Wednesday, April 23, 2014

President Bartlet urges Congress to pass the Smarter Sentencing Act

I am pleased and intrigued to learn via this Mother Jones piece, headlined "Martin Sheen Reprises His 'West Wing' Role — for a Sentencing Reform PSA," that a high-profile celebrity is making the case for federal sentencing reform. Here are the details (along with links):

On Tuesday, Brave New Films released a new PSA calling on Congress to pass the Smarter Sentencing Act. The proposed sentencing-reform legislation aims to reduce prison populations and costs by creating less severe minimum terms for nonviolent drug offenders. (On Monday,Yahoo News reported that President Obama could grant clemency to "hundreds, perhaps thousands" of nonviolent drug offenders by the end of his second term.) The video was produced in partnership with the ACLU and Families Against Mandatory Minimums (FAMM), and stars actor Martin Sheen. It's titled "President Bartlet has a message for Congress," in reference to Sheen's role on Aaron Sorkin's political drama The West Wing.

"When BNF joined with FAMM and the ACLU to rally support for the Smart Sentencing Act, we couldn't think of a better spokesperson than Martin Sheen," Brave New Films president Robert Greenwald said. "When he portrayed President Bartlett on The West Wing, his character commuted the sentences of nonviolent drug offenders. In the real world, Martin Sheen has been an advocate for sentencing reform and alternatives to the harsh, long prison sentences we give to nonviolent drug offenders."

April 23, 2014 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, April 16, 2014

Critical reflections on the Cantu commutation ... aka why some federal prosecutors perhaps deserve to be demonized

220px-TrialKafkaThe more I reflect on the typo-correction sentence commutation of federal prisoner Cesar Huerta Cantu (basics here), and especially after re-reading this 2255 dismissal order that followed Cantu's own effort to have a court fix its own significant sentencing error, the more disgusted I feel about the modern federal sentencing system and especially about the U.S. Department of Justice and those federal prosecutors most responsible for Cesar Cantu's treatment by our Kafkaesque system.  In an effort to achieve some catharsis, let me try to briefly explain my feelings in three basic points:

1.  Cantu's original federal sentencing as guidelines numerology:  My disgust begins as I think about the basic reality that our federal sentencing system enables a small numerical typo — what should have been a 34 was a 36 in the presentence report guideline calculations — to result in 38-year-old defendant with no criminal history (who pleaded guilty and had considerable family support) to get sentenced to an extra 3.5 years in prison.  I continue to struggle to find much sense of justice or wisdom in a federal sentencing system in which quantitative numbers invented by a government agency, rather than qualitative factors and reasoned judgment, often still conclusively determine how many years or decades defendants are ordered to spend locked in a cage.

2.  Cantu's original federal sentencing as federal actors gone numb:  Arguably more depressing than a federal sentencing system in which numbers invented by a government agency determine how long a defendant gets locked up are sentencing actors whose concern for the human realities of incarceration have been numbed by all the numbers.  One would hope that, as part of a system in which years of human experience for federal defendants (and those who care about them) get determined by basic math, everyone involved would make extra sure the math is always done right.  But, numbed by so many humans being imprisoned for so many years based on so many numbers, the author of the PSR did not notice a typo that inflated Cantu's guideline-recommend prison sentence by many years, and neither did the defense attorney representing Cantu, and neither did the US Attorneys prosecuting Cantu, and neither did the federal judge sentencing Cantu.

3.  Cantu's dismissed 2255 motion as federal prosecutors possessed:  Bill Otis and others sometimes complain that I seem at times to suggest federal prosecutors are evil or satanic.  In fact, I have great respect for the hard work of federal prosecutors, and I am sure I would much rather have my daughters date 99% of federal prosecutors than 99% of federal defendants.  But I must wonder about what kind of evil or satanic forces may have possessed the federal prosecutors who responded to Cantu's pro se 2255 motion to correct his sentence with a motion to dismiss this matter as time-barred.  

Based on my reading of this 2255 dismissal order that followed Cantu's motion, federal prosecutors have never disputed that a  typo resulted in Cantu receiving a sentence 3.5 years longer than he should have, nor have they disputed that federal government officials are wholly responsible for this consequential error.  Still, the federal prosecutors who contributed to a mistake costing Cantu 3.5 years of his freedom responded to his 2255 motion by urging the sentencing judge also responsible for this mistake to refuse to correct Cantu's sentence because Cantu discovered their mistakes too late.  I am hard-pressed to come up with adjectives to describe this federal prosecutorial decision to seek dismissal of Cantu's 2255 motion other than inhumane.

I want to be able to imagine a positive motivation for why federal prosecutors sought a procedural dismissal of Cantu's motion to correct his indisputably erroneous sentence: perhaps, I was thinking, six years after prosecutors helped get an erroneously long sentence imposed on Cantu, these prosecutors came to believe Cantu was a criminal mastermind still involved in serious criminal wrongdoing from prison.  But, as this New York Times article reports, years after his initial erroneous sentencing, Cantu provided "law enforcement authorities with substantial assistance on an unrelated criminal matter" and "he has been a model prisoner, taking vocational and life skills courses and expressing remorse."  In addition, according to the Times reporting, Cantu is married and has 8-year old daughter.  Even if prosecutors were, for whatever reasons, disinclined to help Cantu get his erroneous sentence fixed after Cantu himself had helped the prosecutors, wouldn't they lose a little sleep over the notion that a typo could end up costing Cantu's wife the chance to have her husband's help to raise their daughter during her coming adolescence?

I am hoping Bill Otis or other current or former federal prosecutors will help me feel better about the work of our federal sentencing system and the Department of Justice in the wake of the Cantu commutation.  Especially because Prez Obama has been so stingy with his clemency power, I want this latest commutation to be a reason to celebrate rather than curse our justice system.  But unless and until someone can metamorphasize my understanding of the work of federal prosecutors in this case, I have a hard time not thinking that Josef K. and Cantu have far too much in common. 

April 16, 2014 in Clemency and Pardons, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (24) | TrackBack

Thursday, April 10, 2014

US Sentencing Commission to vote on reducing drug sentencing guidelines

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

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

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

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

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

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

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

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

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

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

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

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

Some recent related posts:

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

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

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

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

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

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

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

Wednesday, April 09, 2014

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

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

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

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

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

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

Friday, March 28, 2014

Federal judge robustly defends drug guidelines ... after robustly varying from them

Thanks to this post by Paul Cassell over at The Volokh Conspiracy, titled "Are the federal sentencing guidelines for drug dealing unduly harsh?", I have had a chance to see and read a remarkable 70+-page opinion by US District Judge James Browning in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read.  Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.  And the validity and role of various uses of judicial discretion after Booker also is front-and-center in this opinion.

I am going to make all my sentencing students read this opinion, and this openning to the opinion helps highlight why it covers so many important issues:

THIS MATTER comes before the Court on Defendant Kayla Marie Reyes’ Sentencing Memorandum and Motion for a Downward Variance, filed March 21, 2013 (Doc. 45)(“Sentencing Memorandum”).  The Court held a sentencing hearing on January 6, 2014. The primary issues are: (i) whether the Court will vary downward to a sentence of 15 months to reflect Defendant Kayla Marie Reyes’ comparatively minimal involvement in an overall drug conspiracy; (ii) whether the Court should vary from the advisory guideline range because of a substantive disagreement, under Kimbrough v. United States, 552 U.S. 85 (2007), with the United States Sentencing Commission’s Guideline ranges for drug trafficking violations, as did the Honorable John Gleeson, District Judge for the United States District Court for the Eastern District of New York, in United States v. Diaz, No. 11-CR-00821-2, 2013 WL 322243 (E.D.N.Y. Jan. 28, 2013); and (iii) whether the Court should consider the costs of incarceration and supervised release in sentencing.  

The Court will vary downward, but not as much as Reyes requests: it will vary to a sentence of 30 months, which the Court concludes best reflects the factors that Congress laid out in 18 U.S.C. § 3553(a).

The Court concludes that Judge Gleeson’s criticisms of the Commission’s Guideline ranges for drug trafficking lack a sound basis.  Accordingly, the Court will not adopt his substantive disagreement under Kimbrough v. United States with the Commission’s Guideline for drug trafficking offenses. The Court varies for reasons tied to the factors in § 3553(a) and to Reyes’ individual circumstances, and not because of a substantive disagreement with the Commission’s ranges for drug trafficking. Finally, the Court will not consider the costs of incarceration and supervised release in sentencing, because the factors in § 3553(a) do not clearly permit the Court to consider costs, and because those concerned about the fiscal implications of criminal justice policy should petition the other branches of government and should not ask the Court to consider such implications in sentencing an individual defendant. 

As this introduction hints, I could readily write a few dozen blog posts about this Reyes opinion (and might do a few more in the weeks ahead). But my most fundamental insight about the opinion appears in the title to this post: Judge Browning makes a very forceful argument in support of the federal drug sentencing guidelines, but he is doing so in a case in which he concludes that they should not be followed. If Judge Browning really thinks these guidelines are so sound, I do not quite understand why he feels it necessary (or even legally appropriate) to vary from them.

March 28, 2014 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, March 27, 2014

USSC Chair talks up "A Generational Shift for Drug Sentences"

I just noticed via the US Sentencing Commission's official website that Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, gave this lengthy speech at the Georgetown University Law Center titled “A Generational Shift For Drug Sentences.” The speech as reprinted runs eight-single-spaced pages, and here is one of many notable snippets:

So what have we learned then about drug sentencing policy in the generation since these federal sentences and guidelines were put into place?  At the state level, we have seen that many states have been able to reduce their prison populations and save money without seeing an increase in crime rates.  Michigan, New York, and Rhode Island all significantly decreased drug sentences, with Michigan and Rhode Island rolling back mandatory minimum penalties for drug offenses.  Each state saw reductions in prison population, accompanied by decreases in crime rates.  South Carolina eliminated mandatory minimum penalties for drug possession and some drug trafficking offenses and increased available alternatives to incarceration for drug offenses.  It too has seen reductions in its prison population and a drop in crime rates.  Other traditionally conservative states like Texas, Georgia, and South Dakota have shifted their emphasis from harsh punishment of drug offenses to a greater focus on alternative approaches, without seeing an increase in crime rates.  Respected organizations like the Vera Institute and the Pew Charitable Trust have studied these state reforms and found positive results.

This real-life experience in the states, together with new academic research, has begun to indicate that drug sentences may now be longer than needed to advance the purposes for which we have prison sentences, including public safety, justice, and deterrence.  Some prominent scholars have written that lengthy periods of incarceration are unlikely to have a deterrent effect and that even the incapacitation effect — keeping dangerous people off the streets — becomes less significant as prisoners get older.

March 27, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, March 26, 2014

Killer bride Jordan Graham moves to withdraw murder plea claiming feds breached deal in sentencing arguments ... UPDATE: motion denied!

I am intrigued and amazed to learn via this local article, headlined "Newlywed asks to withdraw guilty plea in husband's murder," that the Montana killer bride has now formally moved to withdraw her guilty plea based on the assertion that the federal prosecutors' sentencing arguments breached the (mid-trial) plea deal struck between defendant Jordan Graham and the feds.  Here are the details: 

The Kalispell newlywed accused of pushing her husband off a cliff last summer asked to withdraw her guilty plea late Tuesday, arguing the agreement she accepted was “illusory” and a “hollow formality.” Jordan Graham, 22, was to be sentenced in Missoula’s U.S. District Court Thursday for the July murder of 25-year-old Cody Johnson along a trail in Glacier National Park. It’s now unclear if the sentencing will proceed as scheduled.

First, U.S. District Judge Donald Molloy will have to rule on Graham’s motion to withdraw her guilty plea. If he accepts the motion, a new trial will be scheduled.  If he rejects her motion, the sentencing could continue as planned.

In Tuesday’s motion, federal public defender Michael Donahoe argued that prosecutors “breached the plea agreement” by suggesting in a sentencing memorandum filed last week that Graham murdered Johnson with both intent and premeditation. That memorandum, and its suggestion that Graham be sentenced to life in prison, rendered December’s plea agreement “nothing but an empty promise” — merely a means by which prosecutors avoided a possible manslaughter verdict, Donahoe said.

Graham accepted the plea agreement near the end of her trial, pleading guilty to second-degree murder.  In exchange, prosecutors agreed to drop a first-degree murder charge — and its contention that Johnson’s death was premeditated.

For a first-degree murder conviction, prosecutors needed to prove there was intent on Graham’s part; intent is not required for a second-degree murder conviction.  “By offering and agreeing to accept a plea agreement to second degree supported by an extreme recklessness plea colloquy, the government effectively removed the issue of defendant’s alleged premeditation as an issue in the case,” Donahoe wrote Tuesday.  “That was the entire purpose of the plea agreement,” he added.

Then came the sentencing memorandum, where prosecutors argued that Graham planned the murder of Johnson on the night of July 7 and should spend the rest of her life in prison  — or at least the next 50 years.

Graham has admitted pushing her husband of eight days off a cliff in Glacier Park during an argument. She was experiencing doubts about their marriage, she said, and shoved Johnson during a heated exchange.  Her intent was not to kill him, Graham said, but rather an instinctive response to Johnson grabbing her arm.

In his sentencing memorandum, assistant U.S. attorney Zeno B. Baucus honed in on evidence that Molloy expressly prohibited from December’s trial.  That evidence included a long, black cloth found in the vicinity of Johnson’s body, which prosecutors theorized Graham used to blindfold her husband before pushing him off a cliff along Glacier Park’s Loop trail. Graham also took away her husband’s car keys, prosecutors contended, and removed his wedding ring before the altercation....

On Tuesday, Donahoe said the prosecution’s return to premeditation theories rendered the plea agreement void — and asked the judge to allow Graham to withdraw her admission of guilt....  “By making what should have been its closing argument to the jury in its sentencing papers, the government has furnished a ‘fair and just reason’ to support defendant’s request to withdraw her plea,” Donahoe wrote. “The government’s plea agreement promise ... is an empty and hollow formality,” he said. “Therefore, the defendant argues that the government’s offer for a plea agreement was and is illusory and in bad faith.”

I expect the government will file a full-throated response to this motion sometime today. And I am sure the government will stress that, by taking a plea to the lesser-charge of second-degree murder, Garaham got an extraordinarily important sentencing benefit: the sentencing range for that charge is a range of 0 to life, whereas a first-degree murder conviction carried a mandatory LWOP sentence. I fully understand why Jordan Graham and her lawyer are troubled that the feds are making a forceful sentencing argument for an LWOP sentence, but I am not sure why its sentencing advocacy alone provide a basis for withdrawing a seemingly otherwise valid (and valuable) plea.

I have been obsessing about the upcoming sentencing in this case with my sentencing students because, as noted in this recent post, I think it provides a great and accessible tutorial on federal plea bargaining and sentencing realities. Little did I expect that this live tutorial would take on this interesting extra lesson.

Previous related posts (with lots of interesting prior comments):

UPDATE:  As this AP article reports, prosecutors do not agree that they breached any promises in this case:

Prosecutors responded Wednesday that they agreed to dismiss the first-degree murder charge but did not agree to ignore other evidence offered at trial in recommending a sentence of 50 years to life.

Assistant U.S. Attorney Kris McLean noted that Graham agreed to plead guilty on Dec. 12 without the benefit of a plea agreement. At that time, U.S. District Judge Donald Molloy reminded Graham that her plea meant she could face a life sentence in federal prison.

The federal government is not limited by the defendant’s description of events in recommending a prison term, McLean wrote in his response Wednesday. He argued the court can consider any information about the background, character and conduct of the defendant when determining a sentence.

The government’s sentencing memo recommends the court consider an upward variance to a sentence of life in prison, but no less than 50 years, in part because “the circumstances surrounding Cody’s death closely resemble conduct that is often associated with a first-degree murder conviction.”

Prosecutors said the fact that Graham was unhappy in her new marriage, that she somehow ended up with the only set of keys to the car Johnson drove into the park on July 7 and the fact that she texted a friend saying if the friend didn’t hear from her at all again that night, “something happened,” indicated Graham was “planning and considering murder.”

Graham is scheduled to be sentenced Thursday by Molloy in Missoula. It was not clear how Graham’s motion might affect the sentencing schedule.

ANOTHER UPDATE:  Unsurprisingly, as this local article reports, the "judge has denied a Kalispell newlywed's request to withdraw her guilty plea for the murder of her husband in Glacier National Park last summer." Here is more:

U.S. District Judge Don Molloy began Thursday's sentencing hearing by considering Jordan Linn Graham's motion to withdraw her guilty plea to second-degree murder....

Molloy ... ruled Thursday that Graham had knowingly and willingly pleaded guilty near the end of her trial last December - and said that plea will remain in place. He made the ruling after hearing brief arguments from both sides. He then proceeded to the sentencing. 

March 26, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (37) | TrackBack

Monday, March 24, 2014

Bridezilla murderer Jordan Graham's federal sentencing as amazing teaching opportunity

BRIDEZILLARegular readers (or anyone who watches morning television) likely remember the killer newlywed Jordan Graham.  As reported in prior posts here and here, Graham admitted to pushing her new husband from a cliff in Glacier National Park, but at first claimed that she did not mean to do it.  Then, after a federal jury trial was conducted,  but before a jury started deliberating about the charges, Graham entered a plea to second-degree murder in exchange for federal prosecutors agreeing to drop a first-degree murder charge and a count of making a false statement to authorities.

Now, as reported in this local article, headlined "Newlywed murder case unusual for federal court; sentencing Thur," it is now sentencing time. Unsurprisingly, federal prosecutors and Graham's defense team have much different views on what sentence she ought to receive for second-degree murder:

Does pushing your husband off a cliff to his death warrant serving life in prison?  Or 10 years? Or somewhere in between?  On Thursday, U.S. District Judge Donald Molloy must decide what punishment is fitting for Jordan Graham, who pushed her husband off a cliff in Glacier National Park last summer after only eight days of marriage.

After both sides had rested their case in a December trial, 22-year-old Graham pleaded guilty to second-degree murder in the death of 25-year-old Cody Johnson before the jury could enter into deliberations.

The case is relatively unusual for federal court, since accusations of murder are usually tried and sentenced in county courtrooms, but Graham pushed Johnson on federal land, said Jordan Gross, an associate professor of law at the University of Montana who teaches criminal law and criminal procedure. Federal sentencing guidelines are vague on what’s required for second-degree murder. Hence the 90-year difference in sentences the defense and prosecution are asking Molloy to hand down, Gross said.

Graham was charged with first-degree murder, a lesser included charge of second-degree murder and making false statements to law enforcement. For first-degree murder, prosecutors must prove there was intent on the defendant’s part, where intent is not required for a second-degree murder conviction.

Although Graham pleaded guilty, prosecutors rehashed in their sentencing memorandum that Johnson was found without his wedding ring or car keys and hinted at the possibility that Graham had indeed intended to kill her new husband. Graham’s defense team contends that the circumstances of the evening were a recipe for disaster and that the incident was more akin to an accident. “She pleaded guilty, but that doesn’t mean that the prosecution can’t come in and argue her sentence up to life because that’s what the statute says,” Gross said. Federal statutes also don’t stipulate a required minimum sentence.

The benefit of pleading guilty before the jury could return a verdict is that it shows Graham accepts responsibility for her actions, Gross said. “There are shades of acceptance of responsibility,” though, Gross said, adding that in Graham’s case, she didn’t spare Johnson’s family the anguish of taking the stand and reliving their pain during a trial.

Letters from family and friends in support of Graham and letters filed on behalf of the prosecution, also will play a role in Molloy’s determination — and give insight from those who know Graham and Johnson best.

Brad Blasdel, who knew Graham for several years through her family, wrote that she was quiet and shy on the surface but cold and calculating underneath and showed no emotion about Johnson’s death. “Not once did I see any sign of remorse in Jordan for killing Cody,” he wrote, asking Molloy to consider the woman’s callousness during sentencing. “She took Cody’s life with premeditation and malice; now she must give hers,” he continued.

Cyndi Blasdel called Graham a “quiet instigator” who frequently encouraged bad behavior in others from the time she was a child. After Graham and Johnson’s engagement, Graham’s behavior became increasingly erratic, to the point of murder, Blasdel said. “Jordan Graham knew what she did was wrong and knew the consequences. She needs to be held accountable. She is not a nonviolent offender. Those of us who know her are afraid and some of us still sleep with the lights on,” she wrote.

People who wrote letters on Graham’s behalf, though, urged Molloy to be lenient to the quiet, hardworking woman who they say diligently attended church and served as a mentor to other young women.

Graham’s stepfather, Steven Rutledge, wrote he feels Johnson’s death was a terrible accident. “Why she decided to tell stories about the true events are unknown and unfortunate, but not a reason for a long prison term,” he wrote. Graham is a quiet churchgoer who cares deeply about others, he wrote. “I ask you to grant Jordan some leniency, and a chance at living her life as a young Christian woman.”

If Molloy is lenient, Graham has the potential to become a contributing member of society, her mother, Lindele Rutledge, wrote. Her daughter has shown remorse repeatedly in letters, through phone conversations and during visitation times, Rutledge wrote. “She has never been in trouble with the law. Her only record is a couple of speeding tickets. By showing her leniency she could get a college education and become a better and useful member of society.”...

Graham also likely will address Molloy during Thursday’s hearing in U.S. District Court in Missoula. It will be her opportunity to interact with Molloy outside of the case facts, said Paul Ryan, who has practiced law in Missoula for 20 years. Her comments to the judge will allow her to personally explain why she pushed Johnson and convey if she truly accepts responsibility for her actions, Ryan said.

Johnson’s mother, Sherry Johnson, as well as several other family members, will make comments during the sentencing hearing too. “They’re usually the most emotional and they can certainly carry a lot of weight with the judge,” Ryan said. What Johnson’s family feels is appropriate punishment also will factor into the decision, as will the impact to the victim, he said. “In this case, it was fatal. There can’t be a greater impact on a person than that,” he added.

As the title of this post highlights, I think this upcoming sentencing provides an extraordinary opportunity for me to explore with students critical sentencing issues ranging from views on how offense facts beyond the offense of conviction ought to impact sentencing and whether post-offense behavior by the defendant ought to play a large role at sentencing.  

In this prior post, I noted some of the federal sentencing guideline issues that this case necessarily raises.  Specifically, the guideline for second degree murder, 2A1.2, provides a base offense level of 38 and recommends an upward departure if "the defendant's conduct was exceptionally heinous, cruel, brutal, or degrading to the victim."   Should that apply here?  Also, I believe federal prosecutors have calculated the guidelines to include enhancements for obstruction of justice and without any reduction for acceptance of responsibility based on the lateness of the plea.  Are those fair and proper as sentencing consideration?

I could go on and on, but I want to save some of the fun for my students in class this week.  In the meantime, though, I would love to hear from readers (especially those who are regular sentencing practitioners) about what elements of this high-profile case provide especially good teaching ideas.

Previous related posts (with lots of interesting prior comments):

March 24, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

Friday, March 21, 2014

"Legitimacy and Federal Criminal Enforcement Power"

The title of this post is the title of thiis new paper by Lauren Ouziel now available via SSRN. Here is the abstract:

A defining feature of criminal federalism is extreme disparities in case outcomes across state and federal forums.  All else being equal, prosecution in the federal forum entails a significantly higher likelihood of conviction, and a higher penalty.  But why do such disparities exist?  Conventional explanations point to differences among sovereigns’ legal rules, resources and dockets.  These understandings, while valid, neglect to account for a less-tangible source of federal criminal power: legitimacy.

“Legitimacy” refers to the concept, refined through decades of empirical research, that citizens comply with the law, and defer to and cooperate with legal authority, when they perceive both the laws and the authorities to be fair.  A legitimacy-based exploration of the federal criminal justice system significantly enriches our understanding of the sources of federal criminal power.  Distilling those sources, moreover, reveals surprising and counterintuitive implications: to emulate the sources of federal legitimacy in local systems, we need more localized criminal justice.

March 21, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, March 20, 2014

"Sentencing in Tax Cases after Booker: Striking the Right Balance between Uniformity and Discretion"

The title of this post is the title of this new paper by Scott Schumacher now available via SSRN. Here is the abstract:

It has been nearly ten years since the Supreme Court’s seminal decision in United States v. Booker, in which the Court invalidated the mandatory application of the United States Sentencing Guidelines.  In the cases that followed, the Court addressed subsidiary issues regarding the application of the Guidelines and the scope of appellate review.  However, despite — or perhaps because of — these opinions, there is little consensus regarding the status and extent of appellate review, as well as the discretion afforded sentencing courts. More troubling, what consensus there is seems to permit judges to impose any sentence they wish, as long as the appropriate sentencing procedures are followed.  As a result, we are in danger of returning to “the shameful lack of parity, which the Guidelines sought to remedy.”

The Sentencing Reform Act and the Sentencing Guidelines were designed to reduce disparity in sentencing and to reign in what one commentator described as a “lawless system.” However, the Guidelines as ultimately conceived drastically limited the sentencing judge’s ability to impose a sentence that was appropriate for the conduct and culpability of the defendant, creating a different kind of sentencing disparity. The current, post-Booker system provides more guidance than the pre-Guidelines system, but permits sentencing judges to disregard the Guidelines and develop their own sentencing policy.  As a result, rather than having a system that allows for sentences to be tailored to individual defendants, the current system allows sentences to be imposed based on the penal philosophy of individual judges. This will inevitably lead to unwarranted sentencing disparity.

This article traces the recent history of criminal sentencing and, relying on the influential works of John Rawls and H.L.A. Hart on theories of punishment, argues for a better system that allows for both guidance to sentencing judges and appropriately individualized sentencing.  My recommendation, although equally applicable to any federal sentence, will be examined through the lens of tax sentencing.

March 20, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, March 17, 2014

DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims

Very long time readers with very good memories may recall the array of notable post-Booker issues that surround the sentencing of Antwuan Ball following his conviction for crack distribution in Washington DC. As first noted in this prior post (from June 2008!), Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

Fast forward to 2011 and, as reported here, the feds are urging the district judge to rely heavily on all sorts of alleged/claimed wrongdoing by Ball to impose a max statutory sentence of 40 years on the crack charge. (Significant side note: in light of the passage of the FSA and Supreme Court's subsequent Dorsey ruling, I am not sure 40 years was in fact the proper stat-max for Ball, but more on that point later.)

Relying on the prosecution's allegations that Ball was the leader of a huge crack consipracy (claims which the jury rejected), the district judge apparently calculated Ball's guideline sentence range to be 292 to 365 months (though again, due to the FSA, I am not sure that was the right guideline range circa March 2011).   This NACDL amicus brief filed in January 2013 indicates that Ball's guideline range would have been only 51 to 71 months absent consideration of acquitted conduct.

As reported here, District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy [and imposed on Ball a 225-month prison sentence] for his conviction of the 2001 hand-to-hand drug transaction."  At the time of Ball's 2011 sentencing, I noted here that I was quite pleased the acquitted conduct issues preserved in this notable case, and I suggested "some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct."  

Now fast forward exactly three more years, and I find myself quite disturbed and troubled by how the acquitted conduct issues (and other issues) were given seemingly quite short shrift by a panel of the DC Circuit in its ruling late last week in US v. Jones, No. 08-3033 (DC Cir. Mar. 14, 2014) (available here).  

For starters, as I read the panel opinion in Jones, I find myself persistently wondering whether and how the district court at Ball's 2011 sentencing may have been influenced by the pre-FSA crack statutes and guidelines before the Supreme Court in Dorsey subsequently made clear that post-FSA rules should apply to all post-FSA sentencings.  This issue is not discussed in the Jones opinion (and perhaps it was not raised/preserved), but uncertainty about the application of the FSA at the time of sentencing might arguably alone be reason enough to require resentencing for Ball.

More fundamentally, to reject Ball's acquitted conduct claims, the DC Circuit opinion in Jones only cites to (now dated) post-Booker precedents from all the circuits via this discussion (my emphasis added):

Although we understand why appellants find sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime.  See United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008) (citing United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam)); Dorcely, 454 F.3d at 371 [D.C. Cir. 2006] (“[A] sentencing court may base a sentence on acquitted conduct without offending the defendant’s Sixth Amendment right to trial by jury.”).  This is true even when consideration of the acquitted conduct multiplies a defendant’s sentence severalfold.  See Dorcely, 454 F.3d at 370-71.  Appellants, in effect, ask us to reconsider Settles and Dorcely. But not only do those decisions bind us, no subsequent decision by the Supreme Court or another circuit calls their validity into question. Cf. FED. R. APP. P. 35(b)(1) (suggesting contrary decisions by the Supreme Court or by another court of appeals as grounds for en banc review).  Indeed, since the Supreme Court struck down the mandatory federal sentencing guidelines and freed judges “to exercise broad discretion in imposing a sentence within a statutory range,” United States v. Booker, 543 U.S. 220, 233, 243-44 (2005), every numbered circuit has addressed the constitutionality of sentencing based on acquitted conduct, and each one has reached the same conclusion reached by this court. See United States v. White, 551 F.3d 381, 384-86 (6th Cir. 2008) (en banc); United States v. Mercado, 474 F.3d 654, 656-58 (9th Cir. 2007) (collecting cases from every numbered circuit but the Sixth).  

I have emphasized a phrase from the middle of this paragraph because I actually believe there are at least two SCOTUS rulings since the DC Circuit addressed this issue in Settles and Dorcely that arguably "calls their validity into question."  Specifically, just from 2013, the Supreme Court's Peugh decision (basics here) and especially its Alleyne decision (basics here and here) provide a reasonable basis to question the continued validity of severe acquitted conduct guideline enhancements.  A fair reading of Alleyne suggests that judicial fact-finding as to facts which "alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment" can be constitutional problematic even if these facts do not raise the applicable statutory maximum sentence.

Critically, I am not asserting that the 2013 SCOTUS rulings Peugh and/or Alleyne now require reversal of old circuit precedents upholding major acquitted conduct enhancements.  But I do strongly believe that 2013 SCOTUS rulings Peugh and/or Alleyne raise significant new questions about old circuit precedents upholding major acquitted conduct enhancements.  Consequently, I find this cursory treatment of what strikes me as a significant sentencing issue in a significant case to be disconcerting.

That all said, perhaps the "optimistic" way to read this opinion is as an invitation to Ball and others to see en banc review of old circuit precedent upholding major acquitted conduct enhancements.  At the very least, given that Ball still likely has a decade in federal prison left for his $600, half-ounce, hand-to-hand crack-cocaine deal in 2001, I hope he seriously considers pursuing further appeals of his sentence.

Some old posts on the Ball case and acquitted conduct sentencing enhancements:

March 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

Thursday, March 13, 2014

"Attorney General Holder Urges Changes in Federal Sentencing Guidelines to Reserve Harshest Penalties for Most Serious Drug Traffickers"

The title of this post is the title given by the Justice Department to this press release with AG Holder's statements to the US Sentencing Commission concerning drug guideline reform.  Here are just a few highlights:

The Justice Department strongly supports the Commission’s proposed change to the Drug Quantity Table. If adopted, this amendment would lower by two levels the base offense levels associated with various drug quantities involved in drug trafficking crimes. This would have the effect of modestly reducing guideline penalties for drug trafficking offenses while keeping the guidelines consistent with current statutory minimums – and continuing to ensure tough penalties for violent criminals, career criminals, or those who used weapons when committing drug crimes.

This straightforward adjustment to sentencing ranges – while measured in scope – would nonetheless send a strong message about the fairness of our criminal justice system. And it would help to rein in federal prison spending while focusing limited resources on the most serious threats to public safety. Let me be clear, my primary obligation as Attorney General is to ensure the safety of the American people. The changes that I have implemented over the past year are designed to do exactly that – while making our system more fair and more efficient.

This proposed amendment is consistent with the “Smart on Crime” initiative I announced last August. Its implementation would further our ongoing effort to advance commonsense criminal justice reforms. And it would deepen the Department’s work to make the federal criminal justice system both more effective and more efficient when battling crime and the conditions and behaviors that breed it.

March 13, 2014 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Previewing what AG Holder will say about drug sentencing to US Sentencing Commission

As noted in this prior post, Attorney General Eric Holder is, according to this official agenda, the first scheduled witness at the US Sentencing Commission's important public hearing today on proposed amendments to reduce drug sentencing terms in the federal sentencing guidelines. The full text of what AG Holder says will likely be available on line later today, but this new Washington Post article, headlined "Holder will call for reduced sentences for low-level drug offenders," provides a preview of what he plans to say (which my emphasis below on an especially notable development) and some context for his latest sentencing reform advocacy:

Attorney General Eric H. Holder Jr. on Thursday will urge reduced sentences for defendants in most of the nation’s drug cases, part of his effort to cut the burgeoning U.S. prison population and reserve stiff penalties for the most violent traffickers.

Holder’s proposal, which is expected to be approved by the independent agency that sets sentencing policies for federal judges, would affect 70 percent of drug offenders in the criminal justice system, according to figures provided by Justice Department officials. It would reduce sentences by an average of nearly a year.

“Certain types of cases result in too many Americans going to prison for far too long, and at times for no truly good public safety reason,” Holder plans to tell the U.S. Sentencing Commission, according to excerpts of his testimony provided to The Washington Post. “Although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.”

Like Holder’s previous criminal justice reforms, the move is likely to be hailed by civil liberties groups and assailed by some lawmakers who think the administration is chipping away at federal policies designed to deter criminals and improve public safety.

The seven-member sentencing panel has proposed an amendment to federal sentencing guidelines and will vote on it as soon as April. Until then, federal judges must refer to current sentencing guidelines. Holder, however, will instruct his prosecutors in a memo Thursday not to press judges to impose the longer sentences in the current guidelines if attorneys for drug offenders seek shorter sentences for their clients that would be permissible under the new policy.

Under current mandatory minimum guidelines, a drug offender convicted of possessing 500 grams of cocaine or 28 grams of crack would face a term of 63 to 78 months. Holder is proposing that the time in such a case be reduced to 51 to 63 months. “By reserving the most severe penalties for dangerous and violent drug traffickers, we can better protect public safety, deterrence and rehabilitation while saving billions of dollars and strengthening communities,” Holder plans to say. The lower sentencing ranges would result in a 17 percent decrease in the average length of time imposed on a drug offender, Justice Department officials said.

Holder’s new sentencing proposal is the latest step in his agenda to revise the criminal justice system. In August, he announced that low-level nonviolent drug offenders with no connection to gangs or large-scale drug organizations would not automatically be charged with offenses that call for severe mandatory sentences. That measure, however, didn’t address the sentencing ranges defendants could face under federal guidelines.

Holder’s latest policy change would reduce the Bureau of Prison population by 6,550 people within five years, according to the Justice Department. Of the more than 216,000 federal inmates, nearly half are serving time for drug-related crimes. At the same time it is seeking to reduce sentences for nonviolent offenders, the Justice Department is putting greater focus on violent traffickers who bring heroin and other drugs into the United States....

Holder’s efforts to reduce the prison population have drawn criticism from Sen. Charles E. Grassley (Iowa), the ranking Republican on the Senate Judiciary Committee, and other lawmakers who say the administration is undermining policies that were set up to deter would-be criminals.

But many of Holder’s criminal justice policies have been praised by civil liberties groups and have bipartisan support in Congress. A bill that Holder and the Obama administration support to reform prison sentences includes both Republican and Democratic sponsors, including Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Mike Lee (R-Utah).

Last week, at the Conservative Political Action Conference at National Harbor, Md., Republican Texas Gov. Rick Perry said that prison reform is one issue on which he agrees with Holder. “There aren’t many things that the president and the attorney general and I agree about. Know what I mean?” said Perry, who ran for president in 2012.

As noted in this post, I will be off-line most of today in order to travel to and participate in a Sixth Circuit oral argument. But I should be able to provide additional coverage and review of all the sentencing reform action taking place today at the USSC's public hearing before the end of the day.

Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:

March 13, 2014 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, March 12, 2014

Attorney General to testify about drug guideline reform before US Sentencing Commission

I am pleased and very intrigued to now see from this agenda that the first scheduled witness at the US Sentencing Commission's public hearing scheduled to be held tomorrow morning to receive testimony on proposed amendments to the federal sentencing guidelines is none other than the Honorable Eric H. Holder, Jr., Attorney General of the United States. I was already excited about what would develop as the USSC heard from folks about its proposal to cut the drug sentencing guidelines across the board (discussed here), but I now think this hearing could end up being historic as well as interesting. 

I cannot recall the US Attorney General ever testifying directly before the US Sentencing Commission, even in the wake of Blakely and Booker and all the uncertainty and reform that was being robustly discussed by all the branches during the transformation of the federal sentencing system and the guidelines as a result of major SCOTUS ruling. And though I am not an expert on USSC history, I think this may be the first time that a sitting Attorney General has testified directly at a USSC hearing.

This development confirms my view that AG Holder wants federal drug war reform to be a big part of his legacy, and I think any and everyone interested in the federal sentencing system and the broader national war on drugs ought to pay very close attention to what takes place tomorrow morning in the Mecham Conference Center in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., Washington, DC.

March 12, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (14) | TrackBack

Sunday, February 23, 2014

"Shadow Sentencing: The Imposition of Supervised Release"

The title of this post is the headline of this notable new paper by Christine S. Scott-Hayward concerning a too-rarely examined component of the federal criminal justice system. Now available via SSRN, here is the abstract:

More than 95 percent of people sentenced to a term of imprisonment in the federal system are also sentenced to a term of supervised release.  Since it was first established in the late 1980s, nearly one million people have been sentenced to federal supervised release. The human and fiscal costs of this widespread imposition are significant.  Supervised release substantially restricts an individual’s liberty and people on supervised release receive diminished legal and constitutional protections.  The fiscal costs of supervised release are also high, particularly when almost one third of people on supervised release will have their supervision revoked and will return to prison.

Despite the importance of supervised release, little is known about how and why sentencing judges impose supervised release and what purpose it is supposed to serve in the federal criminal justice system.  In most cases, supervised release is not mandatory and yet judges consistently fail to exercise their discretion in this area and impose supervised release in virtually all cases.

Based on an empirical study of sentencing decisions in the Eastern District of New York, this article uncovers previously unidentified features of supervised release.  It finds that judges widely impose supervised release without any apparent consideration of the purpose served by the sentence.  This article argues that supervised release is over-used and proposes a new framework for its imposition to ensure that courts only impose supervised release on people who need it.

February 23, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, February 19, 2014

After she asked for life sentence, Sister Megan Rice gets 35 months' imprisonment and her co-defendants get 62 for sabotage

As reported in this local piece, an "84-year-old Catholic nun will spend nearly three years in federal prison for breaking into one of the U.S. government's most secure facilities and helping deface a uranium-processing building with human blood, a federal judge ruled Tuesday."  Here is more about the fascinating sentencing conclusion to a high-profile case of law-breaking civil disobedience:

Megan Rice, who turned 84 on Jan. 31, and fellow anti-nuclear activists Michael Walli, 64, and Greg Boertje-Obed, 58, were convicted in May of sabotaging the plant in Oak Ridge, Tenn.  All three are members of the Plowshares movement of Christian pacifists.

U.S. District Judge Amul Thapar in Knoxville, Tenn., sentenced Rice to 35 months in prison for her role in the July 28, 2012, break-in and protest.  The judge sentenced Walli and Boertje-Obed both to five years and two months in prison.  Previously, Thapar had ordered the trio to pay nearly $53,000 in restitution for damaging U.S. government property.  In addition, Walli and Boertje-Obed will have three years of supervised release after their prison terms. The two men received longer sentences based on their past criminal history.

During a four-hour hearing Tuesday, Rice pleaded with the judge not to grant her leniency. "Please have no leniency on me," she said. "To remain in prison for the rest of my life would be the greatest honor you could give me."

Thapar didn't oblige but did say that breaking the law isn't the right way to pursue political goals.  He said he hoped that a significant prison sentence would deter others from following the same path and bring them "back to the political system I fear that they have given up on."

The protesters picked late July 2012 to break in to the Y-12 National Security Complex because it was close to the dates when the United States dropped atomic bombs on Hiroshima and Nagasaki, Japan, during World War II.  The three cut through fences and made it through multiple layers of security.  They spent more than two hours in a restricted area and had time to splash blood on the outside of the building where the government processes weapons-grade uranium before security personnel apprehended them....

The three have garnered worldwide attention.  Thousands of letters of support have poured into the court from around the world.  Those include letters from groups such as the Union for Concerned Scientists. While acknowledging the three were convicted of a federal crime, they exposed serious security weaknesses at Y-12, the group said.

Edwin Lyman, a nuclear security expert at the Union of Concerned Scientists, said in January that the protesters did the nation a public service. "We think, even though they were convicted of a federal crime, there are mitigating circumstances and they made the country safer," Lyman said.

The government has taken the case seriously.  The three have been in custody since their conviction, and prosecutors recommended sentences of six to nine years.  

A key issue Tuesday was how the judge should follow federal sentencing guidelines. Lawyers for the activists that argued the time they already have served is sufficient punishment....  During the hearing, the judge struggled with how to handle the guidelines. "At some point, the law has to command respect, and there is a lawful way to change it," Thapar said.  But he also suggested that Rice's past good works should play a role and wasn't sure how to fit those into the guidelines.  He called a recommended sentence of 6½ years for Rice "overkill."

Assistant U.S. Attorney Jeffrey Theodore ... contended the trio's actions were "serious offenses that have caused real harm to the Y-12 National Security Complex."  [And] "they have shown no remorse for their criminal conduct," he said.

Recent related posts:

February 19, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, February 17, 2014

Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility

Sister Megan RiceThis new report from The Guardian, headlined "84-year-old nun who broke into Tennessee weapons plant awaits fate," spotlights a high-profile federal sentencing case (previously discussed in this post) that is scheduled for final sentencing tomorrow morning.  Here are excerpts:

An 84-year-old nun who broke into a Tennessee weapons plant and daubed it with biblical references, will learn on Tuesday whether she will spend what could be the rest of her life in prison.

Two weeks ago, at a sentencing hearing, a judge ordered Sister Megan Rice and her co-defendants, two other Catholic anti-nuclear activists, Greg Boertje-Obed, 58, and Michael Walli, 64, to pay $53,000 for what the government estimated was damage done to the plant by their actions.

All three defendants were convicted of sabotage after the break-in at the Y-12 nuclear weapons plant at Oak Ridge, Tennessee, on 28 July 2012. The charge, under a statute of the US criminal code used against international and domestic terrorism, carries a maximum sentence of up to 30 years. The government have asked for the trio to be given prison sentences of between five and nine years. They would have learned their fate in the January hearing, but it was cut short due to bad weather and rescheduled for Tuesday.

In an interview with the Guardian from Knox county jail as she awaited her fate, Rice said she hoped US district judge Amul Thapar would seize the opportunity to “take his place in history” and sentence them in a way that would reflect their symbolic, non-violent actions – actions she said that were intended to highlight the US stockpile of nuclear weapons they believe is immoral and illegal.

“I hope he will answer his conscience,” said Rice, in an interview 24 hours before the last sentencing hearing. “He knows what to do.” She and her co-defendants have been in prison, mostly in Ocilla, Georgia, for eight months, a period of time her lawyers say is sufficient punishment for the break-in.

Thapar has received hundreds of letters and a 14,000 signature petition pleading for leniency in this case, including from Rice’s religious order, the Society for the Holy Jesus, which asked for a reduced or suspended sentence given “her age, her health and her ministry”. Lawyers for Rice, Boertje-Obed, a Vietnam veteran from Washington DC and Walli, a painter from Duluth, Minnesota, have asked for leniency and say the trio admitted have what they did.

The US government contends that none of the defendants arguments merit leniency. At the hearing on 28 January, it said they did not accept they had committed crimes, took no responsibility for them, showed no contrition and, then, during the trial, proceeded to argue against the laws they had broken. It has described the three, who have previous convictions related to their protest activities, as “recidivists and habitual offenders”.

Jeffery Theodore, assistant US attorney general for the eastern district of Tennessee, told the court that the three “pretty much celebrated their acts”.  At the January hearing, he described their argument that they were trying to uphold international law as “specious and disingenuous” and said there had been no single case where international law has been seen as justification for breaking US laws.  The judge agreed with Theodore that the defendants were not remorseful and that they didn’t accept any responsibilities for their crimes, and said they would not be given downward departures for admitting responsibility.

At the January hearing, four character witnesses for the defendants gave powerful testimony about their strong Christian and pacifist principles, their commitment to helping others and their dedication to their cause. They, and the scores of supporters crowded into the courtroom, also provided an insight into the close-knit nature of the anti-nuclear faith community.

Regular readers are surely not surprised to hear that I find this federal sentencing case very interesting for a number of reasons.  But they may be surprised to learn that US District Judge Amul Thapar used the sentencing break/delay as an opportunity to request that I submit a "friend-of-the-court brief" to assist the Court as it tackled some challenging issues concerning the departure requests made by one of the defendants. I was honored and grateful to be able to provide such assistance directly to the court, and below I have uploaded Judge Thapar's order (which requests my submission at the end) and my submission in response:

Recent related post:

February 17, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Federal judge urges passage of the Smarter Sentencing Act because of "Prisoners I Lose Sleep Over"

The title of this post is drawn from the headline given to this recent commentary piece in the Wall Street Journal authored by senior US District Judge Michael Ponsor. Here are excerpts:

The Senate Judiciary Committee approved the "Smarter Sentencing Act" by a bipartisan vote of 13-5 on Jan. 30, sending it to the Senate floor.  The legislation is excellent and its passage would mean a long overdue correction of a misguided sentencing regime that Americans — including federal judges like me — have struggled with for more than two decades.

I've been on the federal bench for 30 years, having served 10 years as a magistrate judge and 20 as a U.S. district judge.  My pride in our constitutional system runs bone deep: No system of law has ever existed that tries so hard to be truly fair.  I can take scant pride, however, in the dark epoch our criminal sentencing laws have passed through during my decades handling felony cases....

For years, I could recite the mandatory terms for crack in my sleep: five years for five grams, 10 years for 50 grams, 20 years for 50 grams with one prior conviction, life without parole for 50 grams with two priors — no discretion, no consideration of specific circumstances.  These mandatory terms (unless the defendant cooperated by implicating others) were the same for low-level couriers, called mules, as for high-echelon drug lords.

By passing the Fair Sentencing Act, Congress recognized that this system of mandatory sentences, in addition to being unjust, was to some extent racially skewed since black drug users tend to favor crack, while whites prefer much less harshly penalized powder cocaine. Yet defendants sentenced before the act was passed still languish today, serving out sentences that virtually all members of Congress now recognize as excessive.  And there is not a darn thing anyone can do about it. If you're the one doing the sentencing, this reality will keep you awake at night, believe me.

The Smarter Sentencing Act would reduce 20-year mandatory sentences to 10, 10-year sentences to five, and five-year sentences to two years.  Increased numbers of offenders with very modest criminal records would not face mandatory sentences at all.  If adopted, the law would also permit thousands of prisoners to seek reduction of their prison terms to bring them in line with the Fair Sentencing Act.  None of these changes would reduce the power of judges to slam the really bad actors. But they would permit judges to do what they are paid to do: use their judgment.

Our vast prison apparatus is too costly, but more important, it is unworthy of us as a free people.  This new statute is well named — now is the time for smarter sentencing.

Some recent related posts concerning Smarter Sentencing Act:

February 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, February 13, 2014

"Is possession of child pornography a crime worthy of years in prison?"

The question in the title of this post is the sub-headline of this new Jacob Sullum piece at Reason.com. The piece starts by talking through the recent Paroline argument concerning restitution punishments for child porn downloaders and then moves to these comments:

As a result of congressional edicts, the average sentence in federal child porn cases that do not involve production rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission.

Under federal law, receiving child pornography, which could mean viewing or downloading a single image, triggers a mandatory minimum sentence of five years.  Federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common, such as using a computer, swapping photos, or possessing more than 600 images (with each video counted as 75 images).  The maximum penalty is 20 years....

When the Supreme Court upheld bans on possession of child pornography in 1989, its main rationale was that demand for this material encourages its production, which necessarily involves the abuse of children.  But this argument has little relevance now that people who look at child pornography typically get it online for free.  Furthermore, people who possess "sexually obscene images of children" — production of which need not entail abuse of any actual children — face the same heavy penalties.

Another rationale for criminalizing possession of child pornography, mentioned by the sentencing commission in its report, is that these images "validate and normalize the sexual exploitation of children."  Yet the same could be said of explicit arguments in favor of sex with minors, which nevertheless enjoy First Amendment protection.

Even if you agree that possessing child pornography should be a crime, the current penalty structure is clearly out of whack.  Something is seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children.

February 13, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (22) | TrackBack

Wednesday, February 12, 2014

Will (and should) former mayor Ray Nagin get a sentence making it likely he dies in federal prison after his corruption convictions?

The question in the title of this post is the first sentencing question that came to mind upon hearing this criminal justice news from a Louisiana federal court this afternoon:

Ray Nagin, the former two-term mayor of New Orleans indicted after he left office, was convicted Wednesday of 20 federal corruption charges for illegal dealings with city vendors, dating back to 2004.  A jury delivered its verdict just before 1 p.m., after six hours of deliberations that followed a nine-day trial.

Nagin, 57, joins a list of Louisiana elected officials convicted of misdeeds while in office, but he is New Orleans' first mayor to be convicted of public corruption.  Under federal sentencing guidelines, he could face a 20-year prison term, possibly more, lawyers have said.

In a case that relied heavily on the testimony of businessmen-turned-convicts -- and a paper trail that showed money changing hands and lucrative city contracts doled out -- prosecutors described a public official "on the take."  Nagin was an opportunist who pursued businessmen under pressure to get government work, targeting them to line his own pockets, prosecutors said....

Nagin was somber and silent as he made his way through a crush of reporters outside of the courthouse -- a far cry from the confidence he showed when he first arrived more than two weeks ago at the start of his trial.  Addressing the press, Jenkins said, "Obviously, I'm surprised. Now we're moving on to the appeal process."

Assistant U.S. Attorney Matt Coman, the lead prosecutor on the case, gave a brief statement. "We are pleased with the verdict and obviously we are very thankful to the jury and the court," he said....

Nagin, a Democrat, was the public face of the city during Hurricane Katrina, making national headlines as he lambasted the federal government for its response to the storm and subsequent flood.

He lives in Frisco, Texas, where he has avoided the spotlight, staying quiet save for an occasional tweet, since his indictment a year ago. Sentencing is set for June 11 before U.S. District Judge Ginger Berrigan.

As the title of this post suggests, I would urge now-convicted Nagin to urge his lawyers to get very focused on the federal sentencing process before they start "moving on to the appeal process." As the article above notes, federal prosecutors are likely to argue that the guidelines applicable here recommend a sentence of decades for Nagin, and judges within the Fifth Circuit tend to be drawn toward imposing within guidelines sentences. Ergo, unless and until Nagin's lawyers start developing some strong sentencing arguments on his behalf, the former mayor of New Orleans may be looking at the real possibility that he gets a federal prison sentence later this year that amounts to a functional life sentence.

February 12, 2014 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (11) | TrackBack