producing a set of proposed priorities for 2018-19 amendment cycle that have more than a few interesting elemtns.  Nine total priorities were released yesterday and appear on the USSC website and in this new federal register notice.  Here excepts from the notice that especially caught my eye (with some added emphasis in a few spots):

Pursuant to 28 U.S.C. § 994(g), the Commission intends to consider the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to any identified priority.

As so prefaced, the Commission has identified the following tentative priorities:

(1) Continuation of its multiyear examination of the structure of the guidelines post-Booker and consideration of legislative recommendations or guideline amendments to simplify the guidelines, while promoting proportionality and reducing sentencing disparities, and to account appropriately for the defendant’s role, culpability, and relevant conduct.

(2) A multiyear study of synthetic drug offenses committed by organizational defendants, including possible consideration of amendments to Chapter Eight (Sentencing Organizations) to address such offenses.

(3) Continuation of its work with Congress and others to implement the recommendations of the Commission’s 2016 report to Congress, Career Offender Sentencing Enhancements, including its recommendations to revise the career offender directive at 28 U.S.C. § 994(h) to focus on offenders who have committed at least one “crime of violence” and to adopt a uniform definition of “crime of violence” applicable to the guidelines and other recidivist statutory provisions.

(4) Continuation of its work with Congress and others to implement the recommendations of the Commission’s 2011 report to Congress, Mandatory Minimum Penalties in the Federal Criminal Justice System including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c) — and preparation of a series of publications updating the data in the report....

(9) Consideration of other miscellaneous issues, including (A) possible amendments to the commentary of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) in light of Koons v. United States, No. 17-5716 (June 4, 2018); (B) study of the operation of §5H1.6 (Family Ties and Responsibilities (Policy Statement)) with respect to the loss of caretaking or financial support of minors; and (C) study of whether §1B1.13 (Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement)) effectively encourages the Director of the Bureau of Prisons to file a motion for compassionate release when “extraordinary and compelling reasons” exist.

As the USSC notice highlights, this notice indicates the USSC is "seeking comment on these tentative priorities and on any other issues that interested persons believe the Commission should address during the amendment cycle ending May 1, 2019.  To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority."  Public comments "should be received by the Commission on or before August 10, 2018."

June 29, 2018 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Tuesday, June 26, 2018

So how was it decided Reality Winner should get 63 months for leaking classified information? Does it seem about right?

The questions in the title of this post are prompted by this news out of the federal criminal justice system via the New York Times: "Reality L. Winner, a former Air Force linguist who was the first person prosecuted by the Trump administration on charges of leaking classified information, pleaded guilty on Tuesday as part of an agreement with prosecutors that calls for a sentence of 63 months in prison." Here is more of the particulars and some context:

Ms. Winner, who entered her plea in Federal District Court in Augusta, Ga., was arrested last June and accused of sharing a classified report about Russian interference in the 2016 election with the news media. Ms. Winner, who is now 26, has been jailed since her arrest and wore an orange prison jumpsuit and white sneakers to the hearing. Her decision to plead guilty to one felony count allows the government both to avoid a complex trial that had been scheduled for October and to notch a victory in the Trump administration’s aggressive pursuit of leakers.

“All of my actions I did willfully, meaning I did so of my own free will,” Ms. Winner told Chief Judge J. Randal Hall on Tuesday. Throughout the hearing, Ms. Winner kept her hands behind her back while she answered questions about whether she understood the terms of the plea deal.

Ms. Winner, who was honorably discharged from the Air Force in 2016, was working as a contractor for the National Security Agency when she obtained a copy of a report that described hacks by a Russian intelligence service against local election officials and a company that sold software related to voter registration. The Intercept, an online news outlet that a prosecutor said Ms. Winner admired, published a copy of the top secret report shortly before Ms. Winner’s arrest was made public. The report described two cyberattacks by Russia’s military intelligence unit, the G.R.U. — one in August against a company that sells voter registration-related software and another, a few days before the election, against 122 local election officials.

At a detention hearing last year, the prosecutor, Jennifer G. Solari, said that Ms. Winner had been “mad about some things she had seen in the media, and she wanted to set the facts right.”...

Once rare, leak cases have become much more common in the 21st century, in part because of such electronic trails. Depending on how they are counted, the Obama administration brought nine or 10 leak-related prosecutions — about twice as many as were brought under all previous presidencies combined.

The Justice Department prosecuted Ms. Winner under the Espionage Act, a World War I-era law that criminalizes the unauthorized disclosure of national-security secrets that could be used to harm the United States or aid a foreign adversary. Ms. Winner’s prosecution galvanized transparency advocates, who mounted a publicity campaign in her support that even included a billboard in Augusta, the east Georgia city where Ms. Winner lived at the time of her arrest. They were particularly infuriated by a judge’s ruling that she be held until her trial....

Ms. Winner is the second person known to have reached a plea agreement with the Trump administration to resolve a leak prosecution. A former F.B.I. agent, Terry J. Albury, pleaded guilty in April, but prosecutors in that case have signaled that they will ask that he serve 46 to 57 months in prison.

The Justice Department has brought at least two other leak-related cases under the Trump administration.  Earlier this month, James Wolfe, a former Senate Intelligence Committee staffer, was arrested and charged with lying to the F.B.I. about his contacts with reporters, including a Times reporter with whom he had a personal relationship and whose phone records the department secretly seized, during a leak investigation; Mr. Wolfe has not been charged with leaking classified information, however.  He has pleaded not guilty.  Also this month, Joshua A. Schulte, a former C.I.A. software engineer, with charged with violating the Espionage Act and other laws based on accusations that he sent a stolen archive of documents and electronic tools related to the agency’s hacking operations to WikiLkeas, which dubbed them the Vault 7 leak. Mr. Schulte had already been facing child pornography charges.

A judge must still decide whether to approve her sentence after reviewing a report that prosecutors will present.  But prosecutors’ recommendation of more than five years in prison — followed by three years of supervised release — was unusually harsh for a leak case.  For most of American history, people accused of leaking to the news media were not prosecuted at all.  In the flurry of cases that have arisen during the 21st century, most convicted defendants were sentenced to one to three-and-a-half years.

One — Chelsea Manning, who was convicted at a military court-martial for sending large archives of military and diplomatic documents to WikiLeaks — was sentenced to 35 years in prison, but served only about seven years because President Barack Obama commuted the remainder of her sentence.

As this article suggests, there is not a lot of history of sentences for these kinds of leaks, and arguably the Chelsea Manning case sets a notable benchmark for how high a sentence might go for this kind of illegal leaking. But there are lots of ways to distinguish Manning and Winner, and Winner still seems to be getting a sentence considerably more severe than most modern leakers. That said, if one believes that deterrence considerations are especially important and perhaps effective in this setting, perhaps it is particularly justifiable for federal prosecutors to try to throw the book at the few high-profile leakers who get convicted.

Notably, as this article notes, a federal judge has to decide whether to accept this particular plea deal with its built-in sentence of 63 months.  Comments are welcome concerning whether the judge out to have some pause about doing so.

June 26, 2018 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3)

Wednesday, June 20, 2018

Split Second Circuit panel reverses lengthy child porn sentence for second time; dissent notes "sentence is barbaric without being all that unusual"

I do not tend to blog much any more about circuit opinions conducting reasonableness review because, now more than a decade since the Supreme Court ensured reasonableness review would be very deferential thanks to Rita, Gall and Kimbrough, few circuit sentencing opinions break any new ground.  But though a Second Circuit panel opinion yesterday, US v. Sawyer, No. 15-2276 (2d Cir. June 19, 2018) (available here), does not break new ground, it still struck me as blogworthy for both the majority opinion and the dissent.

The majority opinion in Sawyer is well summarized by the preamble to the opinion: 

Appeal from a judgment of the United States District Court for the Northern District of New York (D’Agostino, J.) imposing a sentence of 300 months of imprisonment for the offenses of producing child pornography and receiving child pornography. This court previously vacated as substantively unreasonable a sentence of 360 months of imprisonment for the same offenses, identifying specific deficiencies in the district court’s analysis. The district court did not sufficiently address those deficiencies on remand and suggested that it would have difficulty putting aside its previously-expressed views.

The key factor that appears to have driven the original panel opinion and this second reversal was the "the district court’s failure to give sufficient downward weight to the effect of the severe sexual abuse Sawyer endured at home throughout his childhood."  Tellingly, even at the second sentencing, the district court stressed that the guidelines called for 80 years in prison(!), suggesting no "failure to afford sufficient weight to the way [the defendant was] raised in determining [his] sentence, looking at the fact that [the original sentence] departed by 50 years from the [80 year] guideline range."  In this way in this case,  we can and should see how extreme guideline ranges can persistently distort a district court's sentencing decision-making even after a circuit court has concluded that the district court failed to comply with the requirements of the first time around 3553(a).

Beyond noticing the impact and import of broken guidelines even in a case in which everyone agrees they should not be followed, the Sawyer case struck me as blogworthy because of a (casual?) line in the dissenting opinion by Judge Jacobs. Here is the context for the line quoted in the title to this post, with my emphasis added:

In decrying the 25-year sentence, the majority opinion observes (fairly) that this case is not the most heinous or egregious on record.  At the same time, however, this is not a case such as United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), or United States v. Brown, 843 F.3d 74 (2d Cir. 2016), in which decades of imprisonment were imposed solely for looking at images created by others, and in which any harm to a child was inflicted at one or more removes. This defendant was hands-on.  He produced the pornography, and he used a 4-year-old and a 6-year-old to do it.  For these acts, a 25-year sentence is not a shocking departure from sentences routinely imposed in federal courts for comparable offenses — especially considering that the mandatory minimum is fifteen.  The sentence is barbaric without being all that unusual.

I appreciate the candor and yet remain stunned by Judge Jacobs stating simply that the defendant's sentence here is "barbaric" but yet not "all that unusual" and thus ought to be affirmed despite the obligation of circuit courts to review sentences for their reasonableness in light of the requirements of 3553(a).

June 20, 2018 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (7)

Tuesday, June 19, 2018

SCOTUSblog reviews of SCOTUS work in Rosales-Mireles and Chavez-Meza

When I get some more time to re-read the opinions and to think more about their possible echoes, I may do some additional commentary concerning the Supreme Court's sentencing work yesterday in Rosales-Mireles v. United States, No. 16–9493 (S. Ct. June 18, 2018) (available here), and Chavez-Meza v. United States, No. 17–5639 (S. Ct. June 18, 2018) (available here).  In the meantime, the SCOTUSblog folks have up an "Opinion analysis" for each case:

June 19, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, June 18, 2018

Split SCOTUS outcomes for federal defendants: a plain error win in Rosales-Mireles and an explanation loss in Chavez-Meza

The Supreme Court has handed down this morning its last two sentencing cases, Rosales-Mireles v. United States and Chavez-Meza v. United States, and they are split decisions in every sense. 

In Rosales-Mireles v. United States, No. 16–9493 (S. Ct. June 18, 2018) (available here), Justice Sotomayor writes for the Court ruling in favor of the federal defendant, with Justice Thomas writing the chief dissent joined by Justice Alito.  In Chavez-Meza v. United States, No. 17–5639 (S. Ct. June 18, 2018) (available here), Justice Breyer writes for the Court ruling in favor of the federal government, with Justice Kennedy writing the chief dissent joined by Justices Kagan and Sotomayor.

Here is the Court's opening paragraph in Rosales-Mireles:

Federal Rule of Criminal Procedure 52(b) provides that a court of appeals may consider errors that are plain and affect substantial rights, even though they are raised for the first time on appeal.  This case concerns the bounds of that discretion, and whether a miscalculation of the United States Sentencing Guidelines range, that has been determined to be plain and to affect a defendant’s substantial rights, calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant’s sentence.  The Court holds that such an error will in the ordinary case, as here, seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief.

Here is the Court's opening paragraph in Chavez-Meza:

This case concerns a criminal drug offender originally sentenced in accordance with the Federal Sentencing Guidelines.  Subsequently, the Sentencing Commission lowered the applicable Guidelines sentencing range; the offender asked for a sentence reduction in light of the lowered range; and the District Judge reduced his original sentence from 135 months’ imprisonment to 114 months’.  The offender, believing he should have obtained a yet greater reduction, argues that the District Judge did not adequately explain why he imposed a sentence of 114 months rather than a lower sentence.  The Court of Appeals held that the judge’s explanation was adequate.  And we agree with the Court of Appeals.

As regular readers should now come to expect, sentencing cases have a way of producing notable voting patters. Criminal defendants and defense attorneys should be intrigued and encouraged by that both Chief Justice Roberts and the new Justice Gorsuch signed on to the majority opinion in Rosales-Mireles. But defendants and defense attorneys surely will also be troubled that the Chief along with Justices Breyer and Ginsburg were all willing to embrace the "close enough for government work" approach in Chavez-Meza.

June 18, 2018 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wednesday, June 06, 2018

Reviewing the Supreme Court's work in sentence modification cases of Hughes and Koons

So much of interest has already happened this week, I almost forgot that on Monday the Supreme Court resolved two of the most notable sentencing cases on its docket this Term.  (Sentencing fans still have Rosales-Mireles v. United States on plain error review of sentencing errors and Chavez-Meza v. United States on required sentencing explanations to keep our interest the next few Mondays.)  Helpfully, I have seen on line a few reviews and round-ups of Hughes and Koons, and I figured it would be useful to link here:

June 6, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, June 04, 2018

Supreme Court delivers split decision for federal defendants in sentence modification cases of Hughes and Koons

Though the Supreme Court's ruling today about wedding cakes is sure to be what is most remembered from the first set of June 2018 opinions, the Court gave sentencing fans a lot to review with opinions in Hughes v. United States and Koons v. United StatesThe opinion in Hughes v. United States, No. 17–155 (S. Ct. June 4, 2018) (available here), will be a disappointment to some SCOTUS-watchers because the Court avoided addressing the Marks rule concerning fractured opinions.  But Hughes will not be a disappointment those sentencing fans who will be excited to see that Justice Gorsuch joined a majority opinion authored by Justice Kennedy in favor of a broad interpretation of who is eligible for sentence modification under retroactive guideline reductions. The opinion in Koons v. United States, No. 17- 5716 (S. Ct. June 4, 2018) (available here), was a unanimous opinoin authored by Justice Alito, which informed readers likely know means it federal prosecutors prevailed.

Here are some key sentences from the Hughes majority:

To resolve the uncertainty that resulted from this Court’s Opinion of the Court divided decision in Freeman, the Court now holds that a sentence imposed pursuant to a Type-C agreement is “based on” the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement....

This interpretation furthers §3582(c)(2)’s purpose, as well as the broader purposes of the Sentencing Reform Act.  “The Act aims to create a comprehensive sentencing scheme in which those who commit crimes of similar severity under similar conditions receive similar sentences.” Freeman, 564 U.S., at 533. “Section 3582(c)(2) contributes to that goal by ensuring that district courts may adjust sentences imposed pursuant to a range that the Commission concludes [is] too severe, out of step with the seriousness of the crime and the sentencing ranges of analogous offenses, and inconsistent with the Act’s purposes.” Ibid.  And there is no reason a defendant’s eligibility for relief should turn on the form of his plea agreement.

Here is the start of the unanimous (and very short) Koons opinion:

Under 18 U. S. C. §3582(c)(2), a defendant is eligible for a sentence reduction if he was initially sentenced “based on a sentencing range” that was later lowered by the United States Sentencing Commission.  The five petitioners in today’s case claim to be eligible under this provision.  They were convicted of drug offenses that carried statutory mandatory minimum sentences, but they received sentences below these mandatory minimums, as another statute allows, because they substantially assisted the Government in prosecuting other drug offenders.  We hold that petitioners’ sentences were “based on” their mandatory minimums and on their substantial assistance to the Government, not on sentencing ranges that the Commission later lowered. Petitioners are therefore ineligible for §3582(c)(2) sentence reductions.

June 4, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, June 02, 2018

Lamenting how federal supervised release operates and suggesting reforms

Jacob Schuman, a federal public defender, has this extended New Republic piece headlined "America’s Shadow Criminal Justice System" detailing problems with how federal supervised release operates. I recommend the piece in full, and here are excerpts:

In the federal criminal justice system, prison is just the beginning of punishment. After prison comes “supervised release,” a set of obligations and restrictions governing an ex-con’s day-to-day schedule, employment, residence, and relationships.

In the best-case scenario, two-thirds of people successfully complete their term of supervised release....  As a federal public defender, I see the remaining one-third of cases—the worst-case scenarios where people violate their supervised release and get sent back to prison for up to five years. In a recent case, I represented a first-time offender who flawlessly completed two years of a five-year term of supervision.  But after he got into a relationship with the wrong person and started using opioids, he was reported by his probation officer, arrested, and held in prison for seven months.  After a failed attempt at rehab, his probation officer reported him again, and the judge sentenced him to 18 months’ imprisonment for violating his release by failing to achieve recovery. He’s now serving that sentence in a maximum-security prison, where no addiction treatment is available.

Improving this system depends on Congress, which has now taken on the worthy task of prison reform. Recently, the House of Representatives passed the First Step Act, a bill that makes it easier for inmates to earn early release and expands their access to job training and education. The proposal won an impressively bipartisan 360-59 vote and the support of the White House.  While the FSA makes good changes, reform will be incomplete unless it also addresses supervised release, a web of restrictions that ensnares many former prisoners, making successful reentry to society more difficult, not less....

The data show that this system is incredibly strict, and that its reach is vast.  Between 2005 and 2009, federal judges imposed supervised release in approximately 300,000 cases, with an average term lasting over 40 months.  By 2010, more than 10,000 federal inmates were locked up for violating their supervised release. The supervision costs the federal government $400 million annually (not including the cost of incarcerating people for violations)....

Created by the Sentencing Reform Act of 1984, supervised release was supposed to reduce the monitoring of former prisoners.  Under the old “parole” system, inmates could earn early release from prison, but then had to serve the rest of their sentences in the community, subject to a parole officer’s supervision.  The SRA abolished parole and instead gave judges the option of imposing supervised release only on those defendants who needed extra support to “ease the[ir] … transition into the community.” The idea was that people would spend more of their time in prison, but would also receive less supervision after their release. Yet as the political winds shifted, Congress gradually made supervised release more expansive and more punitive.  Federal judges now impose supervised release in 99 percent of qualifying cases, and the number of people under supervision has increased five-fold.

Over the past 30 years, supervised release has transformed into a shadow criminal justice system that both reflects and perpetuates racial inequality.  In her book, The New Jim Crow, Professor Michelle Alexander examined how restrictions on former inmates, the majority of whom are Black or Hispanic, put them “at increased risk of arrest because their lives are governed by additional rules that do not apply to everyone else.”  This inequality continues into the courthouse, as unlike most defendants, people accused of violating the terms of their supervised release do not enjoy the rights to a speedy trial, a jury, confrontation of adverse witnesses, or proof beyond a reasonable doubt.  The upshot is that in the federal system alone, over 100,000 men and women are now subject to arrest for minor infractions and to imprisonment without the protections of the Bill of Rights....

Reforming this system will not be easy, but there are a few good places to start:

First, Congress should return to its original goal of reducing post-release supervision of former inmates by limiting supervised release only to those defendants who need it most and by reducing the punishments for violations.

Second, both Congress and the courts should ensure that people facing revocation of their supervised release receive all the fundamental protections promised by the Bill of Rights, including the right to a jury, to a speedy hearing, to cross-examine adverse witnesses, and to be proved guilty beyond a reasonable doubt.

Finally, judges should stop sending people to prison for violations that are merely symptoms of an underlying drug addiction, not bad intent.  To encourage this practice, Congress should end mandatory revocations for drug possession and prohibit imprisonment for drug-related technical infractions.

Supporters of the First Step Act say their goal is “to control corrections spending, manage the prison population, provide educational and vocational training to inmates so they can successfully reenter society once released, and reduce recidivism.” To achieve this admirable purpose, reforming the nation’s prisons is indeed only the first step. Congress must also look beyond prison walls and fix our broken supervised-release system.

June 2, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Reentry and community supervision | Permalink | Comments (2)

Wednesday, May 30, 2018

Two great new judicious commentaries on the federal sentencing guidelines

A helpful reader made sure I did not miss this latest issue of the Hofstra Law Review, which starts with a Colloquim on the topic "Thirty Years Later: A Look Back at the Original U.S. Sentencing Guidelines."  The issue contains  two notable articles authored by two notable jurists.  Here are links to the pieces and their opening paragraphs:

"The Original U.S. Sentencing Guidelines and Suggestions for a Fairer Future" by Stephen G. Breyer

Thank you very much. It is terribly nice for me to be here at Hofstra.  Thirty years ago, as the original Sentencing Guidelines were going into effect, I spoke here to highlight some of the key compromises we as Commissioners reached in writing them.  Ten years later, in 1998, I revisited the Guidelines at the Roman L. Hruska Institute in Nebraska to discuss their history and to offer my recommendations for discussion following a decade of their application. I am here today to commemorate the history of the original Sentencing Guidelines, and to again offer my suggestions to Congress, the Department of Justice, and to the current United States Sentencing Commission.  While much has changed since the Guidelines were considered in those speeches, my suggestions remain the same.

"The Federal Sentencing Guidelines: A Good Idea Badly Implemented" by Jon O. Newman

The best way to mark the thirtieth anniversary of the Federal Sentencing Guidelines is to candidly admit that they are a classic example of a good idea badly implemented.  I propose to consider how the good idea originated, how the first Federal Sentencing Commission implemented it, how the Supreme Court has dealt with the Sentencing Guidelines, what is good about the Guidelines, what are the principal defects of the Guidelines, and the most important step that can now be taken to improve the Guidelines and realize the expectations of those of us who favored sentencing guidelines.

May 30, 2018 in Federal Sentencing Guidelines, Recommended reading | Permalink | Comments (0)

Tuesday, May 29, 2018

The Matthew Charles saga: another sad example of why complete abolition of parole was a mistake for federal sentencing

Matthew_charles-_march_2018_outside_wpln_1Last year I wrote an article in this special issue of the journal Federal Probation in which I explained why I believe the federal sentencing system has been disserved by the complete abolition of parole.  I have been thinking about that article in conjunction with the story that blew up my twitter feed over the weekend, the story of Matthew Charles described in this Nashville Public Radio piece.  Here are excerpts from a story that should be read in full:

It looks like a party — but Charles isn’t leaving for a big new job, or trying his luck in a new city. He’s going to prison. To finish out a 35-year term for selling crack to an informant in the 90’s.

Charles had already served 21 years before his sentence was cut short as a result of crack guideline changes passed by the Obama administration. But the U.S. Attorney’s office appealed his release on the grounds that Charles was legally considered a “career offender” due to a prior stint in state prison. They said the retroactive change in the law did not apply to him — and a Court of Appeals agreed.

“He’s rebuilt his life and now they’re coming to snatch it,” says "Wolf", who met Charles at a halfway house in 2016. They’ve volunteered together almost every Saturday since, long after fulfilling their community service requirements.  Wolf is talking to John Hairston, an old friend of Charles’ who flew in from Houston.  They’ve seen each other twice in over two decades — but for years, they wrote each other letters.  “The whole thing pisses me off to be honest,” he says, partly to Wolf and partly to the group of guests seated at another table across the lawn, who're listening intently and shaking their heads. “But it underscores how big a need there is for some reform in the justice system. I don’t care what they say.”

Since his release in 2016, Charles has held a steady job. He volunteers every Saturday, has reconnected with his family, and started a serious relationship. But really, his rehabilitation started years prior.

In prison, he took college classes and correspondence courses, he taught a GED program and became a law clerk. With his training, he helped other incarcerated men understand the judicial system long after their public defenders moved on to the next case.

Charles kept the secrets of those who were illiterate so they wouldn’t face ridicule or harassment — he read them letters from the court and drafted filings for them in the library. He organized bible studies and counseled newcomers. Two decades in federal insitututions — from maximum to low security — without a single disciplinary infraction.

Those that know Charles say they can’t understand why the justice system won’t recognize his rehabilitation. But the federal Bureau of Prisons did away with parole and most "good behavior" incentives years ago — even the best behaved must serve out the majority of their term.

Charles says the whole situation feels surreal. "I'm so tired” he says, after his hearing is postponed for the second time. “I am beyond tired. I always say to myself and others, ‘when is enough going to be enough?’”

Last time Charles faced time in prison, he was a drug dealer in his 20’s. At his sentencing in December 1996, a federal judge called Charles “a danger to society who should simply be off the streets.” Charles doesn’t dispute that. Until then, his entire life was embroiled in chaos....

Now in his 50’s, Charles has the support of friends and his community — and even the judge who ordered him back to prison. Everything is different. And yet, he says, nothing's changed.

On March 28, in a courtroom filled with more than two dozen of Charles’ friends, coworkers and loved ones, Judge Aleta Trauger called Charles’ case “sad” and commended his “exemplary rehabilitation.” But, she added that “her hands were tied” and reimposed his original sentence. She gave him 45 days to get his affairs in order.

The ruling from the Sixth Circuit explaining why Charles' sentencing reduction was improper is available at this link. It makes for an interesting read, as it notes that back in 1996 Charles' "recommended guidelines range [was] 360 months to life, but [the sentencing court] varied upward and imposed a 420-month sentence based on Charles’ background and misconduct." (I highlight this line because it itself reflects how the passage of time distorts reality: the original sentencing court did not quite "vary" upward because the concept of a "variance" did not exist prior to the 2005 Booker decision.) 

The initial decision to impose a prison sentence of 35 years rather than just 30 years on Charles may have made perfect sense circa 1996.  As explained by the Sixth Circuit, the district court had to consider "Charles’ many prior offenses: kidnapping a woman on two consecutive days 'for the purpose of terrorizing her'; burglarizing a home; and fleeing from a police interrogation,
shooting a man in the head, and attempting to run off in the victim’s car."  But, obviously, Charles is now a much different man than the man he was when committing all these prior offenses.  But, just as obviously, modern federal sentencing law presents no way to give effect to changed realities because parole and other like mechanisms were vanquished through the Sentencing Reform Act of 1984.

I am a strong supporter of the FIRST STEP Act in part because it includes some parole-like features to enable the early release of offenders who have demonstrated rehabilitation potential in various ways.  (In my Federal Probation article, I describe certain prison reform efforts by Congress as a kind of "parole light.")  But I continue to think the federal system would be even better served by considering a more general return of parole, at least for sentences of a decade or longer, or at least considering the kind of second-look resentencing provisions (allowing judicial modification after serving 15 years of prison sentence) that have been put forward in the new American Law Institute's revised Modern Penal Code sentencing provisions (discussed here and here by leading academics).

May 29, 2018 in Drug Offense Sentencing, Examples of "over-punishment", Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (22)

Thursday, May 24, 2018

Amazing new empirical research in federal sentencing outcomes detailing disparities based on political background

This week brought this amazing new working paper by Alma Cohen and Crystal Yang titled simply "Judicial Politics and Sentencing Decisions." I did not want to blog about the paper until I had a chance to read it, and doing so make me want to now do dozens of blog posts to capture all the issues the paper covers and raises. The paper's simple abstract provides a hint of why the paper is so interesting and provocative:

This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge.  Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively.  These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.

Each of these three sentences could alone justify multiple postings on just research particulars: e.g., I believe a database with over 500,000 sentencings might be the largest ever assembled and analyzed; I wonder if the data looks different for Clinton and Obama judges among the Ds, for Nixon and Reagan and others judges among the Rs; I fear many judge characteristics like prior jobs and connections to certain communities are really hard to control for.  In other words, just the scope and methods of this research is fascinating.

Moreover and more importantly, there is great richness in the findings of the full paper.  For example, the authors find "statistically significant differences in racial gaps in base offense level and final offense level by judge political affiliation."  In other word, the authors have discovered worrisome disparities in how guideline ranges are set/calculated, not just in how judges sentence in reaction to a particular guideline range.   Some additional notable findings are summarized in this recent WonkBlog piece at the Washington Post headlined "Black defendants receive longer prison terms from Republican-appointed judges, study finds."  Here are excerpts:

Federal judges appointed by Republican presidents give black defendants sentences that are, on average, six to seven months longer than the sentences they give to similar white defendants, according to a new working paper from Alma Cohen and Crystal Yang of Harvard Law School.  That racial sentencing disparity is about twice as large as the one observed among judges appointed by Democrats, who give black defendants sentences that are three to four months longer than the sentences they give to white defendants with similar histories who commit similar crimes....

They did find, however, that the gap between sentences for black and white defendants was smaller for more-experienced judges than for less-experienced ones.  They also found that differences between how Republican and Democratic judges treat black and white defendants grew larger after the Supreme Court's 2005 decision in United States v. Booker, which gave federal judges much more leeway to depart from federal sentencing guidelines.

Importantly, however, they found that growing differences between Democratic and Republican judges in the post-Booker era are due to Democratic judges reducing disparities in how they sentence black and white defendants.  Given more discretion, in other words, Democratic judges treated defendants of different races more equally, while Republican judges continued to carry on as they had before.

Cohen and Yang also found one important geographical effect: Black defendants fared particularly poorly in states with high amounts of population-level racial bias, measured here by the percentage of white residents in a given state who believe there should be laws against interracial marriage.  These states tend to be clustered in the South, and previous research has shown a similar racial sentencing bias in these states when it comes to capital punishment.

Finally, they also observed an opposite effect in how Democratic and Republican judges treated female defendants: While all judges tended to hand down shorter sentences to women than to men charged with similar crimes, Republican judges were considerably more lenient to women.  “Overall, these results indicate that judicial ideology may be a source of the persistent and large racial and gender disparities in the criminal justice system,” Cohen and Yang conclude.

Anyone with any experience in the federal sentencing system knows full well how judicial ideology may be a source of the persistent and large disparities in the operation of the system. But reflecting on my own experiences as a defense attorney and expert in a number of federal sentencing settings, I am eager here to highlight how the impact of judicial ideology may be impacted by the work of other actors involved in the federal sentencing process. I often sense that those judges (perhaps disproportionately Republican Appointees) with an earned reputation as a "by the guideline" type may not consistently receive the same type of mitigating information from probation officers and defense attorneys as do those judges known often to depart or now vary.

If readers are as intrigued and engaged by this new paper as I am, please say so in the comments, and I may try to see if I can encourage some folks to write up some guest-postings about this research.

UPDATE: A helpful reader sent me this link to the full paper in case folks are not able to access it via the NEBR site.

May 24, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (10)

Monday, May 21, 2018

Without explanation, SCOTUS rejects vagueness challenges to pre-Booker mandatory application of career-offender guideline

It was a "civil" morning for US Supreme Court today, with two opinions from the civil side of its docket (one big, one little) and four cert grants on matters that are mostly civil and somewhat procedure (although one, Royal v. Murphy, deals with tribal jurisdiction over a capital prosecution).   But there was still some interesting news for sentencing fans in today's SCOTUS order list in the form of somewhat surprising denials of certiorari in cases dealing with the residue of the Johnson vagueness ruling for guideline-sentenced defendants before Booker make the guidelines advisory.

This part of this SCOTUSblog Relist Watch post by John Elwood from a few weeks ago spotlights cases I have had my eye on:

Lester v. United States17-1366, would justify readers in feeling a bit of déjà vu all over again. The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory.  If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States17-5684Gates v. United States17-6262James v. United States17-6769 (all relisted nine times) and Robinson v. United States17-6877 (relisted seven times). 

Sentencing gurus know that the Supreme Court in Beckles decided that the Court's big vagueness ruling in Johnson dealing with a key clause of the Armed Career Criminal Act did not entail constitutional problems for a parallel clause of the sentencing guidelines because the guidelines are now advisory, not mandatory.  But defendants in the cases above, which SCOTUS had been mulling over now for many months, were sentenced with the problematic parallel clause of the sentencing guidelines before Booker made the guidelines advisory.  But because judges could (and sometimes did) depart from the guidelines even before Booker made them mandatory (but cannot depart from applying ACCA), these cases presented an interesting and uncertain push-pull between the Johnson ruling and Beckles' gloss on its application.

I had been hoping that the collection of these cases as "serial relists" meant that SCOTUS was busy looking for the right vehicle for considering these post-Johnson matters.  But today, as noted above, certiorari was denied by the Supreme Court in all these cases without any explanation.  Of course, explanations for cert denials are not common.  But because relists often lead to a cert grant or at least some discussion by some justice of the issue, I am starting my week bummed that an interesting intricate piece of sentencing jurisprudence did not prompt any substantive SCOTUS engagement.

May 21, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Sunday, May 20, 2018

US District Judge Bennett explains why meth sentencing guidelines are wrong to treat "drug purity [as] a proxy for culpability"

Long-time readers know that US District Judge Mark Bennett has long made his post-Booker mark with thoughtful opinion explaining why various guidelines ought not merit full respect in light of the purposes of sentencing set forth in 18 USC § 3553(a). Judge Bennett's latest important sentencing work, which a helpful reader made sure I did not miss, comes in US v. Nawanna, No. CR 17-4019-MWB (D. Iowa May 1, 2018) (available here). Like so many of Judge Bennett's opinions, this latest ruling is a must-read for all who follow the federal sentencing system, and it starts and ends this way:

The United States Sentencing Guidelines differentiate between methamphetamine mixture and actual (pure) methamphetamine or "ice."  That difference is the primary basis for the defendant's motion for a downward variance.  Even though he is a first-time drug offender who has never been in prison, he argues that he faces a "breathtakingly high" Guidelines sentencing range of 360 months to life, where the methamphetamine at issue was treated as actual (pure) methamphetamine or ice.  He argues that the harsh methamphetamine Guidelines overstate his culpability and should be rejected on policy grounds.  Specifically, his argument, of first impression for me, is that the methamphetamine Guidelines are based on a flawed premise, set out in U.S.S.G. § 2D1.1, cmt. n.27(C), that drug purity is a proxy for culpability.

The prosecution responds that, although I am free to place whatever weight I wish on the various advisory Guidelines, the defendant's advisory Guidelines sentencing range is appropriate in this case, because it reflects the dangerous role the defendant played in dealing pure methamphetamine . Thus, this case requires me, once again, to consider the question of the merits of the advisory Guidelines sentencing range for a defendant convicted of methamphetamine offenses.  In United States v. Hayes, 948 F. Supp. 2d 1009 (N.D. Iowa 2013), I followed the lead of two other federal district judges by reducing a methamphetamine defendant's advisory Guidelines sentencing range by one third, on the basis of a policy disagreement with the methamphetamine Guidelines.  This sort of variance was for low level, non-violent, addict offenders.  This opinion, which supplements my rationale on the record at the defendant's sentencing hearing, explains why I find that a similar reduction, based on a different calculation, is appropriate in this case....

Exercising my discretion to reject the advisory Guidelines sentencing range for methamphetamine offenses on the basis of a policy disagreement, I determined that a downward variance was appropriate in Nawanna's case.  The reasons for rejecting the methamphetamine Guidelines, here, were independent of the reasons for rejecting the methamphetamine Guidelines set out in my decision in Hayes.  Here, I concluded that the methamphetamine Guidelines are based on a flawed assumption that methamphetamine purity is a proxy for role in the offense, which, like Judge Robert C. Brack of the District of New Mexico, I find "is divorced from reality." Ibarra-Sandoval, 265 F. Supp. 3d at 1255.  Nawanna's advisory Guidelines sentencing range of 360 months to life would be greater than necessary to accomplish the purposes of sentencing under 18 U.S.C. § 3553(a).  Instead, for the reasons stated, above, and on the record during Nawanna's sentencing hearing, Nawanna should be sentenced to 132 months incarceration.

May 20, 2018 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Thursday, May 17, 2018

US Sentencing Commission releases new research report on "The Criminal History of Federal Offenders"

Cover_2018-crim-histAs reported via this webpage, the US Sentencing Commission has released a new research publication titled simply "The Criminal History of Federal Offenders." The full report, available here, has lots of notable data and charts and graphs, and here is how the USSC summarizes its contents and key findings on its website:

Summary

The publication The Criminal History of Federal Offenders provides for the first time complete information on the number of convictions and types of offenses in the criminal histories of federal offenders sentenced in a fiscal year.

While the Commission has collected the criminal history points and Criminal History Category (CHC) as determined under the guidelines, it has not collected complete information on the number of convictions or the types of offenses in the criminal histories of federal offenders until now. The Commission is now able to utilize recent technological improvements to expand the scope of information it collects on an offender’s criminal history and provide a more complete assessment of the criminal history of federal offenders. In completing this report, the Commission collected additional details about the criminal histories for 61,946 of the 67,742 federal offenders sentenced in fiscal year 2016 for whom complete documentation was submitted to the Commission.

Key Findings

Key findings of the Commission’s study are as follows:

  • Almost three-quarters (72.8%) of federal offenders sentenced in fiscal year 2016 had been convicted of a prior offense. The average number of previous convictions was 6.1 among offenders with criminal history.

  • Public order was the most common prior offense, as 43.7 percent of offenders with prior criminal history had at least one conviction for a public order offense.

  • A conviction for a prior violent offense was almost as common as prior public order offenses, as 39.5 percent of offenders with criminal history had at least one prior violent offense. Assault was the most common violent offense (29.5%), followed by robbery (8.1%), and rape (4.4%). Just under two percent of offenders with criminal history had a prior homicide offense.

  • The nature of offenders’ criminal histories varied considerably by their federal instant offense.  The substantial majority (91.7%) of firearms offenders had at least one previous conviction compared to about half of fraud (52.4%) and child pornography (48.2%) offenders.  Firearms offenders were also most likely to have violence in their criminal histories, as 62.0 percent of firearms offenders with a previous conviction had a violent previous conviction.  Fraud offenders were the least likely of offenders with criminal history to have a violent previous conviction (26.2%).

  • Most (86.6%) federal offenders with criminal history had convictions that were assigned criminal history points under the guidelines.  Offenders who had at least one three-point conviction were the most likely of all offenders with convictions to have a murder (3.8%) or rape/sexual assault (7.0%) offense in their criminal histories.

  • A criminal history score of zero does not necessarily mean an offender had no prior criminal history. Almost one in ten offenders (9.8 percent) in fiscal year 2016 had a criminal history score of zero but had at least one prior conviction.

May 17, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (1)

Monday, May 07, 2018

Another round of criticisms of Prez Trump's decision to nominate Bill Otis to US Sentencing Commission

As reported in this prior post, Prez Trump back in early March announced these notable new nominations to the US Sentencing Commission.  As I have noted before, it is usually only hard-core sentencing nerds like me who pay much attention to USSC nominations.  But this slate of nominees, especially the nomination of Bill Otis, has led to more than the usual amount of focus on how Prez Trump is looking to put his stamp on the USSC.  I noted in this post back in March an array of critical commentary from media outlets like Mother Jones, Reason and Slate, and recently these two new commentaries have furthered this notable nominee chatter:

Here are some excerpts from the New Republic piece, with some notable quotes for and against the nominee:

The commission isn’t typically prone to partisan warfare. In fact, Congress created the seven-member body in 1984 precisely so it could avoid politicized battles when crafting federal sentencing guidelines. Otis’s nomination could upset that balance.

“He’s been the arch-nemesis of criminal-justice reform at the federal level for a decade at least,” Kevin Ring, the president of Families Against Mandatory Minimums (FAMM), told me. “He’s opposed basically every legislative reform, every reform the Sentencing Commission has passed, and just seems to enjoy that curmudgeonly position of saying no.”

FAMM, which advocates for sentencing reform through Congress and before the Sentencing Commission, has never endorsed or opposed a commission nominee before, preferring instead to work with those commissioners once they’re in office. But Otis’s nomination changed that. “He’s an ideologue in a position that is supposed to be driven by evidence and data,” Ring said....

If confirmed by the Senate, Otis would bring first-hand experience with the federal criminal-justice system under both Democratic and Republican presidents. Among the posts he held during three decades in the government are stints as a legal advisor to the Drug Enforcement Agency’s administrator, as a special counsel in the George W. Bush White House, and as a federal prosecutor in the eastern district of Virginia, where he led the office’s appellate division.

Otis’s nomination has raised alarm among pro-reform groups that see the commission as a key ally in reining in mass incarceration in America, and it’s at odds with the reformist zeitgeist that’s swept D.C. think tanks and advocacy groups on the left, right, and center. Organizations ranging from the American Civil Liberties Union to the Koch brothers’ political network have put muscle behind the effort to reduce over-incarceration in recent years. Lower crime rates also helped spur state and federal lawmakers to rethink harsh policies from a bygone era.

Not everyone is on board with the shift away from tough-on-crime politics, including Trump and Attorney General Jeff Sessions. But few are more vocal about it than Otis. “Although I am decidedly out-of-step with my learned colleagues inside the Beltway, and despite all the puff pieces in the press running in the other direction, I don’t feel lonely in opposing the more-crime-faster proposals marketing themselves as ‘sentencing reform,’” he wrote in 2014.

Otis declined to comment for this article, citing standard practices for pending judicial-branch nominees. Those who’ve worked with him say his appointment would bring a much-needed alternative perspective to the Sentencing Commission’s work. Kent Scheidegger, a California-based attorney and legal director of the Criminal Justice Legal Foundation, told me that he thinks it’s important to avoid a “uniformity of viewpoint” on the commission.

“[Otis] has a view that the rush to lessen sentences, particularly for serious crimes, is a mistake, that it’s going too far too fast, and that people who have the contrary view necessarily are opposed to that,” he said. Scheidegger shares that skepticism of reformers’ efforts, telling me, “I think they’re largely forgetting history and condemning us to repeat it.”

The two men are regular contributors to Crime and Consequences, a blog that discusses criminal-justice issues from a conservative perspective. Otis’s posts there offer brief but illuminating glimpses into how he approaches the subject. His central theme is straightforward and often bluntly expressed: that tough-on-crime policies helped bring down crime over the past 25 years, and scaling them back will cause crime to surge upwards once more....

Otis occasionally takes aim at perceived elites whom he casts as insulated from the consequences of their policy decisions. “When early release goes wrong, as it so often does, who pays the price?” he wrote in 2016. “The sentencing reform crowd at their posh, self-congratulatory, ‘we-are-so-humane’ parties in Manhattan and Hollywood, or the next unsuspecting victim they helped set up?”

But Otis’s views are also out of sync with a growing number of conservatives. Republican leaders in red states like Georgia and Texas have adopted measures aimed at reducing recidivism and lowering excessive prison populations. “Someone who doesn’t adapt to new ways of thinking that have actually proven to be a lot more effective than simply warehousing people for years on end — someone who can’t accept that reality — doesn’t really need to be on the Sentencing Commission,” Jason Pye, the vice president for legislative affairs at FreedomWorks, told me.

Scheidegger said the debate over Otis’s positions would be a net positive for the commission. “I think it’s a good nomination, and I think it’s important to keep it in the context of the whole panel, including representation on the other side of the aisle as well,” he told me. “That’s an important aspect of the nomination. Diversity of viewpoint on this subject is a good thing.”

Trump’s nominees to the commission are still awaiting Senate confirmation.  The other three are William Pryor, a Sixth Circuit Court of Appeals judge, as well as Third Circuit judge Luis Restrepo and federal district-court judge Henry Hudson.  Reform advocates told me they also had concerns about Hudson, who once went by the sobriquet “Hang ’em High Harry” as a prosecutor in the 1980s, but acknowledged he has plenty of practical experience as a sentencing jurist.

But Otis is still a bridge too far, they told me, even though many of them said they like him personally. “Part of the commission’s job is to take some of the politics away from the politicians,” Ring said. “You want sentencing to be driven by this commission as some insulation from Congress. And that’s the worst place for an ideologue from either side.”

Prior related posts:

May 7, 2018 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (31)

Tuesday, April 24, 2018

The challenge of modern federal sentencing: "there are 15 distinct factors in 3553(a)"

The line in quotes in the title of this post is a phrase that was uttered yesterday by Deputy Attorney General Rod Rosenstein during Supreme Court oral argument in Chavez-Meza v. United States. (The full argument transcript is available at this link.)  Based on my review of the transcript, I think DAG Rosenstein did himself proud before SCOTUS, and I am especially proud of his accounting of the many factors in 18 USC § 3553(a).

Specifically, I am keen on this accounting of the 3553(a) factors because I have long preached that there are four distinct sentence factors packaged in 18 USC § 3553(a)(1), which calls upon courts to consider "the nature and circumstances of the offense and the history and characteristics of the defendant."  Often when talking to students about a sentencing problem I give, I stress that plain text of § 3553(a)(1) indicates Congress wants judges to consider distinctly an offense's nature (drugs or fraud) as well as its circumstances (lengthy or limited); to consider distinctly a defendant's history (abused or educated) as well as his characteristics (remorseful or brazen).  I think DAG Rosenstein's statement that "there are 15 distinct factors in 3553(a)" is built upon counting § 3553(a)(1) as itself having four factors.

Moving beyond my own quirky affinity for § 3553(a)(1), I wonder if readers can readily think of any other area of federal law that calls upon judges to consider "15 distinct factors" as part of their decision-making.  I do realize that many capital sentencing statutes call upon juries and/or judges to balance or weigh even more factors that appear in 18 USC § 3553(a).  But I would be especially eager to hear from folks about other areas of law that but a comparable factor burden on federal judges.

April 24, 2018 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Sunday, April 22, 2018

"Addicted to Incarceration: A Federal Judge Reveals Shocking Truths About Federal Sentencing and Fleeting Hopes for Reform"

The title of this post is the title of this notable new article authored by Mark W. Bennett just posted to SSRN.  Here is its abstract:

A federal district judge who has sentenced more than 4,000 offenders in multiple districts shares his experience and criticisms of current federal sentencing.  The article begins with a history of federal sentencing, then focuses on problems related to mandatory minimum sentencing and application of 21 U.S.C. § 851 prior conviction enhancements in federal drug cases. The next section exposes the myth of empirical federal sentencing guidelines.  The final section offers eight specific suggestions for federal sentencing reform.

April 22, 2018 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4)

Thursday, April 19, 2018

Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?

The question in the title of this post is prompted in part by my work, recently and in prior years, on amicus briefs in which I have noted to the US Supreme Court that many judges and many commentators have suggested that the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court's further guidance on the contours of reasonableness review.   

A little more that a decade ago, the jurisprudential troika of Rita, Gall and Kimbrough provided an initial SCOTUS accounting of reasonableness review.  But it is now pretty easy to provide a string cite of commentary noting the mess that reasonableness review has become in the circuits.  See, e.g.,  Carrie Leonetti, De Facto Mandatory: A Quantitative Assessment Of Reasonableness Review After Booker, 66 DePaul L. Rev. 51 (2016) (lamenting disparate circuit approaches to reasonableness review creating a “patchwork of guideline sentencing in which defendants’ sentences are dictated more by the happenstance of geography than by the Supreme Court’s jurisprudence”); Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951 (2014) (discussing a “number of notable circuit splits” concerning reasonableness review); D. Michael Fisher, Still in Balance? Federal District Court Discretion and Appellate Review Six Years After Booker, 49 Duq. L. Rev. 641, 649-61 (2011) (noting that “the courts of appeals have differed over how to apply the [reasonableness] standard” and “have split on several important legal questions”).

My decision to gripe on this front today is also prompted by this pending cert petition in Ford-Bey v. US recently brought to my attention.  Here is the question presented to the Supreme Court in this petition:

In Rita v. United States, 551 U.S. 338 (2007), the Court held that an appellate court could presume that a procedurally reasonable within-Guidelines sentence is also substantively reasonable. But the Court stressed that the presumption was rebuttable, reflecting only that a sentence is more likely to be substantively reasonable where the district judge and the Sentencing Commission agree.

A decade later, the majority of Circuits have never found Rita’s presumption rebutted. In that time, fewer than ten defendants nationwide have succeeded in rebutting Rita’s presumption.  Here, the Fourth Circuit issued a routine per curiam affirmance, despite petitioner’s extraordinary post-sentencing rehabilitation — and despite the Commission’s 2012 decision to withdraw all guidance on post-sentencing rehabilitation.

Has Rita’s non-binding presumption of reasonableness become effectively binding?

April 19, 2018 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Lots of notable reporting and commentary as federal prison reform tries to move forward

As reported here last week, there was talk of a federal prison reform bill moving forward in the House of Representatives this week.  This article from The Hill, headlined "Prison reforms groups battle over strategy," highlights that folks on the left may be gumming up the works:

Progressive groups fighting for criminal justice reform are divided over legislation that would allow prisoners to finish their sentences in a halfway house, home confinement or under community supervision if they complete education, job training, drug treatment and other programs while behind bars.  The Leadership Conference for Civil Rights, American Civil Liberties Union and NAACP are among the groups saying that legislation that fails to reduce mandatory minimum sentences isn’t worth their support....

But #cut50, a criminal justice reform advocacy group led by Van Jones, the CNN host and former adviser to President Obama, sees the bill sponsored by Reps. Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.) that’s supported by the White House as an opportunity for positive change, even if it’s incremental. “It’s a bill that’s moving that we decided as a group we’ll hop in and try to make stronger because I think this is going to move with or without us,” said Jessica Sloan Jackson, the national director and co-founder of #cut50.

Instead of shooting it down, the group said it’s lobbying to make the Prison Reform and Redemption Act stronger.  Sloan Jackson acknowledged #cut50 would rather have the Collins–Jeffries bill include language that reduces mandatory minimum sentences, but recognized the criminal justice reform movement has shifted under Trump. She said #cut50 would like to at least win some changes to help people in prison.  “At this point in the process, I think it’s stupid not to even engage in conversations with folks on the right and in the White House just because you aren’t getting everything you want,” she said.

To supporters of broader reforms, however, the bill is a significant step down from legislation that nearly won approval in the last Congress.  That bill, sponsored by Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.), has been reintroduced and would eliminate certain mandatory minimum sentences for nonviolent drug offenses. It would also give judges more discretion in sentencing.

The Collins–Jeffries bill authorizes $50 million to be appropriated each year from 2018 to 2022 for the Bureau of Prisons to offer education, work training and other programming, but opponents say that’s not enough.  It also lists 48 different categories of crimes that make prisoners ineligible to earn time in pre-release custody for taking these programs, a provision groups backing broader reforms say excludes too many prisoners who are at a high risk of reoffending and need prison programming the most.  “By cutting out or limiting so many people to get incentives to programming you are missing the point,” said Kevin Ring, the president of Families Against Mandatory Minimums.

In a letter to members of the House Judiciary Committee on Friday, dozens of groups opposed to the bill said it would do little good if it does not reduce mandatory minimum sentences.  “Only front-end reforms have the power to significantly stem the tide of incarceration, reduce the exorbitant cost of the prison system, and give redress to those inside who are serving sentences that are disproportionate to the severity of the offense,” the groups wrote.

The Collins–Jeffries bill has won support from groups on the right that have backed minimum sentencing reforms. “We’re big advocates for commonsense sentencing reform as well and we hope that happens, but we want to get the ball rolling and we think prison reform is a great place to start,” said Mark Holden, Koch Industries’s general counsel and senior vice president....

Advocates say Jeffries and Collins have been negotiating possible changes to their bill, and a markup that had been expected this week was pushed back to provide time for their work.  In a joint statement to The Hill, Jeffries and Collins said their bill will reunite families and help thousands of Americans get back on their feet.

Similar report on these debates and developments are in this Politico article, headlined "Kushner’s prison-reform push hits bipartisan resistance: The son-in-law of President Donald Trump is pressing for a criminal justice bill that’s narrower than a bipartisan one that has stalled in Congress."  And Van Jones has this new CNN commentary that highlights his work and his support for a prison-reform-only bill under the headlined "Prison reform is possible even in the Trump era."

As long-time readers likely know, I am a strong believer that the best should not be the enemy of the good.  In this setting, I am especially eager to urge federal criminal justice reform advocates to secure ASAP any and whatever improvements they can.  I still can recall, though it is now nearly five years ago, when commentators were asserting that "momentum for sentencing reform could be unstoppable."  But from 2013 through 2016, despite a President, Attorneys General and many members of both parties advocating all sorts of federal sentencing reforms, not a single statutory change could make it through Congress to the desk of the President.   Meanwhile, hundreds of thousands of defendants have been (often over) sentenced to federal prison since 2013.  And while there, as Craig DeRoche highlights in a letter in the New York Times, these prisoners are stuck within a prison system that "offers drastically less opportunity for prisoners to transition to community corrections before the end of their sentence compared with almost all states."

Advocates are right to complain that a compromise bill with only prison reform is insufficient, but the fact that broader bills have been pushed and stalled for half-a-decade leads me to be more than ready to settle for half a loaf.  I have grow so tired of the reform talk that produces no result, though I am sure I am not as exhausted and frustrated as hundreds of thousands of federal prisoners, defendants and their families who have been clinging on to still empty promises of reform potential for year after year after year after year.  Van Jones has a couple of lines in his commentary that capture well my feelings here, as well as my desire to preserve some hope for this process:

My big heartache -- on this topic and so many others -- is how much common ground there is when you get people talking -- and yet how little we actually do about it.  Taking a small but meaningful step together now could allow us to take more steps together later.

April 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (3)

Thursday, April 12, 2018

US Sentencing Commission adopts (mostly minor?) 2018 guideline amendments

As reported in this official press release, "The United States Sentencing Commission unanimously voted on a slate of new amendments to the Guidelines Manual. Among other actions, the Commissioners voted to update the federal sentencing guidelines to address evolving challenges related to the distribution of synthetic drugs. The amendments reflect a collaborative, detailed, and data-driven approach to federal sentencing policy." Here are the substantive details:

At the meeting, the Commissioners approved a multi-part synthetic drugs amendment. The amendment draws upon public comment, expert testimony, and data analysis gathered during a multi-year study of synthetic drugs. Before today’s actions, many new synthetic drugs were not referenced in the federal sentencing guidelines. As a result, courts have faced expensive and resource-intensive hearings. The Commission’s actions reflect the evolving nature of these new drugs and will simplify and promote uniformity in sentencing these offenders.

Among today’s actions, the Commissioners voted to adopt a new guideline definition of the term “fentanyl analogue.” The change effectively raises the guideline penalties for fentanyl analogues to a level more consistent with the current statutory penalty structure. To address the severe dangers posed by fentanyl, the Commissioners also voted to adopt a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance (which equates to an approximate 50 percent increase in sentence).

The new amendment also establishes drug ratios and minimum offense levels for two new classes of synthetics drugs: synthetic cathinones (often referred to as “bath salts”) and synthetic cannabinoids (including, but not limited to, “K2” or “spice”). Following a multi-year study and series of public hearings with experts, the Commission found that synthetic cathinones possess a common chemical structure that is sufficiently similar to treat as a single class of synthetic drugs. The Commission also found that, while synthetic cannabinoids differ in chemical structure, the drugs induce similar biological responses and share similar pharmacological effects. In setting the new drug ratios, the Commission considered among other factors, the severity of the medical harms to the user, the current ratios applied in similar cases, known trafficking behaviors, and concerns for public safety. In recognition that potencies vary, the Commission also adopted departure language for drugs in a class that are more or less potent.

The Commission also voted to adopt a new application note providing that judges should consider alternative sentencing options for “nonviolent first offenders” whose applicable guideline range falls within Zones A or B. Eligible defendants must not have any prior convictions and must not have used violence, credible threats of violence, or possessed a firearm or other dangerous weapon in the offense. This narrowly-tailored amendment is consistent with the directive to the Commission in 28 U.S.C. § 994(j)....

At the meeting, the Commission also increased offense levels for certain Social Security fraud offenses to incorporate statutory changes resulting from the Bipartisan Budget Act of 2015. The Commission received valuable comment from the U.S. Senate Committee on Finance, the U.S. House of Representatives Ways and Means Committee, and the U.S. House of Representatives Judiciary Committee as well as the Social Security Administration. Today’s amendment provides for an enhancement and a minimum offense level for individuals who violate certain positions of trust (e.g., health care providers, claims representatives, and others) in a manner that addresses the seriousness and sophistication of these fraudulent schemes.

The Commission also voted to adopt the recommendations made by the Tribal Issues Advisory Group in its May 2016 report. The amendment provides a non-exhaustive list of factors that courts may consider in determining whether a prior tribal court conviction warrants an upward departure from the recommended sentencing range. The amendment also adds a definition for "court protection order” for purposes of applying an enhancement under the aggravated assault, harassment, and domestic violence guidelines. Other technical and miscellaneous amendments were also adopted at today’s public meeting.

As the press release also explains, these amendments "will be transmitted to Congress by May 1, 2018 [and if] Congress does not act to disapprove the amendments, they will go into effect on November 1, 2018." A reader-friendly version of the amendments are available at this link.

As the title of this post suggest, I think most of the amendments here can and should be described as fairly minor, save for the reworking of of the treatment of synthetic drugs. But I would welcome input from those more informed on the particular about anything here that might be especially blogworthy.

April 12, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Friday, April 06, 2018

AG Sessions announces new "zero-tolerance policy" for immigration offenses ... which could mean ... (a lot or no) more fast-track sentencing?

This new Department of Justice press release reports on a notable new announcement from the Attorney General. Here is the substantive heart of the release:

Attorney General Jeff Sessions today notified all U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien. The implementation of the Attorney General’s zero-tolerance policy comes as the Department of Homeland Security reported a 203 percent increase in illegal border crossings from March 2017 to March 2018, and a 37 percent increase from February 2018 to March 2018 — the largest month-to-month increase since 2011.

“The situation at our Southwest Border is unacceptable. Congress has failed to pass effective legislation that serves the national interest — that closes dangerous loopholes and fully funds a wall along our southern border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border,” said Attorney General Jeff Sessions. “To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice. To the Department’s prosecutors, I urge you: promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws — and as a result, our nation — are respected.”...

Today’s zero-tolerance policy further directs each U.S. Attorney’s Office along the Southwest Border (i.e., Southern District of California, District of Arizona, District of New Mexico, Western District of Texas, and the Southern District of Texas) to adopt a policy to prosecute all Department of Homeland Security referrals of section 1325(a) violations, to the extent practicable.

The one-page memo sent from AG Sessions to all federal prosecutors along the Southwest border is available at this link, and the title of this post flags the big follow-up question that I have.

As federal sentencing fans know, the large number of immigration cases historically prosecuted in border districts led to the creation of a special kind of sentencing adjustment (known as a "fast-track" departure) in order to speed case-processing through sentence reductions. If, as this AG Sessions memo suggests, prosecutors on the border are now going to be bringing even more immigration prosecutions, I would expect to see even more "fast-track" departures. But the memo above speaks of bringing the "full prosecutorial powers of the Department of Justice" to those "illegally entering this country." That language would arguably suggest that federal prosecutors ought not anymore be agreeing to lower sentences for offenses under 8 U.S.C. § 1325(a) now that we are to have a "zero-tolerance policy."

April 6, 2018 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, March 28, 2018

"Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment"

The title of this post is the title of this notable and timely new report from the US Sentencing Commission. Here is a summary of its coverage and findings from this USSC webpage:

The publication Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment analyzes recidivism among crack cocaine offenders who were released immediately before and after implementation of the 2011 Fair Sentencing Act Guideline Amendment, and followed in the community for three years.

In order to study the impact of retroactive sentence reductions on recidivism rates, staff analyzed the recidivism rate for a group of crack cocaine offenders whose sentences were reduced pursuant to retroactive application of the 2011 Fair Sentencing Act Guideline Amendment. Staff then compared that rate to the recidivism rate for a comparison group of offenders who would have been eligible to seek a reduced sentence under the 2011 amendment, but were released before the effective date of that amendment after serving their full prison terms less good time and other earned credits.

Key Findings

The Commission's report aims to answer the research question, "Did the reduced sentences for the FSA Retroactivity Group result in increased recidivism?".

Key findings of the Commission’s study are as follows:

  • The recidivism rates were virtually identical for offenders who were released early through retroactive application of the FSA Guideline Amendment and offenders who had served their full sentences before the FSA guideline reduction retroactively took effect. Over a three-year period following their release, the “FSA Retroactivity Group” and the “Comparison Group” each had a recidivism rate of 37.9 percent.

  • Among offenders who did recidivate, for both groups the category “court or supervision violation” was most often the most serious recidivist event reported. Approximately one-third of the offenders who recidivated in both groups (32.9% for the FSA Retroactivity Group and 30.8% for the Comparison Group) had court or supervision violation as their most serious recidivist event.

  • Among offenders who did recidivate, the time to recidivism for both groups were nearly identical. The median time to recidivism for offenders who recidivated in both groups was approximately 14½ months.

March 28, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (7)

Tuesday, March 27, 2018

SCOTUS day for considering rules for prison sentence modification based on changed guidelines

The US Supreme Court this morning hears oral argument in two cases involving application of 18 U.S.C. §3582(c)(2), which allows a federal judge to modify a federal prison term for a "defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission."  Here are links to the SCOTUSblog case pages and previews for both cases (the second preview I authored):

Hughes v. United States

Koons v. United States

Hundreds, perhaps thousands, of current federal prisoners might have their sentences directly impacted by these cases. Table 8 of the US Sentencing Commission's latest report on retroactive application of the reduction of the drug guidelines suggests that over 750 defendants may have been denied a reduced sentence based on the issue to be considered in Hughes and that nearly 3000 defendants may have been denied a reduced sentence based on the issue to be considered in Koons.  And, as always with criminal justice cases these days, I am especially interested to see if and how the new guy, Justice Gorsuch, approaches and frame the issue under consideration. 

March 27, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, March 15, 2018

"Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System"

The title of this post is the title of this notable new 80-page report issued today by the United States Sentencing Commission. Here is the USSC's Summary and account of Key Findings from this webpage:

This publication is the third in the Commission’s series on mandatory minimum penalties. Using fiscal year 2016 data, this publication includes analyses of the two statutes carrying a firearms mandatory minimum penalty, 18 U.S.C. § 924(c) (relating to using or possessing firearms in furtherance of drug trafficking or crimes of violence) and the Armed Career Criminal Act, 18 U.S.C. § 924(e), as well as the impact of those provisions on the Federal Bureau of Prisons (BOP) population. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report....

Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for firearms offenses. As part of this analysis, the Commission makes the following key findings:

Firearms mandatory minimum penalties continue to result in long sentences although they have decreased since fiscal year 2010.

  • In fiscal year 2016, offenders convicted under section 924(c) received an average sentence of over 12 years (151 months) of imprisonment, which is 13 months less than in fiscal year 2010. The average sentence length depended on the applicable mandatory minimum penalty under section 924(c), increasing from 118 months for the five-year mandatory minimum penalty to 302 months where a 30-year mandatory minimum penalty applied.
  • Similarly, in fiscal year 2016, offenders convicted of an offense carrying the 15-year mandatory minimum penalty under the Armed Career Criminal Act received an average sentence of over 15 years (182 months) of imprisonment, which is nine months less than in fiscal year 2010.
  • As a result of these long sentences, offenders convicted of an offense carrying a firearms mandatory minimum penalty continued to significantly contribute to the size of the Federal Bureau of Prisons’ population, constituting 24,905 (14.9%) of the 166,771 offenders in federal prison as of September 30, 2016.

Offenders charged with and convicted of multiple counts under section 924(c) received exceptionally long sentences as a result of the statutory requirement that the sentence for each count be served consecutively.

  • While only 156 (7.9%) of the 1,976 offenders convicted under section 924(c) in fiscal year 2016 were convicted of multiple counts under that statute, they received exceptionally long sentences. The average sentence for offenders convicted of multiple counts under section 924(c) exceeded 27 years of imprisonment (327 months), nearly two-and-a-half times the average sentence for offenders convicted of a single count under section 924(c) (136 months).
  • The average sentence for offenders who remained subject to the mandatory minimum penalty required by multiple counts under section 924(c) was even longer at almost 36 years (431 months).

In addition, other charging and plea decisions also play a significant role in the application and impact of firearms mandatory minimum penalties.

  • The majority of section 924(c) offenders (85.5%) were also convicted of another offense, which is consistent with the statutory requirement that an offender must have used or possessed a firearm during and in relation to, or in furtherance of, an underlying federal offense in order to be convicted under section 924(c).
  • Conversely, 14.5 percent of offenders were convicted of an offense under section 924(c) alone, although those cases necessarily involved another federal offense for which they were not charged and convicted.
  • Those offenders convicted of an offense under section 924(c) alone received an average sentence that was five years shorter than offenders convicted under section 924(c) and another offense (99 months compared to 159 months).

Statutory relief under 18 U.S.C. § 3553(e) for providing substantial assistance to the government plays a significant role in the application and impact of firearms mandatory minimum penalties.

  • The 21.6 percent of offenders who received relief from the mandatory minimum penalty under section 924(c) for providing substantial assistance received average sentences of 95 months, compared to 166 months for offenders who remained subject to the mandatory minimum penalty at sentencing.
  • The impact of receiving relief is even more pronounced for offenders convicted of multiple counts under section 924(c). Such offenders received average sentences that were less than one-third as long as offenders who remained subject to the mandatory minimum penalty required under section 924(c)—136 months compared to 431 months.
  • Similarly, almost one-fifth (19.7%) of offenders convicted of an offense carrying the mandatory minimum penalty under the Armed Career Criminal Act received relief for providing substantial assistance, and their average sentence was 112 months compared to 200 months for offenders who remained subject to the mandatory minimum penalty at sentencing.

While the rate at which firearms offenders were convicted of an offense carrying a mandatory minimum has been stable, the number of offenders convicted of offenses carrying such penalties has decreased significantly since fiscal year 2010.

  • Less than one-third (30.8%) of all firearms offenders in fiscal year 2016 were convicted of an offense carrying a mandatory minimum penalty, which is almost identical to fiscal year 2010 (30.6%).
  • However, between fiscal years 2010 and 2016, the number of offenders convicted under section 924(c) decreased from 2,360 to 1,976, a 16.2 percent decrease. The number of offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act decreased 51.4 percent from 626 to 304, which is the lowest number of such offenders since fiscal year 2002 (n=292).
  • Firearms offenses accounted for 16.8 percent of all offenses carrying a mandatory minimum penalty in fiscal year 2016 compared to 14.4 percent in fiscal year 2010.

Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group.

  • Black offenders were convicted of a firearms offense carrying a mandatory minimum more often than any other racial group. In fiscal year 2016, Black offenders accounted for 52.6 percent of offenders convicted under section 924(c), followed by Hispanic offenders (29.5%), White offenders (15.7%) and Other Race offenders (2.2%).
  • The impact on Black offenders was even more pronounced for offenders convicted either of multiple counts under section 924(c) or offenses carrying a mandatory minimum penalty under the Armed Career Criminal Act. Black offenders accounted for more than two-thirds of such offenders (70.5% and 70.4%, respectively).
  • Black offenders also generally received longer average sentences for firearms offenses carrying a mandatory minimum penalty than any other racial group. In fiscal year 2016, Black offenders convicted under section 924(c) received an average sentence of 165 months, compared to 140 months for White offenders and 130 months for Hispanic offenders. Only Other Race offenders received longer average sentences (170 months), but they accounted for only 2.2 percent of section 924(c) offenders.
  • Similarly, Black offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act received longer average sentences than any other racial group at 185 months, compared to 178 months for White offenders, 173 months for Hispanic offenders, and 147 months for Other Race offenders. 

March 15, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (1)

Tuesday, March 13, 2018

Another US Sentencing Commission public hearing on alternatives to incarceration and synthetic drugs

As noted in this prior post, last year the United States Sentencing Commission had a public hearing exploring alternatives to incarceration programs and synthetic drugs.  This webpage with the USSC hearing agenda has links to written testimony from all the scheduled witnesses at that prior 2017 heading, and this testimony provide a wealth of information and research about alternatives to incarceration and synthetic drugs.

Tomorrow, as detailed on this USSC webpage, the United States Sentencing Commission in scheduled to conduct another public hearing on these topics (in part because the USSC never formally moved forward with any guidelines amendments on these topics because of an incomplete membership). As the new hearing page details, "the purpose of the public hearing is for the Commission to receive testimony on proposed amendments to the federal sentencing guidelines related to Synthetic Drugs and First Offenders/Alternatives to Incarceration."

March 13, 2018 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Tuesday, March 06, 2018

Federal prosecutors seeking (way-below-guideline) sentence of 15 years for "Pharma Bro" Martin Shkreli

As reported in this new Reuters piece, "U.S. prosecutors on Tuesday said former drug company executive Martin Shkreli should spend at least 15 years in prison after being convicted of fraud, saying his lack of remorse and respect for the law justified a long time behind bars." Here is more, with a final point stressed for commentary:

The request by the Department of Justice came three days before Shkreli’s scheduled sentencing by U.S. District Judge Kiyo Matsumoto in Brooklyn federal court. Prosecutors called Shkreli “a man who stands before this court without any showing of genuine remorse, a man who has consistently chosen to put profit and the cultivation of a public image before all else, and a man who believes the ends always justify the means.”

Shkreli, 34, had requested a 12-to-18-month term following his conviction last August for lying to investors about the performance of his hedge funds MSMB Capital and MSMB Healthcare, and conspiring to manipulate the stock price of the drug company Retrophin Inc. Known as “Pharma Bro,” in part for his ability to attract attention, Shkreli is perhaps best known for raising the price of the anti-parasitic drug Daraprim by more than 5,000 percent in 2015, while serving as chief executive of Turing Pharmaceuticals, now called Vyera Pharmaceuticals....

Shkreli has been in jail since September, when Matsumoto revoked his bail after he offered social media followers $5,000 for a hair from former U.S. presidential candidate Hillary Clinton. On Monday, Matsumoto ordered Shkreli to forfeit $7.36 million of ill-gotten gains. She said he may be forced to give up assets such as a Picasso painting and a one-of-a-kind Wu-Tang Clan album if he cannot find the money....

In a letter to the judge last week, Shkreli said he accepted that he had made “serious mistakes,” but still considered himself “a good person with much potential.”

But prosecutors said that while in jail, Shkreli has privately expressed disdain for his conviction and the judicial process, providing further evidence he does not deserve mercy. It cited a January email conversation where Shkreli allegedly wrote “fuck the feds” and expressed hope for a big tax refund because only his “liquid money” was affected by the forfeiture. “Shkreli’s email communications confirm that any remorse he may express publicly is a carefully constructed facade,” prosecutors said.

A 15-year term is shorter than the minimum 27 years recommended under federal guidelines. Brafman has called that length “draconian and offensive.”

There is much in this story and in this high-profile sentencing that merits commentary, but I am especially struck by the decision by federal prosecutors to request a sentence here that is more than a decade below the advisory guideline range.  Recall that the May 2017 Sessions Memo said federal prosecutors "should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553. In most cases, recommending a sentence within the advisory guideline range will be appropriate."  This high-profile case is still more proof that federal prosecutors recognize that the applicable federal sentencing guidelines for at least some fraud offenses are not reasonable and can be unreasonable extreme by more than a decade.

Prior related posts:

March 6, 2018 in Federal Sentencing Guidelines, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

US Sentencing Commission releases 2017 Annual Report and Sourcebook of Federal Sentencing Statistics

2017-sourcebook-image_cropVia email, I just received this notice from the US Sentencing Commission about the publication of lots of new federal sentencing data:

Just Released

The United States Sentencing Commission’s 2017 Annual Report and 2017 Sourcebook of Federal Sentencing Statistics are now available online.

The Annual Report provides an overview of the Commission’s activities and accomplishments in fiscal year 2017.

The Sourcebook of Federal Sentencing Statistics presents tables, figures, and charts on selected district, circuit, and national sentencing data for fiscal year 2017. The Commission collected and analyzed data from more than 311,000 court documents in the production of this year’s Sourcebook.

I fear I won't be able to find all the time I would like to churn over all the notable data in these reports.  But I can already see from the start of the 2017 Annual Report some noteworthy data points, embedded in this overview of modern federal sentencing realities (with my emphasis added):

The Commission's data collection, analysis, and reporting requirements are impacted by the high volume of cases sentenced in the federal system annually. The Commission received approximately 310,000 documents for the 66,873 individual original sentencings that occurred in FY 2017.  To put this caseload in perspective, in FY 1995, the Commission received documentation for 38,500 original sentencings.  Select highlights from FY 2017 data are outlined below:

  • In FY 2017, the courts reported 66,873 felony and Class A misdemeanor cases to the Commission. This represents a decrease of 869 cases from the prior fiscal year.

  • The race of federal offenders remained largely unchanged from prior years.  In FY 2017, 53.2 percent of all offenders were Hispanic, 21.5 percent were White, 21.1 percent were Black, and 4.2 percent were of another race.  Non-U.S. citizens accounted for 40.7 percent of all offenders.

  • Drug cases accounted for the largest single group of offenses in FY 2017, comprising 30.8 percent of all reported cases. Cases involving immigration, firearms, and fraud were the next most common types of offenses after drug cases. Together these four types of offenses accounted for 82.4 percent of all cases reported to the Commission in FY 2017.

  • Among drug cases, offenses involving methamphetamine were most common, accounting for 34.6 percent of all drug cases.

  • Drug sentences remained relatively stable across all drug types in fiscal year 2017.  The average length of imprisonment increased slightly from FY 2016 in cases involving methamphetamines, from 90 months to 91 months, and also in marijuana cases, from 28 months to 29 months. In fiscal year 2017, 44.2 percent of drug offenders were convicted of an offense carrying a mandatory minimum penalty.

Overall, 79.8 percent of all sentences imposed in FY 2017 were either within the applicable guidelines range, above the range, or below the range at the request of the government.  Slightly less than half (49.1 percent) of all cases were sentenced within the guidelines range, compared to 48.6 percent in FY 2016.  In FY 2017, 20.1 percent of the sentences imposed were departures or variances below the guideline range other than at the government’s request, compared to 20.8 percent in fiscal year 2016.

March 6, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (2)

Thursday, March 01, 2018

Prez Trump makes (tough) nominations to US Sentencing Commission

Though there is much talk these days of Prez Trump and AG Jeff Sessions being at odds, the President today announced these new nominations to the US Sentencing Commission that I suspect are very much to the liking of Attorney General Sessions.  Here are the basics, with lots of commentary to follow (in this post and perhaps others):

Today, President Donald J. Trump announced his intent to nominate the following individuals to the United States Sentencing Commission:

If confirmed, Judge William H. Pryor Jr. of Alabama will serve as the Chairman of the United States Sentencing Commission. Judge Bill Pryor serves as a Circuit Judge of the United States Court of Appeals for the Eleventh Circuit, and as Acting Chairman of the United States Sentencing Commission....

If confirmed, Judge Luis Felipe Restrepo of Pennsylvania will serve as a Commissioner of the United States Sentencing Commission. Judge Phil Restrepo serves as a Circuit Judge of the United States Court of Appeals for the Third Circuit. Judge Restrepo was appointed to the Third Circuit in 2016 by President Barack Obama. Prior to his elevation to the Third Circuit, Judge Restrepo served for two and a half years as a United States District Judge for the Eastern District of Pennsylvania, a post to which he was also nominated by President Obama. Prior to his service on the United States District Court, Judge Restrepo served for seven years as a United States Magistrate Judge, practiced privately, and served as an Assistant Federal Public Defender in the Eastern District of Pennsylvania.

If confirmed, Judge Henry E. Hudson of Virginia will serve as a Commissioner of the United States Sentencing Commission. Judge Henry Hudson serves as a United States District Judge for the Eastern District of Virginia. Judge Hudson was appointed to the United States District Court bench in 2002 by President George W. Bush. Before his appointment to the Federal bench, Judge Hudson served as a Virginia circuit judge for Fairfax County, Director of the United States Marshals Service, as the Senate-confirmed United States Attorney for the Eastern District of Virginia, and as the elected Commonwealth’s Attorney for Arlington County, Virginia.

If confirmed, William Graham Otis of Virginia will serve as a Commissioner of the United States Sentencing Commission. Bill Otis serves as an Adjunct Professor of Law at Georgetown University Law Center. Before joining the faculty at Georgetown, Mr. Otis served in the Federal Government for 29 years. Over this period, Mr. Otis served as Counselor to the Administrator of Drug Enforcement Administration during the George W. Bush presidency, as an Assistant United States Attorney and Chief of the Appellate Division of the United States Attorney’s Office for the Eastern District of Virginia (under both Democrat and Republican Administrations), and as Special Counsel to President George H.W. Bush.

Regular readers may recall this post from August 2017 linking to a Wall Street Journal article reporting that "Attorney General Jeff Sessions is urging the White House to nominate a federal judge and tough-on-crime ex-prosecutor once nicknamed “Hang ’Um High” Henry Hudson" to the USSC.  But regularly readers are likely even more familiar with the name Bill Otis, because he was once a regular commentor on this blog and has long been a prominent person who prominently shares his (tough-on-crime) sentencing perspectives in many media.  I have to guess that AG Sessions was also happy to see Bill's name on this list as well (and I have already noticed on twitter a few folks who are not happy to see Bill's name on this list).  I am personally very friendly with Bill Otis (and his famous wife), and we have spent considerable time disagreeing on many sentencing matters without being too disagreeable. 

I also suspect AG Sessions is also quite pleased to see his Alabama pal, Judge Bill Pryor, getting officially tapped to serve as Chair of the US Sentencing Commission (which he has been serving as in the acting capacity for over a year).  I have long been intrigued and impressed by Judge Pryor's views on a range of sentencing issues, and I have been particularly pleased with the many kinds of new data reports the USSC has been producing during his short time as Chair.

Last but not least, though I do not know too much about Judge Luis Felipe Restrepo, I am pleased to see a former defense attorney named to the USSC to balance out all the potent new prosecutorial perspectives.  I am not sure if this "slate" of nominations have already been in some way blessed or vetted by key members of the Senate Judiciary Committee, but I am sure that the nomination of Judge Restrepo may well be intended as, and may rightly be seen as, one way to get Senators on both sides of the aisle to be comfortable with all of these nominees. 

March 1, 2018 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4)

Wednesday, February 28, 2018

"Pharma Bro" Martin Shkreli, facing decades under guidelines, seeks prison sentence of 12-18 months

As reported in this Reuters article, "Martin Shkreli, the former drug company executive convicted of defrauding investors in two hedge funds he ran, has asked a federal judge to sentence him to 12 months to 18 months in prison, much less than suggested federal guidelines."  Here is more:

Shkreli, 34, has been in jail since September, when U.S. District Judge Kiyo Matsumoto revoked his bail after he offered a $5,000 bounty for a strand of Hillary Clinton’s hair in a Facebook post.  Matsumoto is scheduled to sentence him on March 9.

Shkreli’s lawyers said in a court filing on Tuesday that a sentence of 27 years or more calculated using federal guidelines would be “draconian and offensive.” The filing included a letter from Shkreli, asking the judge for leniency.  “I accept the fact that I made serious mistakes, but I still believe that I am a good person with much potential,” he said.

In addition to the prison sentence, they proposed Shkreli complete 2,000 hours of community service and undergo court-mandated therapy....

Shkreli, nicknamed “Pharma Bro,” raised the price of anti-infection drug Daraprim by over 5,000 percent in 2015 while he was chief executive officer of Turing Pharmaceuticals.  A jury found him guilty last August of unrelated securities fraud charges.  They determined that he lied to investors about the performance of his hedge funds, MSMB Capital and MSMB Healthcare.  He also was found guilty of conspiring to manipulate the stock price of a drug company he founded, Retrophin Inc.

Shkreli’s investors eventually came out ahead after he paid them in shares of Retrophin, and in some cases through settlement agreements and consulting contracts with the company, according to testimony at trial.  However, Matsumoto ruled Monday that he would still be held responsible for defrauding investors out of millions of dollars, because he secured their investments through fraud.

Shkreli’s lawyers said in the filing that he made mistakes when communicating with his investors not because he wanted to steal from them, but because he “could not bring himself to admit failure.”  They also tried to counter the view that Shkreli was the “greedy Pharma Bro.” They pointed to his work at Retrophin to develop a drug for a rare childhood degenerative disease called PKAN that was used to treat some patients in Cyprus, as well as online relationships he has maintained with patients.  Even the controversial Daraprim price hike was meant to fund research into rare diseases, they said.

The filing included dozens of letters supporting Shkreli, including from family members and a former Turing employee who praised his “altruistic passion.”

Prior related post:

February 28, 2018 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1)

Friday, February 23, 2018

Interesting sentencing details as former Trump campaign official Rick Gates pleads guilty and faces significant prison time

In this post from October following their indictment, I highlighted that former campaign officials for Prez Trump, Paul Manifort and Rick Gates, could be facing very significant prison terms in light of the charges and potentially applicable sentencing guidelines. Today, as reported here by BuzzFeed News, "Rick Gates, a former Trump campaign aide and longtime associate of former Trump campaign chair Paul Manafort, pleaded guilty on Friday in the criminal case brought by special counsel Robert Mueller's office." And the BuzzFeed News report includes these interesting legal and practical sentencing particulars:

The two counts in the new criminal information each have a maximum penalty of five years in jail. According to Gates' plea agreement with the special counsel's office, he faces an estimated sentencing guidelines range of between 57 and 71 months in jail and a fine between $20,000 and $200,000; those numbers could change when the guidelines range is ultimately calculated, the judge noted.

Gates' lawyer Thomas Green told the judge that he reserved the right to argue for a lower sentence based on Gates' "disproportionate conduct" as compared to Manafort. Gates has agreed to cooperate with the special counsel's office. If prosecutors determine he has "provided substantial assistance," they have agreed to file a motion asking for a downward departure from the sentencing guidelines range. When Gates is sentenced, the government will dismiss the remaining counts in the original indictment as well as the new charges filed in Virginia.

As part of the plea deal, Gates agreed to delay his sentencing to give him time to cooperate. Asked how far out into the future the judge should set a deadline for the government to update the court on the status of the case, special counsel prosecutor Andrew Weissmann suggested three to four months. US District Judge Amy Berman Jackson set a deadline for a status report for May 14.

Gates spoke little during the plea hearing. He and Green declined to speak with reporters after the hearing as he exited the courthouse and got into a car.  He'll remain free pending sentencing, albeit subject to continued GPS monitoring and certain limits on his ability to travel beyond his home city of Richmond, Virginia.  He also had to agree to forfeit certain assets if he fled or failed to show up to court.

The folks at Lawfare have Gates's superseding criminal information and plea agreement now posted at this link. That agreement explains the ways in which the parties determine that "the applicable Guidelines Offense Level will be at least 25" which means the "estimated Sentencing Guidelines range is 57 months to 71." The plea agreement also speaks to potential departure arguments this way:

Your client agrees that, solely for the purposes of calculating the applicable range under the Sentencing Guidelines, a downward departure from the Estimated Guidelines Range set forth above is not warranted, subject to the paragraphs regarding cooperation below and the argument that the Guidelines do not adequately reflect the defendant's role in the offense.  Accordingly, you will not seek any departure or adjustment to the Estimated Guidelines Range set forth above, nor suggest that the Court consider such a departure or adjustment for any other reason other than those Specified above.  Your client also reserves the right to disagree with the Estimated Guideline Range calculated by the Office.  However, your client understands and acknowledges that the Estimated Guidelines Range agreed to by the Office is not binding on the Probation Office or the Court.  Should the Court or Probation Office determine that a different guidelines range is applicable, your client will not be permitted to withdraw his guilty plea on that basis, and the Government and your client will still be bound by this Agreement.

February 23, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (12)

Thursday, February 22, 2018

"These guidelines exist in some kind of middle universe that I don't understand..."

1204504745fullresThe title of this post is one of my (many) favorite lines appearing in this Supreme Court oral argument transcript from yesterday's proceedings in Rosales-Mireles v. United States.  The case addresses whether a (small) guideline error will usually satisfy the plain error standard for correction of an error raised only on appeal, and I highly recommend that sentencing fans read the entire transcript.  There are too many amusing and interesting flourishes throughout the transcript to cover them all here, but this one little passage from early in the second part of the argument that provides a flavor of the overall direction of Justices' approach to this case:

JUSTICE KAGAN:  Mr. Ellis [Assistant to the Solicitor General arguing for the prosecution], Justice Gorsuch, when he was a judge, wrote this opinion which I'm sure you've read many times, and I just want to quote one sentence from it and then ask you what you think about it because he basically, you know, suggests why you maybe lose.

This rev up to a question from Justice Kagan is only one of many part of the transcript that leads me to think basically, you know, the government is going to lose this case. Evan Lee in his SCOTUSblog preview of the Rosales-Mireles argument highlighted effectively why this case is sure to be an up hill climb for the government, and little in this transcript suggests otherwise.

I have not yet noted who spoke the line I have used in this title of this post, and I suppose at this point it would be fun to encourage readers to guess.  I suspect hard-core Court watchers with sentencing affinity may readily be able to figure out who said this, but arguably any and every Justice (and any and every judges and any and every practitioner) sometimes feels that, post-Booker, the guidelines exist in some kind of "middle universe." 

At the risk of making inappropriate suggestions, I do think the Justice who spoke this particular line might be able to engender a special kind of new fandom if in the future he were to suggest that the federal sentencing guidelines "exist in some kind of Middle Earth." With a single line, J.R.R. Tolkien fans might start showing up at US Sentencing Commission hearings as well as giving this Justice the kinds of adoration some colleagues get. And then my students will finally understand why I often walk around clutching the US Sentencing Guidelines Manual saying "My Precious."

UPDATE: I see that Evan Lee now has this "Argument analysis" up at SCOTUSblog under the heading "Justices hint at categorical approach to correcting forfeited Sentencing Guidelines errors." Here is how it starts:

Sometimes, an appellate court uses oral argument to help it decide who ought to win.  Other times, the justices know who will win, and oral argument becomes an opportunity for the judges to use counsel as a sounding board as to how the opinion should be written. W ednesday’s Supreme Court oral argument in Rosales-Mireles v. United States had the earmarks of the latter.

February 22, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Sunday, February 18, 2018

Report that Mueller probe will soon produce another notable conviction and federal sentencing

A couple of month ago, as reported in this post, the investigation by special counsel Robert Mueller produced its first federal conviction when Michael Flynn pleaded guilty to lying to the FBI.   Now the Los Angeles Times is reporting here that another plea and another notable plea deal is in the works for another figure indicted by Mueller's team. Here are some of the basics (along with some sentencing details and a reminder of how economic issues can impact a defendant's decision-making):

A former top aide to Donald Trump's presidential campaign will plead guilty to fraud-related charges within days — and has made clear to prosecutors that he would testify against Paul Manafort, the lawyer-lobbyist who once managed the campaign.

The change of heart by Trump's former deputy campaign manager Richard Gates, who had pleaded not guilty after being indicted in October on charges similar to Manafort's, was described in interviews by people familiar with the case. "Rick Gates is going to change his plea to guilty," said a person with direct knowledge of the new developments, adding that the revised plea will be presented in federal court in Washington "within the next few days."

That individual and others who discussed the matter spoke on condition of anonymity, citing a judge's gag order restricting comments about the case to the news media or public. Gates' defense lawyer, Thomas C. Green, did not respond to messages left by phone and email. Peter Carr, a spokesman for special counsel Robert S. Mueller III, declined on Saturday to comment....

The imminent change of Gates' plea follows negotiations over the last several weeks between Green and two of Mueller's prosecutors – senior assistant special counsels Andrew Weissmann and Greg D. Andres.

According to a person familiar with those talks, Gates, a longtime political consultant, can expect "a substantial reduction in his sentence'' if he fully cooperates with the investigation. He said Gates is likely to serve about 18 months in prison.

The delicate terms reached by the opposing lawyers, he said, will not be specified in writing: Gates "understands that the government may move to reduce his sentence if he substantially cooperates, but it won't be spelled out."

One of the final discussion points has centered on exactly how much cash or other valuables — derived from Gates' allegedly illegal activity — that the government will require him to forfeit as part of the guilty plea.

Gates, 45, who is married with four children, does not appear to be well positioned financially to sustain a high-powered legal defense. "He can't afford to pay it," said one lawyer who is involved with the investigation. "If you go to trial on this, that's $1 million to $1.5 million. Maybe more, if you need experts" to appear as witnesses.

The Oct. 27 indictment showed that prosecutors had amassed substantial documentation to buttress their charges that Manafort and Gates — who were colleagues in political consulting for about a decade — had engaged in a complex series of allegedly illegal transactions rooted in Ukraine. The indictment alleged that both men, who for years were unregistered agents of the Ukrainian government, hid millions of dollars of Ukraine-based payments from U.S. authorities.

In this post after the Rick Gates was indicted along with Paul Manifort, I briefly sketched how guideline calculations could push their possible benchmark sentencing ranges into many years and even decades. Given these realities, I will be very interested to see if and how a plea deal for Gates might set out guideline calculations. As the press report suggests, Gates could and seemingly will be getting his sentence significantly reduced via 5K1.1 of the federal sentencing guidelines by providing "substantial assistance in the investigation or prosecution of another person who has committed an offense."   One cannot help but wonder is any person other than Manifort could be the subject of Gates' assistance to federal authorities.

February 18, 2018 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (6)

Saturday, February 10, 2018

Should there be (and will there be) an appeal of federal judge's imposition of "shorter sentence because ... of [defendant's] decision to be sterilized"?

Mf-law-day-bbf-3-5-4-15-300x160In this post a couple of days ago, I noted the remarkable federal sentencing story out of Oklahoma in which a defendant was seemingly seeking a reduced sentence in a fraud case because she followed a judge's suggestion in this order that she consider taking steps to be "rendered incapable of procreation."  This follow up article, headlined "Oklahoma woman gets shorter prison sentence because she got sterilized," the defendant's decision to follow the judge's suggestion seemingly reduced her sentence a few months. Here are the details:

A judge Thursday showed leniency to a drug-using mother of seven because she had surgery to prevent further pregnancies.  Summer Thyme Creel, 34, was sentenced to a year in federal prison and three years on supervised release for passing counterfeit checks.  She was ordered to pay $15,246 in restitution.

Creel voluntarily underwent the medical procedure in November after the Oklahoma City federal judge suggested it in a scheduling order. "She will receive a shorter sentence because she made that decision," U.S. District Judge Stephen Friot said before announcing the punishment.  Friot on Thursday also defended his sterilization suggestion, saying the U.S. Supreme Court "has yet to recognize a constitutional right to bring crack- or methamphetamine-addicted babies into this world."

In his order last June, the judge called Creel a habitual user of crack cocaine and methamphetamine. He wrote in that order she had given up her parental rights to six of her seven children and likely had used illegal drugs while pregnant.  He then wrote he would consider at sentencing medical evidence Creel had undergone a sterilization procedure "if (and only if) she chooses to do so."

Creel had faced up to 16 months in federal prison under sentencing guidelines intended to keep punishments uniform across the country.  Judges do not have to follow the guidelines, though, and the maximum possible punishment for Creel's offense was 10 years in prison.  The unusual order — first reported by The Oklahoman — attracted national and international attention.  The judge has been both praised and condemned.

"When I read the order, I was horrified,” Lynn Paltrow, founder of the National Advocates for Pregnant Women, told The Washington Post. "We find it highly unlikely that this judge has asked any man how many children he fathered and used that in his sentencing determination."  The judge Thursday did not directly comment on the public criticism.

He did state his order last year had made clear that "the decision as to whether to be sterilized would be for Ms. Creel and Ms. Creel alone to make." He also explained he would not have counted it against Creel if she had decided against the procedure. "She would have come before the court in the same posture as any other habitual criminal," he said. "Her fertility would have been a non-issue."

The judge chided a prosecutor for telling him in a sentencing memorandum Creel has "a fundamental constitutional right to procreate." The prosecutor in the memo had cited a 1942 U.S. Supreme Court decision that found unconstitutional Oklahoma's Habitual Criminal Sterilization Act. "This is rather curious," the judge said of the prosecutor's position on the issue. The judge then pointed out the 1942 decision had involved involuntary sterilization. He said the prosecutor apparently overlooked that fact.

Creel was punished Thursday for her involvement in a fraudulent check-cashing ring that used information from stolen mail to manufacture counterfeit checks. "Theirs was a systematic and successful identity theft scheme," the judge said.  She pleaded guilty last year to one federal counterfeiting offense.  She admitted she had passed a $202.22 counterfeit check in 2014 at a Walmart in Moore.

She has prior theft and counterfeit check convictions in county courts but always received probation.  She originally had sought probation in her federal case. That possibility ended when she was arrested for passing a $121.71 counterfeit check at a Hobby Lobby in Midwest City a month after pleading guilty.

She also has tested positive for methamphetamine use — twice — since her guilty plea. The second time, the judge had her jailed pending sentencing. Her defense attorney, Brett Behenna, told the judge Creel has had a tough life and became caught in a cycle of poverty. He said she turned to illegal drugs as an escape....

"I'm sorry for the mistakes that I made," Creel told the judge. Another participant in the scheme, Amber L. Perkins, 43, was sentenced last March to five years in prison and ordered to pay $159,753 in restitution.

This five-page order that the Judge Friot issued in conjunction with the sentencing leaves no doubt that the defendant's sterilization decision was a consequential factors in his sentencing decision. Here are the closing paragraphs of the order:

If anything was clear from the court’s June order, it was that the decision as to whether to be sterilized would be for Ms. Creel and Ms. Creel alone to make.  The short of the matter is that Ms. Creel will get the benefit of her decision to be sterilized.  She will receive a shorter sentence because she made that decision.  But a decision not to be sterilized would not have counted against Ms. Creel for sentencing purposes — she would have come before the court in the same posture as any other habitual criminal. Her fertility status would have been a nonissue.  Moreover, if we assume, as the government urges, that the court’s approach to sentencing in this case might raise a constitutional issue, the court will note that the Supreme Court has yet to recognize a constitutional right to bring crack or methamphetamine addicted babies into this world.

Accordingly, in determining the sentence to be imposed upon Ms. Creel, the court will take into account all of the factors spelled out in 18 U.S.C. § 3553, a determination which will give Ms. Creel the benefit of her decision to be sterilized.

As federal sentencing gurus know, any appeal of this sentencing proceeding would be generally subject to a reasonableness standard of review. Though I have not read the full record, I am still inclined to consider Judge Friot's work here unreasonable because he unduly suggested that sterilization was an essential (and perhaps exclusive) way for this defendant to "earn" a below-guideline sentence. 

I generally believe (and often have argued) that a wide range of considerations can and should be brought to bear as a federal sentencing judge considers, under 18 U.S.C § 3553(a), what sentence will be "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress.  But it strikes me as highly problematic for a judge, prior to sentencing, to tell a defendant that a reduced sentence will be possible if (and perhaps only if) the defendant engages in specific life-altering personal behavior.  The procreation dynamics here are particularly concerning in light of some ugly history on this front; but I would also be troubled if a judge said to a defendant, for example, I will likely cut you a sentencing break only if you divorce that spouse who pressured you into criminal activity or only if you contractually commit to giving 50% of all future salary to charity.

That all said, and as my post title suggests, I suspect that there will not be an appeal of this sentence by the federal government (or the defense) and so we will not likely see a higher court reviewing Judge Friot's work here.  But, of course, that should not prevent the court of public opinion from chiming in, perhaps using the comments here.

Prior related post:

February 10, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (4)

Thursday, February 08, 2018

Should (encouraged!?!) sterilization be a permissible federal sentencing factor in mitigation?

The question in the title of this post is prompted by a remarkable federal sentencing story out of Oklahoma reported in this local article headlined "Woman underwent sterilization procedure at judge’s suggestion." Here are the details:

At a judge's suggestion, an admitted drug user involved in a counterfeit check ring underwent a medical procedure preventing her from having more children.

Summer Thyme Creel, 34, had the elective procedure in November after the judge wrote he could consider it at her sentencing if she chose to do so. Her sentencing is now set for Thursday in Oklahoma City federal court.

U.S. District Judge Stephen Friot made the unusual suggestion in an order last June. He noted in the order Creel had given up her parental rights to six of her seven children and likely had used illegal drugs while pregnant with some of them. "I spoke with her in detail about it and she voluntarily wanted to do it," her court-appointed defense attorney, Brett Behenna, said.

A prosecutor is urging the judge not to consider the procedure as a factor at sentencing. "Creel not only has a fundamental constitutional right to procreate ... but she admits that she had an interest in an elective sterilization procedure even before the court's order of June 16," Assistant U.S. Attorney Jessica Perry told the judge in a sentencing memo.

"Furthermore, Creel's decision to have (or not have) additional children is sufficiently removed from the type of criminal activity involved in this case that such a factor is irrelevant to determining a sentence," the prosecutor wrote.

Creel has a lengthy criminal record involving theft and counterfeit check crimes. She is listed in court records over the last two years at addresses in Oklahoma City, Checotah and Lawton. She was charged for the first time in federal court in 2016. A federal grand jury alleged she and others participated in a counterfeit ring that relied on mail stolen from mailboxes.

Creel pleaded guilty a year ago to a single count in the indictment for using a $202.22 counterfeit check at a Walmart in Moore in 2014. Her sentencing has been delayed for a number of reasons, the first time because she couldn't show up in court. She was in the Oklahoma County jail for using a counterfeit check at a Hobby Lobby in Midwest City....

In delaying the sentence the first time, the judge made note of both Creel's criminal past and her history as a mother. "By virtue of a series of relationships with various sires over approximately the last 14 years, Ms. Creel has given birth to seven children out of wedlock," the judge wrote in the June order.

"Comparing the dates of Ms. Creel's periods of habitual use of crack cocaine and methamphetamine ... with the dates of birth of her seven children, it appears highly likely that some of Ms. Creel's children were conceived, carried and born while Ms. Creel was a habitual user of these illicit substances," the judge wrote.

"It comes as no surprise, therefore, that, in 2012, Ms. Creel relinquished her parental rights with respect to six of her seven children 'after an Oklahoma Department of Human Services investigation for failure to protect the children from harm.' Her seventh child was born in 2016," the judge wrote.

The judge then pointed out he can consider at sentencing any information concerning the background, character and conduct of an offender. Finally, he told Creel in his order that at her sentencing she "may, if (and only if) she chooses to do so, present medical evidence to the court establishing that she has been rendered incapable of procreation."

The June order referenced in this story, which runs only two pages, can be accessed at this link.  It closes by noting that Congress has provided via 18 U,S.C § 3661 that "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." I am inclined also to note that in 18 U.S.C § 3553(a)(1) Congress ordered federal judges to consider "the history and characteristics of the defendant" at sentencing.  So there is certainly a statutory basis for Judge Friot to defend his approach to Ms. Creel's case.  I am eager to hear readers' thoughts as to whether Judge Friot's approach is sound and wise even if it may be statutorily defensible.

February 8, 2018 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, February 07, 2018

Sentencing Reform and Corrections Act of 2017 on the agenda for the Senate Judiciary Committee coming meeting

A helpful colleague made sure I saw the exciting news appearing at the very bottom of this agenda for an Executive Business Meeting of the United States Senate Committee on the Judiciary.  After a long list on nominees, we see on that agenda this item:


II. Bills
S.1917 Sentencing Reform and Corrections Act of 2017 (Grassley, Durbin, Graham, Feinstein, Lee, Leahy, Flake, Whitehouse, Klobuchar, Booker)   

I think this notice means that there is now some tangible movement (dare I say momentum) on one very significant federal criminal justice proposal.  Clicking though to the text of S.1917 Sentencing Reform and Corrections Act of 2017, one discovers that this bill has a whole lot of stuff stuffed into its three big sections. For example, "TITLE I — SENTENCING REFORM" includes, inter alia:

Sec. 101. Reduce and restrict enhanced sentencing for prior drug felonies."

Sec. 102. Broadening of existing safety valve....

Sec. 106. Mandatory minimum sentences for domestic violence offenses....

Sec. 108. Inventory of Federal criminal offenses.

Sec. 109. Fentanyl.

And "TITLE II — CORRECTIONS ACT" includes, inter alia:

Sec. 202. Recidivism reduction programming and productive activities.

Sec. 203. Post-sentencing risk and needs assessment system....

Sec. 207. Promoting successful reentry.

Sec. 208. Parole for juveniles.

Sec. 209. Compassionate release initiative.  

And "TITLE III — NATIONAL CRIMINAL JUSTICE COMMISSION ACT" would create another notable federal criminal justice entity.

I can state with confidence that Attorney General Jeff Sessions is surely opposed to the provisions in Title I of this bill, but I he may be supportive of Title II and maybe even Title III. And, of course, since he is no longer in the Senate, Jeff Sessions does not get a vote on legislation, and it will be interesting to see (assuming there is a vote tomorrow of sometime soon) whether there are many (or any) strong opponents of this bill even in this huge form.

February 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Tuesday, January 30, 2018

A SCOTUS amicus opportunity to reiterate some of my views on sentence finality

The Supreme Court has three(!) upcoming arguments concerning the proper application of the federal prison term modification rules that Congress set out in 18 U.S.C. § 3582(c)(2): Hughes v. United States and Koons v. United States are due to be argued March 27, and Chavez-Meza v. United States will likely be argued in late April.  The fact that the SCOTUS has decided to take up three cases dealing with § 3582(c)(2) highlights the range of intricate issues that sentence modification motions can present.  And the first of these cases, Hughes, deals with the initial issue of who is even eligible for sentence modification and presents further questions about how to deal with the 4-1-4 divide among the Justices in the leading prior ruling of Freeman v. United States, 564 U.S. 522 (2011).

As readers know, I have written up some of my perspectives on "sentence finality" in an law review article, "Re-Balancing Fitness, Fairness, and Finality for Sentences", and in a number of prior posts (some of which are reprinted below).  I was encouraged recently to channel some of these ideas into an amicus brief in Hughes, and a terrific set of lawyers at Sidley Austin LLP played the leading and central role in making this amicus brief a reality.  Here is the "Summary of Argument" from this just-filed brief:

The standard presumption in favor of finality for criminal judgments need not and should not be elevated over other critical criminal justice interests when a defendant seeks only to modify an ongoing prison sentence based on new legal developments.  See Douglas A. Berman, Re-Balancing Fitness, Fairness, and Finality for Sentences, 4 Wake Forest J.L. & Pol’y 151, 174–75 (2014). Through sentence-modification provisions like the one at issue in this case, see 18 U.S.C. § 3582(c)(2), Congress has expressed its concerns for those other criminal justice interests by creating a significant sentencing exception to the usual presumption in favor of finality.  Appreciating the importance of getting sentences right while an offender is still serving a prison term, Congress has astutely elevated substantive sentencing goals like accuracy, fairness, and uniformity over concerns about finality in this context.  Section 3582(c)(2) serves well the purposes of fitness and fairness: its sentence-modification provisions eliminate unwarranted disparities in federal sentencing, promote the government’s legitimate substantive penological interests, foster societal respect for the criminal justice system, and save long-term costs associated with excessive terms of incarceration.

The question of statutory interpretation presented in this case, i.e., what does the term “based on” mean, should be resolved in favor of clear congressional policy and purpose. Defendants who commit crimes of similar severity under similar conditions should receive similar sentences.  When it is functionally apparent that a particular amended guideline was applicable in a defendant’s case, it ought not matter whether that defendant’s plea agreement contained calculations applying the since-reduced guideline.  A contrary interpretation, one that unnecessarily narrows eligibility for relief under § 3582(c)(2), would turn congressional policy on its head, wrongly elevate finality interests over those Congress sought to champion, and lead to systemic injustice.  The Court should take this opportunity to embrace a broad interpretation of “based on” that comports with overriding congressional policy.  Accordingly, petitioner should be eligible for relief under § 3582(c)(2) because his sentence was “based on” a Guidelines range that has been subsequently lowered.

Some (of many) prior posts on sentencing finality:

January 30, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, January 29, 2018

Mapping out what Beckles left unresolved: Johnson's uncertain impact on the once-mandatory career-offender guideline

Leah Litman and Samantha Jaffe have this great new entry at the Take Care website under the heading "The Mandatory Guidelines Predicament."  It seeks to explain the still lingering issue of how the Supreme Court's 2015 Johnson vagueness ruling still impacts a certain subset of federal prisoners sentenced more than a decade earlier.  I recommend the piece in full, and here is a taste:

In Johnson v. United States, the Supreme Court held ACCA’s residual clause unconstitutionally void for vagueness.  ACCA imposes a 15-year minimum for defendants with three prior “violent felony” convictions.  ACCA’s residual clause defined “violent felony” as any felony that “involves conduct that presents a serious potential risk of physical injury to another.”  The next term, Welch v. United States announced that Johnson was a substantive rule that applied retroactively....

The Sentencing Guidelines contain a provision known as the career-offender guideline. The career-offender guideline helps calculate a defendant’s criminal history score, which, in combination with a defendant’s offense level, yields the defendant’s sentencing range. The career-offender guideline has a residual clause that is worded the same way as ACCA’s (unconstitutional) residual clause. In Beckles, the Court held that the career-offender guideline’s residual clause was not unconstitutionally vague because the advisory federal Sentencing Guidelines are not subject to vagueness challenges.

The Sentencing Guidelines, however, weren’t always advisory.... The pre-Booker Guidelines thus functioned a lot like statutes that impose mandatory sentences.  Nevertheless, there are still differences between the pre-Booker Guidelines and statutes.  Even when the Guidelines were mandatory, the Guidelines explicitly allowed courts to reduce a defendant’s recommended sentencing range if the court determined the defendant’s criminal history “substantially over-represent[ed] the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”  In other words, even under “mandatory” Guidelines, courts could depart from the sentencing range. In contrast, courts couldn’t depart from a mandatory minimum under ACCA.  The Guidelines also include seven factors that a sentencing court must consider, which builds in flexibility. These factors include the nature of the offense and history of the defendant, the types of sentences available, and how the sentence serves the values of deterrence, incapacitation, retribution, and rehabilitation. That said, in spite of those differences, the pre-Booker mandatory Guidelines functioned a lot like statutory minimums.

Despite the similarities between mandatory Guidelines and statutes fixing sentences, the courts of appeals have not been particularly receptive to challenges to the mandatory Guidelines....  Let’s imagine that the Supreme Court wants to say, at some point, that the mandatory Guidelines’ residual clause is unconstitutionally vague.  It’s not clear how many opportunities the Court will have to do so, assuming it’s even interested.  AEDPA sharply limits the Supreme Court’s ability to review court of appeals’ denials of authorization to file second or successive resentencing motions.  AEDPA does not permit petitioners to file petitions for certiorari from decisions denying authorization to file a second or successive authorization.  The only path to review in the Supreme Court are so-called “original writs,” which are rarely granted and, to date, have remained only a theoretical possibility for reviewing second or successive resentencing motions.

That’s a problem because it is likely that almost all cases involving the mandatory Guidelines will be second or successive resentencing motions.  The Guidelines have been advisory since the Supreme Court’s 2005 decision in Booker, so it’s not likely that many prisoners sentenced *before 2005* have yet to file a single section 2255 motion.

The petitioner in Raybon is one of the rare exceptions, although there is also another, similar case in the Fourth Circuit.  If the Court wants to do something about prisoners sentenced under the mandatory Guidelines, it may want to seriously consider granting certiorari in Raybon even though there’s a vehicle problem.... And acting sooner rather than later is important, given that the essence of these claims is that the prisoners are serving more time in prison than they should be.

January 29, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Monday, January 22, 2018

You be the federal judge: what sentence for Senator Rand Paul's attacker?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this local article, report, headlined "Rand Paul’s attacker should get 21 months in prison, prosecutors recommend," the case today is high-profile because of the victim (and some motive uncertainty). Here are the latest crime and punishment details:

Federal prosecutors will recommend a sentence of 21 months in prison for the neighbor charged with tackling and injuring U.S. Sen. Rand Paul, according to a court document. The document, posted Monday, also makes clear that the attack was not politically motivated.

Paul’s neighbor, Rene Boucher, told police he attacked Paul because he’d “had enough” after seeing the Republican senator stack more brush on a pile near Boucher’s yard, according to the plea agreement Boucher signed.

Boucher’s attorney, Matthew Baker of Bowling Green, has said he will argue that Boucher should not be put behind bars for the attack on Paul.

The plea deal also envisions that Boucher will make restitution to Paul, who was seriously injured.

Boucher, a 58-year-old retired anesthesiologist, and Paul have lived next to each other for years in an upscale subdivision in Bowling Green, but have reportedly had differences of opinion over property maintenance. Boucher is “very meticulous” about yard maintenance, while Paul “takes a different approach,” Baker told the Herald-Leader last week. “It just became … a point of frustration that boiled over,” Baker said....

Boucher’s plea agreement says Paul was mowing his yard — while wearing headphones for hearing protection — when Boucher saw Paul stacking more brush on an existing pile and lost his temper. Boucher “executed a running tackle” of Paul on Paul’s property, the plea agreement said.

Paul did not see Boucher coming until the last second and was “unable to brace for the impact,” the plea document said. Paul suffered several broken ribs and had to be treated for pneumonia which developed as a result of his injuries....

No date has been set for Boucher to formally plead guilty or be sentenced. The charge against him carries a top sentence of 10 years.

Long-time readers know that Senator Paul has long been an advocate for federal sentencing reforms especially for nonviolent drug offenders; in this case, Senator Paul the victim of a violent crime and perhaps the kind he thinks ought to carry some prison time.  Notably, in this 2013 op-ed, Senator Paul explained his opposition to mandatory minimum drug sentences due in part to the risk they create for federal offenders having "their lives ruined for a simple mistake or minor lapse of judgment."   Arguably Boucher's "running tackle" was just a minor lapse, albeit one that seemingly cause some significant harm to Senator Paul. 

Thanks the the federal Crime Victims' Rights Act, Senator Paul has a "right to be reasonably heard" at Boucher's sentencing and it will be interesting to see if Senator Paul exercises this right and whether he might be inclined to urge any particular sentence.  I surmise that the plea agreement filed today provides that federal prosecutors will seek a sentence of 21 months (likely pursuant to the aggravated assault guideline) while the defense will seek a sentence of probation.  It will be interesting to see what the probation office may end up recommending, and in the meantime I am eager to hear in the comments from various readers:

What sentence would you give to Rene Boucher for his assault on Senator Rand Paul?

January 22, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (16)

Friday, January 19, 2018

US Sentencing Commission releases new proposed guideline amendments to address synthetic drugs

As reported in this official press release, this morning "the United States Sentencing Commission approved publication of several proposed amendments to the federal sentencing guidelines, including proposals addressing the treatment of synthetic drugs under the guidelines." Here is more about today's USSC action and the broader on-going amendment cycle:

Today’s proposed amendments stem from a multiyear Commission study of some of the more prevalent and dangerous synthetic drugs in the federal system. The proposals adopt a class-based approach for synthetic cathinones and cannabinoids, two types of synthetic drugs studied by the Commission.  The proposal also defines the term “synthetic cannabinoid” and establishes a single marihuana equivalency for each class.

The Commission also proposed an increase to penalties for fentanyl offenses by setting the offense level for fentanyl equal to the higher offense level currently assigned to fentanyl analogues. The proposal provides more exact guideline definitions for the terms “fentanyl” and “fentanyl analogue”.  An enhancement for misrepresenting or marketing fentanyl or fentanyl analogues as another substance was also proposed.

Circuit Judge William H. Pryor, Jr., the acting chair of the Commission remarked, "A growing number of synthetic drugs are being developed and trafficked on the illicit drug market. It is important that the sentencing guidelines account for our most current understanding of the chemical structure, potency and effect, trafficking trends, and community impact of these drugs. These proposals aim to provide greater clarity, guidance, and efficiency in synthetic drug cases."

During the synthetic drugs study undertaken from August 2016 through December 2017, three fact-gathering public hearings were conducted on each drug type. The Commission received testimony from dozens of experts, including federal judges, scientists, law enforcement officers, and emergency medical personnel.... Several other technical or clarifying amendments were proposed today, including an amendment addressing two application issues relating to the immigration guidelines.

Today's proposals join other proposed amendments published in August 2017 that were held over from the previous amendment cycle. The Commission is expected to vote on the full slate of proposed amendments during the current amendment year ending May 1, 2018.

A public comment period on the newly proposed amendments will close on March 6, 2018, with a reply comment period closing March 28, 2018. To inform public comment, the Commission will soon release an online data briefing on synthetic drugs that highlights some of the findings from the Commission’s study. Two public hearings will also be scheduled in February and March.

The intricate details of these new proposed amendment are set forth in this reader-friendly USSC document, and the intricate details of the holdover proposed amendment are set forth in this reader-friendly USSC document. My own cursory understanding of all these proposals suggests to me that the holdover proposal addressing first offenders and alternatives to incarceration may be the only very consequential proposed amendment potentially in the works. But, of course, every possible guideline change can be very consequential to any defendant and any lawyers involved in any case implicating a perhaps-soon-to-be-amended-guideline.

January 19, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Wednesday, January 17, 2018

Lies, damn lies and fascinating statistics in the US Sentencing Commission FY 2017 sentencing data

I just noticed that the US Sentencing Commission last week released its latest standard quarterly data report, and this one is extra exciting because it contains preliminary data on all cases sentenced during fiscal year 2017.  Critically, FY17 runs October 1, 2016 through September 30, 2017, so a good chunk of the data reflect a period in which Attorney General Loretta Lynch was still in charge of the Justice Department.  Still, a majority of the data reflects sentencings after Attorney General Jeff Sessions took over, and the final third of FY 2017 had all sentencings taking place after AG Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.

I provide all this backstory largely as a prelude to highlighting how similar the USSC FY17 data look to FY16 data. I also thought it interesting to compare some of these data to FY13 and FY09, the last two Prez election year USSC data sets. (I am drawing all these data from Table 19, then Table 6 of these USSC data reports.)

USSC FY        Total Sentences (mean in month)     Drug Trafficking Sentences (mean in month)     Immigration Sentences (mean in month)

2009                81,347 (47 months)                                  23,931 (78 months)                                         25,924 (17 months)

2013                80,035 (45 months)                                  22,354 (72 months)                                         24,972 (16 months)

2016                67,740 (44 months)                                  19,231 (66 months)                                         20,052 (13 months)

2017                66,409 (45 months)                                  18,980 (70 months)                                         20,333 (12 months)

One can mine a lot more data from the FY 2017 report to tell a lot more stories about how, at least so far, formal and informal changes by AG Sessions have not yet made a dramatic impact on federal sentencing statistics.  Indeed, one might be heartened by the fact that fewer federal cases were sentenced in FY 2017 than in the last 15 years, and I think fewer federal drug trafficking sentences were imposed in FY17 than in nearly any other year in the past two decades (though the uptick in average sentence is interesting and may prompt a future post). 

Of course, these data may start looking very different in FY 2018 and beyond as new US Attorneys appointed by Prez Trump take over and their new cases make it all the way to sentencing. Still, I think it notable and interesting that the first run of federal sentencing data of the Trump Era shows a continued decline in overall sentences imposed and in drug trafficking sentences imposed.

January 17, 2018 in Criminal justice in the Trump Administration, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4)

Taking a critical look at recent report on "Federal Prosecution of Commercial Sexual Exploitation of Children Cases"

Guy Hamilton-Smith has this notable new piece at In Justice Today discussing a new Bureau of Justice Statistics report. The BJS report, available here, is titled "Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004-2013." Guy Hamilton-Smith's critical assessment, available here, is titled "New DOJ Report Demonstrates Stunning Disingenuity on Cases Involving Sexual Exploitation of Children." Here is how the commentary starts and additional excerpts with a sentencing bite:

A recent bombshell report from the Department of Justice claims that the number of people prosecuted in federal court for commercial sexual exploitation of children roughly doubled between 2004 and 2013.

The title of the report from the DOJ’s Bureau of Justice Statistics, Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004–2013, conjures the specter of children being forced into sexual slavery. The titling and framing of the report leaves a casual reader with the impression that more and more children are falling victim to commercial sex offenses  —  such as sex trafficking  —  and that DOJ has placed a high priority on prosecuting these offenses.

The actual data contained within the report itself, however, merits no such dramatic conclusion. The DOJ defines the phrase the “commercial sexual exploitation of children” (CSEC) as involving “crimes of a sexual nature committed against juvenile victims for financial or other economic reasons,” the obvious implication being that these “CSEC” defendants are directly involved in the trafficking of children for sexual purposes. However, according to the BJS’ own data, the vast majority of the defendants charged with CSEC offenses were accused, not of producing of child pornography or of child sex trafficking, but of consuming child pornography, including images of cartoon obscenity....

The growth in these types of child pornography prosecutions is not necessarily indicative of an increase in rates of offending.  Rather, it is more likely the result of law enforcement’s ability to secure confessions and convictions with relatively little effort. In the vast majority of these cases, investigators monitor peer-to-peer networks for hash values of images that are known to be child pornography, serve administrative subpoenas on service providers for records associated with those IP addresses, and knock on front doors with search warrants. Defenses are usually slim to none. Guilty pleas are exceedingly common: The BJS data reveals that 92.5% of defendants prosecuted in federal court for possession, receipt, or distribution of child pornography pled guilty.

Including such defendants under the banner of “CSEC” is sloppy at best and disingenuous at worst.  While the DOJ’s commitment to battling commercial sexual exploitation of children is admirable, their framing and presentation of the data as implication of an epidemic is at odds with the numbers themselves.

Underscoring the need for clarity and objectivity is the fact that defendants prosecuted for non-production child pornography offenses are amongst the most harshly punished defendants in all of the federal system. The report indicates that they are the least likely of all federal defendants to be given non-custodial sentences, even over and above violent and weapon offenses, and that "Prison sentences imposed on defendants convicted of CSEC offenses were among the longest in the federal justice system. The mean prison sentence imposed on convicted CSEC defendants increased by 99% from 2004 to 2013, from 70 to 139 months."

Sentences to the north of a decade are routine for CSEC defendants by virtue of the United States Sentencing Guidelines. These provide a recommended “range” in months of imprisonment based on both the severity of an offense and a person’s criminal history. Offenses, depending on specific characteristics of how they are committed, can receive enhancements that result in lengthier terms of imprisonment.

There are a number of significant sentencing enhancements for child pornography cases which are routinely applied. These may have held some rough logic in an era before Google, but they make little sense now. Use of a computer? Enhancement.  More than ten images?  Enhancement.  Distribution, even unintentional distribution, as discussed above?  Enhancement. More than 10 images (note that a video file, regardless of length, is counted as 75 images)? Enhancement.  Sentence enhancements are piled on such that, even for those individuals with no criminal record and no evidence they sexually assaulted a child, the recommended sentences can easily dwarf the statutory maximum sentences.

No other class of offense in the federal system (or, indeed, in many states) is characterized by such extreme sentences.  As courts have noted, there is virtually no empirical or reasoned bases for any of these enhancements beyond naked revulsion and desire for retribution. Some scholars have suggested that such severe punishments represent punishment by proxy. In other words, they are intended to obscure and compensate for the failure of law enforcement to investigate and prosecute actual cases of child sexual trafficking and commercial exploitation. In seeking to justify such draconian punishments even for “end users,” prosecutors and others (including courts) have advanced a market theory  —  that even possession of such images drives a market for child pornography.  The United States Sentencing Commission, in a 2012 report to Congress, noted that such arguments are without empirical support. Notably, similar arguments were made in support of harsh treatment of drug addicts in the 1970’s and 80’s as a way of winning the war on drugs.

Whatever the underlying rationale, the draconian nature of these sentences has attracted attention and push back in recent years, including from an extremely unlikely group: federal judges, some of whom are recognizing the inherent unfairness of enhancements for these types of offenses, and beginning to impose sentences far more lenient than those recommended by the guidelines.

Equating garden variety child pornography defendants with child sex traffickers is an abdication of reason and rationality. Unfortunately, the DOJ has not signaled any intention of reversing course.  Rather, if the trends in the report are any indication, it appears to be accelerating the use of what might justifiably be described as a prosecutorial machine that crushes defendants in child pornography possession cases, while failing to even charge far more culpable defendants.

January 17, 2018 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (5)