Monday, November 23, 2015

US District Judge Bennett finds legal limit to giving retroactive effect to new lower federal drug sentencing guidelines

Regular readers know that US District Judge Mark Bennett regularly produces thoughtful and thorough opinions on an array of cutting-edge federal sentencing issues.  The latest Judge Bennett opus arrived today via US  v. Feauto, No. CR 12-3046-MWB (D. Iowa Nov. 23, 2015) (available for download below).  As this start to the Feauto opinion reveals (with lengthy footnotes left out and breaks added), Judge Bennett's latest work likely means a not-so-happy Thanksgiving week for at least on federal defendant:

Before me for consideration is defendant Randy Feauto’s eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) in light of Amendment 782, the “All Drugs Minus Two Amendment,” to the United States Sentencing Guidelines.  The parties and the Federal Defender for the Northern and Southern Districts of Iowa, as invited amicus curie, argue that a defendant subject to a mandatory minimum sentence who previously received a “substantial assistance” reduction below that mandatory minimum can be resentenced pursuant to Amendment 782 without regard to the mandatory minimum.  That position was originally music to my ears, because I have consistently — and vehemently — disagreed with the harshness of most mandatory minimum sentences.  In fact, in most of the over 1,000 congressionally-mandated mandatory minimum sentences that I have imposed over the past twenty-two years, I have stated on the record that they were unjust and too harsh.  I would often inform or remind defendants and their families and supporters in the courtroom that reform of mandatory minimum sentencing must come from the legislative branch of our federal government — Congress.

So it is with significant irony, but consistent with my view that only Congress has the authority to waive mandatory minimum sentences (with the exception of substantial assistance motions, pursuant to § 3553(e) and FED. R. CRIM. P. 35(b), and “safety valve” eligibility, pursuant to § 3553(f)), that I disagree with the parties’ argument that the Sentencing Commission has the authority to use Amendment 782, or any other amendment to the Sentencing Guidelines, to “nullify” a mandatory minimum sentence established by Congress.  For the reasons set forth below, my understanding is that only Congress itself, not the Sentencing Commission or the Judicial Branch, has that power.  Consequently, the proper net effect of Amendment 782, applied either retroactively or prospectively, is that it can only reduce the sentence of a defendant who originally received a reduction for substantial assistance if he had no mandatory minimum or both his original guideline sentence and his amended guideline sentence are above his mandatory minimum.  Feauto is not such a defendant.

I fully recognize that, like the vast majority of mandatory minimum sentences themselves, this construction leads to a harsh result, but fidelity to the rule of law and principles of non-delegation and separation of powers trumps any personal views on the harshness of federal sentencing.  As discussed below, the construction urged by the parties and amicus creates an Alice In Wonderland like scenario in which the retroactive application of Amendment 782 opens a rabbit hole that Feauto, instead of Alice, falls through and receives a lower sentence in Wonderland than if he were originally sentenced today for his crime with the application of post-Amendment 782.  Surely, this Mad Tea Party scenario creates the very kind of unwarranted disparity the guidelines were intended to avoid.

Download Feauto.Final

November 23, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, November 16, 2015

Sentencing prominent federal defendants: should sex offender Jared Fogle or Sunwest CEO fraudster get longer prison term?

Two notable (and notably different) federal prosecutions are to reach sentencing this week in Indiana and Oregon.  Though the crimes and defendants are not similar, the range of sentences being requested by prosecutors and defendants in these two cases are comparable.  Via press reports, here are the basic elements of these two federal cases (with links to some underlying documents):

Jared Fogle, who pleaded guilty to federal sex offenses, "Jared Fogle asks for 5-year prison term in court filing before sentencing":

Jared Fogle's attorneys asked for a five-year prison term for the former Subway restaurant pitchman in a court filing before his sentencing Thursday.  The filing says Fogle will speak publicly during his hearing before Judge Tanya Walton Pratt in federal court in Indianapolis.  "He is painfully aware of the fact that he has impacted the lives of minor victims, hurt those closest to him and, for all practical purposes, destroyed the life he worked to build over the last 18 years," the filing says.

Fogle has agreed to plead guilty to two counts: possession of child pornography and traveling across state lines to engage in sex with a minor.  The prosecutor is asking for 12½ years in prison, followed by a lifetime of supervised probation.  That was the maximum sentence the U.S. attorney had agreed to seek in a plea bargain struck with Fogle in August. Fogle faced a maximum sentence on the two federal felony charges of 50 years.  The judge has discretion to sentence Fogle to more or less than what the prosecution has requested.

The defense filing acknowledges that the advisory sentencing guideline is 135 to 168 months, but said it is "entitled to little weight because it is the result of a flawed and widely criticized set of … provisions."

Jon Michael Harder, who pleaded guilty to federal fraud offenses, "Former Sunwest CEO, facing sentencing for $130 million fraud, apologizes for 'carnage and problems'":

U.S. prosecutors accuse former Sunwest Management CEO Jon Michael Harder of orchestrating the biggest investment fraud in Oregon history, and they are asking a judge to sentence him to 15 years in prison.  IRS criminal investigators say that as the head of a vast network of assisted living centers, he helped make off with $130 million from 1,000 investors between 2006 and 2008.

Harder will go before a judge Monday morning for a rare two-day sentencing hearing before U.S. District Judge Michael H. Simon, who found him guilty last January of mail fraud and money laundering.  

Harder's legal team, seeking leniency, is asking Simon to sentence him to five years in prison. Assistant Public Defender Christopher J. Schatz took the unusual step of filing a court declaration that describes his client as possibly suffering from undiagnosed post-traumatic stress disorder from the emotional clubbing he took after Sunwest's failures.  "Many of the investors in Sunwest were family members, family friends and members of the Seventh Day Adventist community," Schatz wrote. "Mr. Harder feels that he let all the investors down, that he failed them all."  

Harder, too, filed a court paper — a letter of apology to Simon.  "I feel incredibly badly for all the carnage and problems that I have caused," he wrote. "I have obsessed, over the last 7 ½ years, about what I should have or could have done differently in operating Sunwest."

government sentencing memo paints Harder as a chief executive who burned through corporate cash as if it were his own. He drove luxury cars, owned six homes, and once flew about 100 people to Alaska — most of them Sunwest employees — to go fishing.

Intriguingly, it seems that the federal sentencing guidelines would call for a much, much longer sentence for the fraudster than the sex offender: while Jared Fogle appears to be facing a guideline sentencing range of roughly 12 to 14 years, Jon Harder appears to be facing a guideline sentencing range of life without the possibility of parole.

November 16, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10)

Thursday, November 12, 2015

Federal prosecutors seeking plea-deal max sentence of 12.5 years for Jared Fogle

As reported in this local article, headlined "Prosecutor to ask court to sentence Jared Fogle to 12.5 years," the feds have filed their sentencing recommendations in the child sex prosecution of former Subway pitchman Jared Fogle. Here are some of the details via the press report:

A court filing by prosecutors in advance of Jared Fogle's sentencing next Thursday tells the judge she must send a message to others involved in child exploitation.  Fogle, the former Subway pitchman, has agreed to plead guilty to two counts: possession of child pornography and traveling across state lines to engage in sex with a minor.

The prosecutor is asking U.S. District Judge Tanya Walton Pratt to sentence Fogle to 12-1/2 years in prison, followed by a lifetime of supervised probation.  That was the maximum sentence the U.S. Attorney had agreed to seek in a plea bargain struck with Fogle in August.  Fogle faced a maximum sentence on the two federal felony charges of 50 years.  The judge has discretion to sentence Fogle to more or less than what the prosecution has requested.

"Persons with a sexual attraction to young children may be difficult to deter, but these sentences matter," the document said.  "These offenders frequently communicate with each other online and they are concerned about the law enforcement efforts. "In many ways, the results of these cases help to deter and teach by example.  There is no avoiding the point that, whatever the result, in this matter, it will be closely watched by current and potential offenders who have not yet been identified."

The document said that Fogle "repeatedly expressed sexual fantasies concerning children to multiple persons," but despite exhaustive investigation, "no victims under the age of 18 years could be specifically identified from those victims already charged in this case."  Prosecutors have identified 14 victims.  Prosecutors said in the filing that they were trying to prevent more trauma to the victims in a high-profile case that has already caused "substantial anguish."

"A public trial would only have made this process of healing even more protracted and difficult, without changing the outcome," the filing said. Among the new information in the court filing:

• Fogle paid for sex from adults "on hundreds of occasions."

• Some of the commercial child pornography he had, which prosecutors believe was produced in Eastern Europe, included actual or simulated sexual intercourse by children as young as 6.

• Russell Taylor, former head of Fogle's foundation, who has also agreed to plead guilty to child porn charges, gave minors drugs, alcohol and money to induce them into sex acts. Two of the minors were 14 years old.

Taylor will be sentenced Dec. 10. In his case, prosecutors agreed not to seek a sentence of more than 35 years in prison.  Taylor agreed not to ask for less than 15 years in prison.

The new court filing said that Fogle rationalized his viewing of child porn made by Taylor. Because Taylor was going to secretly produce the material anyway, "he might as well benefit from the production by seeing the results, which interested him."

Prosecutors noted that Fogle had a "good childhood" and that his wife, who has filed for divorce, "had no idea he was doing any of these things."

Prior related posts:

November 12, 2015 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

"Who Gets Time for Federal Drug Offenses? Data Trends and Opportunities for Reform"

The title of this post is the title of this notable new data analysis from The Urban Institute.  Here are snippets from the start and end of the short and reader-friendly report:

Almost half (45 percent) of the 95,305 individuals in federal prison for drug offenses are in the lowest two criminal history categories, indicating minimal prior convictions and a low risk of recidivism.2 In fact, over one-quarter (26 percent) have no prior criminal history.

Further, over three-quarters of all individuals in federal prison for drug offenses have no serious history of violence before the current offense. More than half have no violent history, and nearly a quarter have minor histories of violence, such as a simple assault and other crimes that do not typically lead to serious injury....

At the end of the FY 2014, individuals serving drug sentences accounted for 49 percent of the total federal prison population. Though recent policy changes have helped reverse upward trends in population size, the Urban Institute’s Federal Prison Population Forecaster shows that continuing population declines will require significantly shorter lengths of stay for drug offenses.  Congressional leaders are considering legislative action that would reduce some mandatory minimum penalties and grant judges greater discretion to sentence individuals to shorter prison stays for drug offenses.  While the exact impact of these bills is unknown, lasting reductions in the size of the federal prison population will only come from big cuts in lengths of stay for drug offenses.  The Task Force will be considering such reforms as part of its deliberations and expects to build on the efforts under way in Congress.

November 12, 2015 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Saturday, November 07, 2015

Thanks to retroactive drug guidelines, federal prison population under 200,000 for first time in nearly a decade

I was pleased to discover from this webpage providing a weekly updating of the official federal prisoner headcount that, for the first time in nearly a decade, the federal prison population is now officially under 200,000.  I believe that the official count last week was around 205,000, and thus it would seem that this milestone was achieved officially as a result of the implementation of the first set of drug-2 retroactivity early prisoner releases.

I have heard talk in various settings of an interest in having the federal prison population down eventually to 150,000 (which, I believe, would still have the facitlities officially a bot above their standard capacity).  I think the passage and effective implementation of the bipartisan federal sentencing reform bills now in Congress would likely go a long way to getting to that goal in a responsible way.     

November 7, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Friday, November 06, 2015

"How Federal Judges Contribute to Mass Incarceration and What They Can Do About It"

The title of this post is the title of this notable new article by US District Judge Lynn Adelman and his clerk Jon Deitrich now available via SSRN. Here is the abstract:

Talk of reforming federal sentencing law by eliminating some mandatory minimum sentences is much in the air. The fact is, however, that many federal offenders are unnecessarily imprisoned in cases where there is no mandatory minimum.

This article attempts to expand the conversation about excessive imprisonment by discussing first how the federal sentencing guidelines place far too much emphasis on prison and far too little on sentences served in the community. Next, we discuss federal judges' excessive attachment to the guidelines despite their deep flaws and even after the Supreme Court has made clear that judges are free to reject them. Finally, we propose an approach to federal sentencing that is much less deferential to the guidelines and places much more emphasis on 18 U.S. § 3553(a), the parsimony statute, which requires judges to impose the least punitive sentence necessary to achieve the goals of sentencing.

November 6, 2015 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Thursday, November 05, 2015

US Sentencing Commission hearing about how to fix Johnson problems in sentencing guidelines

As this webpage reports, this morning the US Sentencing Commission is holding a public hearing in Washington, DC "to receive testimony from invited witnesses on proposed amendments to the federal sentencing guidelines."  This hearing is being live-streamed here, and this hearing agenda now has links to all the scheduled witnesses' written testimony.

Helpfully, the start of this written testimony from the first witness, Judge Irene Keeley, Chair, Committee on Criminal Law of the Judicial Conference of the United States, provide a useful overview of what the USSC is working on:

On behalf of the Criminal Law Committee of the Judicial Conference of the United States, I thank the Sentencing Commission for providing us the opportunity to comment on proposed changes to the sentencing guidelines definitions of “crime of violence” and related issues.  The topic of today’s hearing is important to the Judicial Conference and judges throughout the nation.  We applaud the Commission for undertaking its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction and the impact of such definitions on the relevant statutory and guideline provisions. We also thank the Commission for considering whether to promulgate these guideline amendments to address questions that have been or may be raised by the Supreme Court’s recent opinion in Johnson v. United States, 135 S. Ct. 2551 (2015).

The Judicial Conference has authorized the Criminal Law Committee to act with regard to submission from time to time to the Sentencing Commission of proposed amendments to the sentencing guidelines, including proposals that would increase the flexibility of the guidelines.  The Judicial Conference has also resolved “that the federal judiciary is committed to a sentencing guideline system that is fair, workable, transparent, predictable, and flexible.”

As I discuss below, the Criminal Law Committee is generally in favor of the Commission’s proposed amendments, particularly those intended to address or anticipate questions raised by Johnson.  As you know, the definition of the term “crime of violence” for purposes of the career offender guideline has been the subject of substantial litigation in the federal courts.  We support any efforts to resolve ambiguity and simplify the legal approaches required by Supreme Court jurisprudence.  Additionally, our Committee has repeatedly urged the Commission to resolve circuit conflicts in order to avoid unnecessary litigation and to eliminate unwarranted disparity in application of the guidelines.  The Commission’s proposed amendment would reduce uncertainty raised by the opinion while making the guidelines more clear and workable.  

With regard to the proposed guideline amendments concerning issues unrelated to Johnson, the Committee generally supports or defers to the Commission’s recommendations.  The Committee opposes amending, however, the current definition of “felony” in the career offender guideline. Finally, the Committee supports revising other guidelines to conform to the definitions used in the career offender guideline to reduce complexity and make the guidelines system more simple and workable. 

November 5, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Friday, October 30, 2015

Prez candidate Hillary Clinton now talking abut equalizing crack and powder federal sentences

Flip-flop-Hillary-Long-time readers with a very good memory and those who have followed the debates over crack/powder federal sentencing for a very long time may recall that earliy in the 2008 Prez campaign, candidate Hillary Clinton came out opposed to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007.  Here are a few posts from eight years ago on this blog on that topic:

I raise this notable federal crack sentencing history concerning Hillary Clinton because of this notable new Wall Street Journal article headlined "Hillary Clinton Calls for Equal Treatment in Cocaine Sentencing." Here are excerpts:

Democratic presidential front-runner Hillary Clinton is calling for equal treatment in sentencing drug offenders who use crack and powder cocaine, part of her agenda for overhauling the criminal justice system. She’s also reiterating her support for a ban on racial profiling by law enforcement officials.

A Clinton aide said she would announce the proposals on her trip Friday to Atlanta, where she plans to address a Rainbow PUSH Ministers’ lunch hosted by the Rev. Jesse Jackson, and where she will appear at a rally to launch African Americans for Hillary, a group supporting her campaign.

Mrs. Clinton’s support among African-Americans is strong and has remained so even through a rocky summer that saw her poll numbers fall with many other voters. Black voters play a significant role in certain Democratic primary states, including South Carolina, which hosts the third nominating contest, and throughout the South, where primaries are set for March 1....

Her approach to criminal justice issues in this campaign is notably different from the tone she took both as first lady and as a U.S. senator, and reflects a growing political consensus that the crackdown on crime that was in full force when Bill Clinton was president has gone too far....

On Friday, she will lay out two specific ideas, with more proposals coming next week, the campaign aide said. First, she’ll propose eliminating disparities in sentencing for people caught with crack and powder cocaine. In 2010, President Barack Obama signed legislation that reduced the sentencing disparity. Until then, to be charged with a felony, crack users had to possess just five grams of the drug, but powder cocaine users needed to be found with 500 grams, a 100-to-1 disparity.

A majority of crack offenders are black, whereas whites are more likely to be caught with powdered cocaine, leading to a dramatic racial disparity in punishment. The gap dropped to 18-to-1 under the 2010 legislation, with the threshold for crack rising to 28 grams. But advocates say that isn’t enough.

The ACLU called the 2010 legislation a “step toward fairness” but said more was needed. “Because crack and powder cocaine are two forms of the same drug, there should not be any disparity in sentencing between crack and powder cocaine offenses—the only truly fair ratio is 1:1,” the group said.

The campaign aide said Mrs. Clinton would support further increasing the threshold for crack offenses so it meets the existing powder cocaine guidelines.

As a senator, Mrs. Clinton supported reducing the disparities between sentencing for crack and powder cocaine. But as a presidential candidate in 2007, she opposed making shorter sentences for crack offenders retroactive, a position that put her to the right of other Democratic candidates. This time, she supports making the change retroactive.

October 30, 2015 in Campaign 2016 and sentencing issues, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

Thursday, October 29, 2015

Did former House Speaker Hastert get a sweetheart sentencing deal from federal prosecutors?

The question in this post is prompted by this lengthy new Politico article headlined "Hastert's sweet deal: Lawyers question whether federal prosecutors are following guidelines." Here are excerpts:

House Speaker Dennis Hastert’s guilty plea in a hush-money case has some lawyers asking whether the former speaker is getting a sweetheart deal.

At a court hearing in Chicago Wednesday, the prosecution and defense unveiled Hastert’s plea bargain under which he admitted to a felony charge of structuring $952,000 into 106 separate bank withdrawals to avoid federal reporting requirements. The two sides agreed that sentencing guidelines call for Hastert to receive between zero and six months in jail.

But legal experts say those guidelines arguably call for a much longer sentence—closer to two to three years or more, including a potential enhancement for obstruction of justice. And some lawyers say they’re baffled that prosecutors would buy into a calculation that opens the door to Hastert getting a sentence of probation. “It seems like a sweet deal,” University of Richmond law professor Carl Tobias said. “It’s just hard to understand.”

The indictment in the case also charged Hastert with lying to the FBI about what he did with the money, concealing that he paid it to a longtime associate in an effort to hide past misconduct. In the plea deal, Hastert admitted to misleading the FBI, but prosecutors agreed to drop the false statement charge....

The agreement between prosecutors and Hastert’s defense that the zero-to-six-month sentencing range is applicable to his case is not the end of the matter. A probation officer will also calculate the range and could disagree with the parties. Durkin will ultimately decide what the guidelines call for. Under the plea deal, Hastert retains the right to appeal the sentence to the 7th Circuit.

Under a 2005 Supreme Court decision, the judge is required to consult the guidelines but he can impose a more or less severe sentence. Experts in structuring cases say judges often sentence below the guidelines, especially in so-called “clean money” cases where the government does not allege that the funds were the product of illegal activity like drug dealing or were being used to avoid taxes.

"The sentencing guidelines for clean-source money cases are totally out of whack," the ex-prosecutor said. "It's insane to sentence someone for a purely regulatory violation as severely if not more severely than someone who defrauded someone out of $952,000. Having said that, there are a good measure of bad acts here, so maybe there would be some rough justice in it."

Prosecutors have alleged that Hastert paid the $952,000 in illegally structured withdrawals to a longtime associate because of Hastert’s past misconduct against that person, identified in court filings only as “Individual A.” Sources have alleged the behavior involved sexual contact with a male student while Hastert was a coach and high school teacher several decades ago, but the indictment does not mention any sexual aspect to the charges.

Experts say Hastert could not be charged or sued today over such acts years ago because the relevant statutes of limitations have expired. Lawyers say a key factor in Hastert's ultimate sentence could be whether Durkin decides Hastert's underlying misconduct is relevant for the purpose of sentencing on the bank reporting charge.

Criminal defense attorney Michael Monico, who co-authored a handbook on federal court practices in Illinois and the greater Midwest, said Durkin will want to know Hastert's motivation for paying out the $3.5 million and the exact nature of the behavior he was trying to hide.

"If I were the judge I would ask about it, I would want to know. I would want to know, what was he hiding?" Monico said. "I think that’s the number one question in the case: Is it relevant to his sentencing what Hastert did to this fellow decades ago? If it isn’t relevant, then probation is OK. If the conduct was despicable then it’s not an appropriate sentence. It seems to me that’s a question the judge has to answer."

October 29, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

Sunday, October 25, 2015

Great Hastings Law Journal coverage of federal sentencing circa 2015

Earlier this year, I had the honor of participating in a Hastings Law Journal symposium on federal sentencing reform a decade after Booker.  During the live event back in February, I thought that the written product of the symposium would be terrific if it captured even just a small piece of the many ideas developed during the live event. This current issue of Hastings Law Journal has these resulting articles, and they are all terrific:

Keynote Address: Federal Sentencing Reform Ten Years After United States v. Booker by Hon. Charles Breyer

Merit-Based Sentencing Reductions: Moving Forward on Specifics, and Some Critique of the New Model Penal Code by Rory Little

Incentivizing Excellence: A Suggestion for Merit-Based Reductions from a Twenty-Six-Year Federal Prison Insider by Michael Santos

Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment by John Pfaff

October 25, 2015 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (0)

Thursday, October 22, 2015

BJS releases big new statistical study on "Federal Sentencing Disparity: 2005–2012"

As detailed at this webpage, the Bureau of Justice Statistics today released a notable new study, excitingly titled " "Federal Sentencing Disparity: 2005–2012," which is described this way:  

Examines patterns of federal sentencing disparity among white and black offenders, by sentence received, and looks at judicial variation in sentencing since Booker v. United States, regardless of race. It summarizes U.S. Sentencing Guidelines, discusses how approaches of other researchers to the study of sentencing practices differ from this approach, defines disparity as used in this study, and explains the methodology.  This working paper was prepared by Abt Associates for BJS in response to a request by the Department of Justice's Racial Disparities Working Group to design a study of federal sentencing disparity.  Data are from BJS's Federal Justice Statistics Program, which annually collects federal criminal justice processing data from various federal agencies. The analysis uses data mainly from the U.S. Sentencing Commission.

The full lengthy study is available at this link, and this one-page summary highlights some of these notable substantive findings:

Racial disparity

In the 8-year period between 2005 and 2012, black men received roughly 5% to 10% longer prison sentences than white men for similar crimes, after accounting for the facts surrounding the case.  While there has been a trend toward more lenient sentences overall, white males have seen larger declines in average prison sentences than black males.  Black males did not benefit as much from this increased leniency, which widened the existing racial sentencing disparity between these two groups.  The disparity between black and white males narrowed as crimes became more serious.  Race probably correlated with other characteristics — such as education, income, demeanor, and location — which might have accounted partially for the differing sentences among white and black males.

Judge effect

The exercise of prosecutorial discretion did not change much during the study period, although racial disparity increased during that time.  The trend is likely attributable to individual judges’ behavior.  Evidence from the study suggests considerable differences in the sentences that judges assigned for white and black offenders.  Judges disagreed about the relative sentences for white and black males, and some judges gave black males especially longer sentences.  However, judges who imposed above-average prison terms on black offenders also tended to impose above-average prison terms on white offenders.  And judges who sentenced white offenders to below-average prison terms also commonly gave below-average prison terms to black offenders.  Sentences were disparate in that similarly situated offenders who had committed similar crimes received sentences that differed depending on the judge who imposed the sentence.

Female sentencing

Judges were found to disagree more about the sentences for females than the sentences to be imposed on males.  As a whole, females and white males received less severe sentences than black males over the 8-year study period.  Black females were found to not be disadvantaged compared to white females.

October 22, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender | Permalink | Comments (11)

Monday, October 19, 2015

"13 Words That Could Mean Freedom for Many: The debate over the federal ‘residual clause’"

The title of this post is the headline of this effective Marshall Project piece discussing some of the sentencing guideline fall out of the Supreme Court's Johnson ACCA vagueness ruling.  I recommend the full piece, which starts this way (links from original):

Erskine Smith was 24 when he pleaded guilty to selling cocaine in Pittsburgh. Before the plea, a letter from the government estimated his sentence at 108 months to 135 months, or about nine to 11 years.  But once he pleaded guilty, Smith received a presentence report that floored him: the report set the sentence at a mandatory 292 months to 365 months, or about 24 to 30 years.  A judge sentenced him in 1993 to 30 years in prison.

The primary reason for the extra years: Two prior “crimes of violence” that the court agreed made Smith a career offender.  Smith had punched a man at age 18 and assaulted another in his hotel room at 20.  Each conviction was for simple assault, a Pennsylvania misdemeanor, for which he served no jail time.  But the federal government classified the crimes as violent felonies, a designation that meant Smith would be sentenced under the career offender guideline of the Federal Sentencing Guidelines, which boosts sentences for people who have previously been convicted of two violent or drug felonies.

Each year, about 2,000 people are sentenced under the career offender guideline. For about three-quarters of them, the most recent crime is drug-related.  Though the sentencing guidelines have been advisory since 2005, experts say judges still tend to rely on them.  Federal non-career drug offenders get an average of nearly 69 months, while career drug offenders get an average of nearly 169 months, according to data from 2005 to 2014 analyzed by the Federal Defenders.

But a June Supreme Court ruling may get some of them, including Smith, a new sentence. In Johnson v. United States, the Court struck down the the less-than-sexily named “residual clause” of the Armed Career Criminal Act, deciding it was unconstitutionally vague.  Because of the decision, many people sentenced under the Armed Career Criminal Act will get at least five years knocked off their sentence.

The same clause appears in the career offender guideline, and defense lawyers are hoping it will meet the same fate.  They are now asking federal appellate courts to apply Johnson to the career offender guideline and resentence long-serving prisoners who have not benefited from recent, more publicized, reforms.

Some prior related posts:

October 19, 2015 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Thursday, October 15, 2015

New amicus brief to Eleventh Circuit seeking reconsideration of Johnson vagueness challenge to career-offender guideline

In this post just a few days after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the career offender guideline of the US Sentencing Guidelines.  Notably, the Justice Department has consistently conceded Johnson-based constitutional problems with the existing career offender guideline because the key phrase found vague in Johnson is part of the guideline definition of a career offender.  And a few appellate rulings have assumed without deciding that Johnson creates problems for existing career offender guideline sentencing.

But, as noted in this post a few weeks ago, an Eleventh Circuit panel in US v. Matchett, No. 14-10396 (11th Cir. Sept. 21, 2015) (available here), squarely addressed this issue and ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  I considered this ruling suspect, and thanks to Carissa Hessick and David Markus, I have now been able to play a role in explaining to the full Eleventh Circuit just why.  Specifically, Carissa primarily drafted and I primarily tweaked an amicus brief that David helped finalize and file today urging en banc review in Matchett.  The full brief can be downloaded via SSRN, and here is how it gets started:

The U.S. Sentencing Guidelines dramatically increase a defendant’s sentencing range if she has at least two prior convictions for a “crime of violence,” which U.S.S.G. § 4B1.2(a)(2) defines to include crimes that “involve[] conduct that presents a serious potential risk of physical injury to another.”  As the panel in this case acknowledged, that definition is identical to the definition in 18 U.S.C. § 924(e)(2)(B), which the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), found to be unconstitutionally vague in violation of the Due Process Clause.

Nevertheless, the panel in this case held that § 4B1.2(a)(2) is not unconstitutionally vague, reasoning that the vagueness doctrine does not apply to the now-advisory Sentencing Guidelines.  That conclusion is inconsistent with Supreme Court decisions on the vagueness doctrine and the Sentencing Guidelines.  The panel’s decision also upsets the careful balance that the Supreme Court has struck between uniformity and discretion in federal sentencing after United States v. Booker, 543 U.S. 220 (2005).  Finally, the panel decision fails to appreciate that it faced a unique situation in which a Guideline contains language identical to a federal statute declared void for vagueness by the Supreme Court.  Both the narrow basis for that decision, as well as ordinary Commission practice of reviewing and revising the Sentencing Guidelines, ensure that few Guidelines will become susceptible to serious vagueness challenges.  This Court accordingly should grant en banc review.

October 15, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Saturday, October 10, 2015

Via the National Review, an unintended parody of various arguments against modest federal sentencing reform

Tumblr_mr31fpWYLB1qzpxx1o1_500I generally respect and benefit form the work Bill Otis does over at Crime & Consequences criticizing sentencing reform movements because, despite sometimes overheated rhetoric, he generally uses sound data and reasonable aguments to make out the best case in defense of the modern federal sentencing status quo.  Though I think Bill is often wrong on the merits, especially with respect to federal statutory sentencing reform issues, he is justifiably seen as an important voice in the public-policy debate because he regularly makes responsible and sober claims in support of his various positions.

I bring all this up as a prelude to spotlighting this notable new National Review commentary by Andrew McCarthy, headlined "Keep Minimum Sentencing, to Discourage Criminals." This lengthy piece, in my view, reads almost like a parody (unintentionally, I assume) of many arguments against federal sentencing reform that Bill and some other prosecutors make much more soundly in other settings. Here are some few passages from the piece that strike me as especially cringe-worthy:

Young Americans for whom the Reagan administration is ancient history, New Yorkers who grew up in the post-Giuliani City — they have no memory of what it was like from the Sixties into the early Eighties. For them, the revolution in crime-fighting that so dramatically improved the quality of American life is not revolutionary. It is simply ... life. There is nothing hard-won about it. It is not informed by the dark days when rampant crime was fueled by a criminal-rights campaign premised on many of the same loopy ideas that undergird Washington’s latest fetish, “sentencing reform.”

The worst of those ideas is to roll back “mandatory minimum” sentences. These are terms of imprisonment, often harsh ones, that must be imposed for serious crimes. Mandatory minimums tie the hands of judges, mandating that they take hard criminals off the streets rather than slap them on the wrists. Before the Reagan era, federal penal laws prescribed potentially severe sentences for serious offenses ...[but a] judge was also free to impose the minimum sentence of no time whatsoever. What punishment to impose within that expansive statutory range from zero to 50 years was wholly the judge’s call. In effect, this nearly boundless discretion transferred control over punishment for crime from the public to the courts.

Federal judges tend to be very good at the difficult job they are trained to do: apply law, which is frequently arcane and sometimes inconsistent, to factual situations, which have their own complexities. This skill, however, does not necessarily translate into expertise in making punitive judgments that are governed less by legal rules than gut feeling — gut feeling being what controls broad discretion....

Even if many judges were not instinctively sympathetic to arguments in favor of harsh sentencing, sympathy comes with the institutional territory. The judge’s duty is not to promote public safety; it is to ensure that parties before the court receive justice. It is a bedrock conceit of those who toil in the justice system that the public perception of justice is just as vital as the objective reality of justice. Thus, the judge has great incentive to bend over backward to give convicted defendants every bounce of the due-process ball.

It is a lot easier to call for a harsh sentence from the peanut gallery than to be the judge who has to impose a sentence after a desperate plea for leniency has been made and while the defendant’s mother, wife, and kids weep in the first row. So whether the pressures were ideological, institutional, or rooted in human nature, judges were often weak sentencers. That weakness translated into the inadvertent promotion of crime by failing to disincentivize it and failing to sideline career criminals. Mandatory minimums were thus enacted by overwhelming congressional margins in order to divest judges of the discretion to impose little or no jail time for serious crimes and habitual criminals.

It is the latest Beltway fashion to demand that mandatory minimums be rolled back, if not repealed, on the theory that incarceration causes rather than drastically reduces crime. Or, since that claim doesn’t pass the laugh test, on the theory that incarceration is racist — the great American conversation ender. Beyond the in terrorem effect of the racism smear, the latter rationale relies on the overrepresentation of minorities, particularly blacks and illegal aliens, in the prison population — and banks on your being too cowed to bring up the overrepresentation of minority communities in the crime-victim population.

Alas, a “reform” that reduces mandatory minimums will benefit only one class of people — serious felons who commit many more crimes than they are prosecuted for. And racism? Please. We have, to take one pertinent example, a harsh mandatory minimum sentence for predators who are convicted of a felony after having previously being convicted of three other serious crimes. Congress wasn’t targeting race; it was targeting sociopaths.

Understand, I am not contending that the criminal-justice system is without flaws badly in need of correction. But the main problem is not severe sentencing. It is over-criminalization.

Too much formerly innocent private conduct has become prohibited, making criminals out of essentially law-abiding people. Law is supposed to be a reflection of society’s values, not a tool by which society is coerced to transform its values. Moreover, when the statutes, rules, and regulations proliferate to the point that it becomes unreasonable to expect average people to know what is forbidden, we no longer have a nation of laws; we have a nation of men arbitrarily deciding which of the presumptively guilty get punished and which go unscathed.

If a problem is not accurately diagnosed, it will not be cured. There is a prescription for what ails us, but it is most certainly not a repeal of the severe sentences enacted to address serious crime. Nothing that rewards real criminals at the expense of the people they victimize should trade under the name of “reform.”

I share the closing sentiment that a problem need to be accurately diagnosed to be solved. But there are so many problems in the arguments before that sentiment, I almost feel unable to unpack them all in the space. What I find especially peculiar are the suggestions here that sound sentencing is necessarily only about "gut feeling," that it is problematic judges consider "every bounce of the due-process ball," and that sentencing would be better if more attentive to every "call for a harsh sentence from the peanut gallery." Also remarkable is the suggestion that any and everyone subject to an existing federal mandatory minimum is a "sociopath" that must be subject to severe punishment because surely they have committed "many more crimes than they are prosecuted for."

All these curious contentions aside, I find it especially remarkable how McCarthy concludes after saying nothing is wrong with the harsh mandatory drug and gun sentences created in recent decades by Congress and applied (inconsistently) by federal prosecutors. He says the "main" problem is other federal criminal laws created in recent decades by Congress and applied (inconsistently) by federal prosecutors which creates, so he claims, a "nation of men arbitrarily deciding which of the presumptively guilty get punished and which go unscathed." In other words, it seems, when it comes to imposing punishment for crimes, we should continue to distrust modern judges and trust old mandatory sentencing laws created by Congress in the 1980s, but when it comes to defining what is a crime, we should not trust Congress because somehow they enact criminal laws (but not "severe sentences") that are not really "a reflection of society’s values."

I trust I am not the only one who see how backward a lot of what is being said here. But apparently the folks at the National Review see reasonable logic or some kind of wisdom here that perhaps requires spending more time in the Beltway to understand. Or maybe I just need to go re-watch Breaking Bad, which NR has extolled, so I can better understand the "sociopaths" federal judges cannot be trusted to sentence properly because they have the wrong "gut feeling" while concerned with "every bounce of the due-process ball."

October 10, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (4)

Tuesday, October 06, 2015

"Unsophisticated Sentencing"

The title of this post is the title of this notable paper about a notable federal sentencing provision authored by Miriam Baer and now available on SSRN. Here is the abstract:

This essay, written for the Wayne Law Review’s 2014 Symposium on white collar crime and sentencing, examines the rising popularity of the “sophisticated means” enhancement under Section 2B1.1 of the United States Sentencing Guidelines. Over the past decade, the rate at which federal courts apply the enhancement in criminal fraud cases has more than tripled.

This Essay considers several possible explanations for the enhancement’s increasing prevalence, including the possibilities that: (i) fraud offenders as a whole have become more sophisticated; (ii) federal prosecutors are investigating and charging more sophisticated frauds; and (iii) the enhancement’s meaning has, over time, gradually expanded to include additional conduct, a phenomenon I refer to as “sentencing creep.” With this final explanation in mind, the Essay concludes with some practical advice for reinvigorating the enhancement as a useful sorting device.

October 6, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Early prisoner release following reduced drug guideline retroactivity about to be reality

It seems like a real long time ago that the US Sentencing Commission suggested it might reduced the severity of its drug sentencing guidelines across the board. (In fact, it was way back in early January 2014, as reported in this post.)  That USSC proposal a few month later became a formal guideline amendment known as drugs -2 (as reported here in April 2014); some months after that, the USSC formally voted to make this reduced guideline fully retroactive to those already serving long federal drug prison sentences (as reported here in July 2014).  

But when making its reduced drug guidelines retroactive, the USSC also provided that no federal drug prisoner should be released until fall 2015 in order to give courts and prisons time to process all thousands of folks who would not be eligible to seek early release.  Now, as this new Washington Post piece reports, all this USSC reform is finally going to mean thousands of prisoners actually securing early releases:

The Justice Department is set to release about 6,000 inmates early from prison — the largest one-time release of federal prisoners — in an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades.

The inmates from federal prisons nationwide will be set free by the department’s Bureau of Prisons between Oct. 30 and Nov. 2. Most of them will go to halfway houses and home confinement before being put on supervised release.

The early release follows action by the U.S. Sentencing Commission — an independent agency that sets sentencing policies for federal crimes — which reduced the potential punishment for future drug offenders last year and then made that change retroactive....

The panel estimated that its change in sentencing guidelines eventually could result in 46,000 of the nation’s approximately 100,000 drug offenders in federal prison qualifying for early release. The 6,000 figure, which has not been reported previously, is the first tranche in that process.

“The number of people who will be affected is quite exceptional,” said Mary Price, general counsel for Families Against Mandatory Minimums, an advocacy group that supports sentencing reform. The Sentencing Commission estimated that an additional 8,550 inmates would be eligible for release between this Nov. 1 and Nov. 1, 2016....

The U.S. Sentencing Commission voted unanimously for the reduction last year after holding two public hearings in which members heard testimony from former attorney general Eric H. Holder Jr., federal judges, federal public defenders, state and local law enforcement officials, and sentencing advocates. The panel also received more than 80,000 public comment letters, with the overwhelming majority favoring the change.

Congress did not act to disapprove the change to the sentencing guidelines, so it became effective on Nov. 1, 2014. The commission then gave the Justice Department a year to prepare for the huge release of inmates.

The policy change is referred to as “Drugs Minus Two.” Federal sentencing guidelines rely on a numeric system based on different factors, including the defendant’s criminal history, the type of crime, whether a gun was involved and whether the defendant was a leader in a drug group. The sentencing panel’s change decreased the value attached to most drug-trafficking offenses by two levels, regardless of the type of drug or the amount.

An average of about two years is being shaved off eligible prisoners’ sentences under the change. Although some of the inmates who will be released have served decades, on average they will have served 8 1/2 years instead of 10 1/2 , according to a Justice Department official.

“Even with the Sentencing Commission’s reductions, drug offenders will have served substantial prison sentences,” Deputy Attorney General Sally Yates said. “Moreover, these reductions are not automatic. Under the commission’s directive, federal judges are required to carefully consider public safety in deciding whether to reduce an inmate’s sentence.”

In each case, inmates must petition a judge, who decides whether to grant the sentencing reduction. Judges nationwide are granting about 70 sentence reductions per week, Justice officials said. Some of the inmates already have been sent to halfway houses.

In some cases, federal judges have denied inmates’ requests for early release. For example, U.S. District Judge Royce C. Lamberth recently denied requests from two top associates of Rayful Edmond III, one of the District’s most notorious drug kingpins. Federal prosecutors did not oppose a request by defense lawyers to have the associates, Melvin D. Butler and James Antonio Jones, released early in November.  But last month Lamberth denied the request, which would have cut about two years from each man’s projected 28 1/2 -year sentence....

Critics, including some federal prosecutors, judges and police officials, have raised concerns that allowing so many inmates to be released at the same time could cause crime to increase.

But Justice officials said that about one-third of the inmates who will be released in a few weeks are foreign citizens who will be quickly deported.  They also pointed to a study last year that found that the recidivism rate for offenders who were released early after changes in crack-cocaine sentencing guidelines in 2007 was not significantly different from the rate for offenders who completed their sentences.

October 6, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Thursday, October 01, 2015

Basic elements of Sentencing Reform and Corrections Act of 2015

As I write this, I am watching (at this link) the tail end of speeches being given by a series of US Senators discussing their pleasure and thanks concerning the bipartisan agreement to propose the Sentencing Reform and Corrections Act of 2015 (which I will start calling SRCA 2015).  Here are links to two documents provided by the Senate Judiciary Committee summarizing what appears in this bill:

Here ais the full text of the summary document:

WOWSA!!  And the more detailed section-by-section analysis suggests that lots and lots of badly over-sentenced federal offenders subject to extreme mandatory minimum sentencing provisions in not-so-extreme cases (including folks I have represented or filed amicus briefs on behalf of like Weldon Angelos and Edward Young) might be able to get retroactive relief if this legislation becomes law!!  Thus, to summarize, just the introduction of SRCA 2015 is a huge development, and I strongly believe its provisions can will significantly reshape the federal sentencing and prison system if (and I hope when) it becomes law.

Though I will still need to see the precise text before I will be in a position to really assess all that appears in this bill, these summary documents confirm my hope that this bill was likely to be among the biggest and most ambitious federal sentencing reform efforts we have seen since the enactment of the Sentencing Reform Act more than three decades ago.  Mega-kudos to all involved, Senators and staffers and advocates of all stripes, and now let's see if all the good mojo that this SRCA 2015 represents might get this bill through the Congress in the coming weeks!!

UPDATE The full text of the SRCA runs 141 pages, and the folks at FAMM have it available at this link.

October 1, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22)

Bipartisan federal sentencing reform bill due to emerge from Senate today

In part because October is my favorite month, I am likley to remember that a potentially historic federal sentencing reform bill emerged from behind the Senate negotiating curtain on the first day of October 2015.  This New York Times article, headlined "Senators to Unveil Bipartisan Plan to Ease Sentencing Laws," previews some of what we should expect to see in the bill.  Here are excerpts:

A long-­awaited bipartisan proposal to cut mandatory prison sentences for nonviolent offenders and promote more early release from federal prisons is scheduled to be disclosed Thursday by an influential group of senators who hope to build on backing from conservatives, progressives and the White House.

The comprehensive plan, which has the crucial support of Senator Charles E. Grassley, the Iowa Republican who heads the Judiciary Committee, is the product of intense and difficult negotiations between Republicans and Democrats who hope to reduce the financial and societal costs of mass incarceration that have hit minority communities particularly hard.

The push has benefited from an unusual convergence of interests in an otherwise polarized Washington and has become a singular issue that usually warring groups have rallied around. Progressive advocacy groups have embraced the possibility of less jail time and better preparation for offenders when they are released; conservatives have championed the potential savings in reducing prison populations and spending on the strained criminal justice system.

According to those familiar with the still­-secret agreement, the legislation proposes an extensive set of changes in federal sentencing requirements. Those changes include a reduction in mandatory minimum sentencing to five years from 10 for qualified cases; a reduction in automatic additional penalties for those with prior drug felonies; and more discretion for judges in assessing criminal history.

The legislation would also ban solitary confinement for juveniles in nearly all cases, and allow those sentenced as juveniles to seek a reduction in sentencing after 20 years. Many of the new rules could be applied retroactively to people now serving time.

The authors also took steps to deny any new leniency to those who committed serious violent crimes or drug felonies. And the bill would put some new mandatory minimum sentences in place for those convicted of interstate domestic violence or providing weapons or other material to terrorists or certain countries.

Lawmakers hoping for more sweeping changes did not win the across­theboard reductions in mandatory minimum sentences they had sought when the negotiations began. They compromised to win the backing of Mr. Grassley, who in the past has been critical of broad efforts to reduce prison time.

If the authors wish to push the legislation through this year, it will require an aggressive effort and a decision by Senator Mitch McConnell, Republican of Kentucky and the majority leader, to make the measure a priority. The bill is most likely to be considered by the Judiciary Committee this month, with a committee vote possible on Oct. 22. Congressional consideration could also be kicked into 2016....

Backers of a criminal justice overhaul were not aware of the details of the legislative deal, which senators were trying to keep under wraps until the announcement Thursday, but they welcomed the movement toward getting the debate in the public arena.

“This sounds good to us,” said Mark Holden, general counsel for Koch Industries, which has led conservatives in calling for new sentencing laws and is part of the bipartisan Coalition for Public Safety. “It is a good place to start, and hopefully this will be the impetus that gets things moving.”  Holly Harris, the executive director of the U.S. Justice Action Network, another part of the coalition, noted that “the devil is in the details.”

I share the sentiments that this sounds like a pretty good deal and that the devil is really in the details. But, absent the details looking very ugly, I am going to be a vocal and aggressive advocate for this bill because it seems like the only federal sentencing reform proposal with any realistic chance of getting to President Obama's desk while he is still President Obama.

October 1, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Tuesday, September 29, 2015

Long-awaited bipartisan federal criminal justice reform bill to emerge from Senate this week

A helpful reader alerted me to this notable new NPR story headlined "Bipartisan Criminal-Justice Overhaul Proposal Expected As Soon As Thursday."  Here are the details: 

A bipartisan group of senators on the Judiciary Committee is preparing to unveil a criminal-justice overhaul proposal as early as Thursday, two sources familiar with the deal told NPR.  The plan follows months of behind-the-scenes work by the staffs of Sen. Charles Grassley, the Iowa Republican who chairs the committee, and several other lawmakers representing both political parties.

Senior members of the Obama administration, including the second-in-command at the Justice Department, also have been nudging senators on the sentencing plan, viewing the proposal as one of the capstones of a legacy on criminal-justice issues for this president. Barack Obama famously became the first sitting president to visit a prison in July.

An unusual left-right coalition formed earlier this year to drive action in Congress and in state houses across the country. The Coalition for Public Safety, which includes Koch Industries, the American Civil Liberties Union and others, is said to support the Senate plan, as well, a third source said.

The proposal will not go as far as some reform advocates may like, the sources say. For instance, the plan would create some tough new mandatory minimum sentences, after pressing from Grassley. It stitches together proposals that would allow inmates to earn credits to leave prison early if they complete educational and treatment programs and pose a relatively low risk to public safety along with language that would give judges some more discretion when sentencing non-violent offenders....

Despite the optimism among advocates and lawmakers, it's unclear whether the full Senate has the time to act before the presidential election intensifies. In the House, meanwhile, Reps. Bobby Scott, D-Va., and James Sensenbrenner, R-Wis., are pressing their own legislation, known as the SAFE Justice Act. The two leaders of the House Judiciary Committee, Chairman Bob Goodlatte, R-Va., and John Conyers, D-Mich., are writing their own bills, staff members said.

I am giddy with anticipation to see the specifics of this bill and I am cautiously hopeful that all the time spent working through the details will greatly increase the likelihood that a bill actually makes it through the Senate and perhaps all the way to the desk of Prez Obama.  As I have long said in this space and others, hopeful visions of "the best" possible reform should not stand in the way of any "good" reform that has a real chance of becoming law.  And since just about any reform emerging from a bipartisan deal is likely to have good elements, I am extra hopeful that this news means we getting ever closer to an improvement of existing federal sentencing law and policy.

September 29, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Friday, September 25, 2015

How might House speaker John Boehner's resignation announcement impact prospects for federal sentencing reform?

The question in the title of this post was my first reaction to this remarkable and unexpected news via Politico

Speaker John Boehner, who rose from bartender's son to the most powerful man in Congress, will retire at the end of October, ending a tumultuous five-year tenure atop the House of Representatives.

Boehner, 65, planned to leave Congress at the end of 2014, one of his aides said Friday morning, but returned because of the unexpected defeat of Eric Cantor.

"The Speaker believes putting members through prolonged leadership turmoil would do irreparable damage to the institution," the Boehner aide said. "He is proud of what this majority has accomplished, and his speakership, but for the good of the Republican Conference and the institution, he will resign the Speakership and his seat in Congress, effective October 30."...

Boehner came into power on the power of the 2010 tea party wave, but it was that movement that gave him the most problems. Boehner's tenure will be remembered for his internal political battles, but also his complicated relationship with President Barack Obama. He and Obama tried — but repeatedly failed — to cut a deal on a massive fiscal agreement. But Boehner has had some significant victories, including the free-trade deal that Congress passed this year, and changes to entitlement systems....

Boehner's decision, relayed in a closed Republican meeting Friday morning, will set off one of the most intense leadership scrambles in modern Congressional GOP politics. Second in line is House Majority Leader Kevin McCarthy (R-Calif.), who is widely expected to serve as the next speaker. But there is serious unrest in the House Republican ranks, as a small clutch of conservatives have continuously clashed with more establishment Republican types. But it is unclear if any of these figures can win a leadership election.

Of course, the easy answer to the hard question in the title of this post is "it depends." As regular readers know, the younger, more conservative and libertarian-leaning members of Congress within the GOP have generally been more supportive of federal sentencing reform than older establishment GOP officials. Thus, I think the prospects for federal sentencing reform could grow a bit brighter with new blood in the speaker seat.

Then again, any power struggle for leadership positions in the House is almost sure to take time and attention away from other legislative duties.  And diverted attention likely means any existing and future federal sentencing reform bills will have a hard time getting to and through a full vote in the House (and perhaps also the Senate).

September 25, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Tuesday, September 22, 2015

Former peanut CEO (sort of) gets less than LWOP for salmonella outbreak

As reported in this Reuters article, high-profile federal white-collar sentencings yesterday culminated in a set of severe sentences for executives culpable in a harmful food safety crime.  Here are the details:

The former owner of a peanut company in Georgia was sentenced to 28 years in prison on Monday for his role in a salmonella outbreak that killed nine people and sickened hundreds, a rare instance of jail time in a food contamination case.  

Stewart Parnell, 61, who once oversaw Peanut Corporation of America, and his brother, Michael Parnell, 56, who was a food broker on behalf of the company, were convicted on federal conspiracy charges in September 2014 for knowingly shipping salmonella-tainted peanuts to customers.  Contamination at the company's plant in Blakely, Georgia, led to one of the largest food recalls in U.S. history and forced the company into liquidation.

U.S. District Judge Louis Sands gave Michael Parnell 20 years in prison.  Mary Wilkerson, 41, a former quality control manager at the plant who was found guilty of obstruction, was sentenced to five years in prison.  Stewart Parnell faced life in prison and his brother faced about 24 years.

Before the judge issued the sentences, Stewart Parnell said; “This has been a seven-year nightmare for me and my family. I’m truly, truly sorry for what’s happened.”             

A man whose mother died from eating tainted peanut butter was among those who told a federal judge on Monday that the Parnells should receive stiff prison time.  Jeff Almer, of Brainerd, Minnesota, said his mother, Shirley Almer, was among the nine people killed in the salmonella outbreak linked to the company in 2009.  "My mother died a painful death from salmonella, and the look of horror on her face as she died shall always haunt me," Almer said during the hearing on Monday in Albany, Georgia.  "I just hope they ship you all to jail," Almer said.

During the seven-week trial last year, prosecutors said the Parnell brothers covered up the presence of salmonella in the company's peanut products for years, even creating fake certificates showing the products were uncontaminated despite laboratory results showing otherwise.  The Parnells have said they never knowingly endangered customers, and their supporters asked a judge on Monday to show mercy....

An official with the Centers for Disease Control and Prevention testified at the trial that the company's peanut products sickened 714 people in 46 states, including 166 of whom were hospitalized.

Though not formally an LWOP sentence, the federal prison term here means the main defendant will have to live until well into his mid-80s to make it through his whole sentence even with time off for good behavior (and the brother will need to make it to his mid 70s). Thus, while I believe these are technically below-guideline sentences, they are still quite severe given the defendants' ages.

Prior related posts:

September 22, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Monday, September 21, 2015

Eleventh Circuit panel categorically rejects Johnson vagueness attack on career offender guidelines

In this prior post a few days after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the possibility that Johnson could impact past, present and future sentencings pursuant to the career offender guideline of the US Sentencing Guidelines. 

Since then, I believe that the Department of Justice has consistently conceded Johnson-based constitutional problems with the existing career offender guideline because the key phrase found vague in Johnson is also used in the guideline definition of a career offender.  In addition, as noted in this post from last month, the US Sentencing Commission has proposed amending the career offender guideline to eliminate the Johnson-problematic definition of a crime of violence.   And I believe at least a few appellate rulings have assumed without deciding that Johnson creates problems for existing career offender guideline sentencing.

But today an Eleventh Circuit panel in US v. Matchett, No. 14-10396 (Sept. 21, 2015) (available here), squarely addresses this issue and rules that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  Here is how the Matchett opinion gets started:

This appeal presents an issue of first impression for this Court: whether the vagueness doctrine of the Due Process Clause of the Fifth Amendment applies to the advisory Sentencing Guidelines.  Calvin Matchett pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and now challenges both the denial of his motion to suppress the firearm and the calculation of his sentence.  Police Officer Jesse Smith stopped Matchett when he saw Matchett carrying a flat-screen television in a residential neighborhood on a weekday morning.  After speaking with Matchett, Officer Smith frisked him based on his confrontational demeanor and the risk that he had a burglary tool that could be used as a weapon.  When Officer Smith found a loaded handgun in Matchett’s pocket, Matchett fought with Officer Smith for over three minutes in an attempt to flee.  The district court did not err when it denied Matchett’s motion to suppress.  It also correctly determined that Matchett’s previous convictions for burglary of an unoccupied dwelling were crimes of violence and that Matchett’s resistance created a substantial risk of death or bodily injury in the course of fleeing from a law enforcement officer.  We reject Matchett’s argument that the definition of “crime of violence” in the Sentencing Guidelines is unconstitutionally vague in light of Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015).  The vagueness doctrine applies only to laws that prohibit conduct and fix punishments, not advisory guidelines.  We affirm.

Some prior related posts:

September 21, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

Sunday, September 20, 2015

You be the federal judge: how long a prison term for peanut executives convicted of selling salmonella-tainted food?

In this prior post a few months ago, I highlighted that a peanut company executive convicted of selling salmonella-tainted food was facing an “unprecedented” federal life without parole sentence according to the recommended guideline sentencing range. The sentencing proceeding, as reported in this new AP piece, is slated to go forward this Monday. Here is context for answering the query in the title of this post:

A year after a federal jury convicted him of crimes behind a salmonella outbreak blamed for killing nine people and sickening hundreds more, former peanut executive Stewart Parnell returns to court facing possible imprisonment for the rest of his life.

A sentencing hearing was scheduled for Monday in Albany, Georgia, for the 61-year-old former owner of Peanut Corporation of America. Due in U.S. District Court with Parnell were two co-defendants — his brother and a plant manager — also found guilty in what experts called the first food-poisoning trial of American food processors.

Parnell was convicted Sept. 19, 2014, of knowingly shipping salmonella-tainted peanut butter from his plant in Blakely, Georgia, to Kellogg's and other customers who used it in products from packaged crackers to pet food. The jury also found Parnell and his brother, food broker Michael Parnell, guilty of faking results of lab tests intended to screen for salmonella.

The brothers were charged after a salmonella outbreak that sickened 714 Americans in 46 states was traced to Peanut Corporation's plant in Blakely, Georgia, in early 2009. The Centers for Disease Control and Prevention reported that nine people who ate tainted peanut butter died during the outbreak in 2008 and 2009, though it couldn't say for sure salmonella caused each death.

Federal investigators found a leaky roof, roaches and evidence of rodents, all ingredients for brewing salmonella. They also uncovered emails and records showing food confirmed by lab tests to contain salmonella was shipped to customers anyway. Other batches were never tested at all, but got shipped with fake lab records saying salmonella screenings were negative.

In a court order Friday, Judge W. Louis Sands noted Stewart Parnell faces a possible prison sentence of 9,636 months — which comes to 803 years. The U.S. Probation Office, which prepares pre-sentencing reports to help guide federal judges, recommended the stiff sentence based on the number of illnesses as well as estimates that the outbreak, which triggered one of the largest food recalls in U.S. history, cost Parnell's corporate customers $144 million.

The judge has the authority to impose a lighter sentence. Randy Napier, whose 80-year-old mother in Ohio died from salmonella poisoning after she ate contaminated peanut butter from Parnell's plant, said he plans to testify at the hearing and ask the judge to show little mercy. "We need to send a message to these food manufacturers," said Napier of Durham, North Carolina. "No one else should have to go through what we did, watching my mother die. I'm hoping to have closure. It's been six years of utter hell."

Attorneys in the case say voluminous testimony from victims seeking stiff sentences and defendants' relatives asking for leniency could push the sentencing proceedings into a second day Tuesday.

Parnell's attorneys insist locking him up for life would be too harsh. Even food-safety attorney Bill Marler, who represented many families of victims in the salmonella outbreak, has said life imprisonment would be "unprecedented."...

Michael Parnell, who was convicted on fewer counts than his brother, faces a recommended punishment of 19 to 24 years in prison. Co-defendant Mary Wilkerson, the Georgia plant's quality control manager, faces five years. She was convicted of obstruction of justice.

Three deaths linked to the outbreak occurred in Minnesota, two in Ohio, two in Virginia, one in Idaho and one in North Carolina.

Prior related post:

September 20, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (7)

Thursday, September 17, 2015

Lots of new data from BJS on prisoners and from USSC on federal sentencing

Sentencing and corrections data junkies have the opportunity for heavy dose of notable new data runs from two federal sources.  Both of these recently released reports have a number of interesting and important modern sentencing stories buried inside lots of notable new numbers:

From the Justice Department’s Bureau of Justice Statistics, "Prisoners in 2014"

From the US Sentencing Commission, "FY 2015 Third Quarterly Sentencing Data Report"

Importantly, the BJS prisoners document has data on only prison populations and thus does not include total incarcerated persons in the US because jail populations are not in the statistics.  With that important statistical reality in mind, here are some highlights identified by BJS concerning "Prisoners in 2014" that I found particularly noteworthy:

September 17, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, September 10, 2015

Is Donald Trump's bluster hurting the cause of federal sentencing reform?

The question in the title of this post is prompted by this notable lengthy new TPM piece sent to me by a helpful reader and headlined "How Donald Trump Threatens To Blow Up Bipartisan Criminal Justice Reform." Here are excerpts:    

A long-awaited, hard-fought criminal justice reform push is coming to Washington this fall, with lawmakers of both parties making progress on legislation to curb mass incarceration. But after spending years convincing lawmakers that tackling the issue of mass incarceration would not make America more dangerous or put their political careers in jeopardy, advocates are now watching with growing dread as the GOP primary veers back toward the usual tough on crime rhetoric.

Just a few months ago, reformers were celebrating that most of the 2016 GOP pack had signaled that, at least in theory, they supported retooling America's justice system. But, as has been the case with so many other sensitive issues, the entrance of Donald Trump has changed the dynamic. Now instead of talking about criminal justice reform, the GOP primary contenders are warning of a supposed nationwide crime spike, touting the mandatory-minimums in "Kate’s Law," and lobbing “soft on crime" accusations.

“I’m concerned about the impact on the push for justice reform because we’re expecting a bill at some point this month,” Jason Pye, director of Justice Reform at the conservative FreedomWorks, told TPM. “I’m concerned about the impact of the rhetoric on that.”

Trump may not solely be to blame for the shift in tone. But in interviews with TPM before his entrance in to the race, justice reform advocates expressed cautious optimism that the GOP field had more or less coalesced around curbing mass incarceration, and they believed it was unlikely to become a flashpoint in the primary.

Trump may have conflated the issue, they now contend, by linking illegal immigration and violent crime, thus prompting many of his rivals to take harder lines, too. Coupled with warnings of a summer crime spike, the campaign trail has taken a turn back to the ‘90s, with candidates falling into old patterns of invoking crime fears to rile their constituencies.

“For the most part these candidates aren’t talking about these issues right now, it’s largely focused one person and we know who that person is, for better or for worse,” said Pye of FreedomWorks, the major DC advocacy outfit with Tea Party roots that plays an important role in pushing criminal justice reform from the right....

Last week, Trump released an ad attacking former Gov. Jeb Bush that critics said echoed the notorious Willie Horton ad that Bush's father used against Michael Dukakis in the 1988 presidential race.  The ad flashes the mugshots of undocumented immigrants charged or convicted of murder over Jeb Bush's infamous immigration is an "act of love" comments, and ends with placards saying "Love? Forget Love. It's Time Get Tough!" Bush's spokesperson responded by calling Trump a "soft on crime liberal."

“They look like tweedledum and tweedle dumber in terms of this very retro style of exploiting these old arguments,” liberal justice reform leader Van Jones said in an interview with TPM last week, referring to the Trump and Bush spat.

Meanwhile, conservatives have taken a harsh line on Black Lives Matter, a movement that includes calls for overhauling law enforcement and justice policies. Led by Fox News, conservatives have accused the protest movement, without basis, of inciting violence against police officers.  Trump accused Black Lives Matter this week of "looking for trouble” and suggested they were being "catered to" by Democrats.

The rhetoric has spread beyond Trump, which is of particular concern to criminal justice reform advocates. A few high-profile police deaths have prompted candidates like Sen. Ted Cruz (R-TX) and Wisconsin Gov. Scott Walker (R) to blame the Obama administration for, as Walker put it, “a tendency to use law enforcement as a scapegoat.” New Jersey Gov. Chris Christie (R) has called for the return of stop and frisk, vowed to crack down on marijuana legalization, and blamed “liberal-leaning mayors and cities” and their “lax criminal justice policies” for the stabbing death of a former intern in Washington, D.C.

“There are two things that are troubling,” said Inimai Chettiar, director of Justice at the Brennan Center. “One, that people are saying that there is a crime wave now and they’re implying that crime is going to be going up as a permanent trajectory -- which is wrong -- and that second people are blaming criminal justice policies and particularly policing policies for this.”...

Already, balancing the various concerns of those interest groups was a delicate dance for lawmakers hammering out federal legislation.  But heated campaign claims -- be it about Black Lives Matter, undocumented immigrants or police fatalities -- isn’t helping to smooth over tensions....

Nevertheless, Senate advocates for reform insist legislative progress can be made despite the campaign trail rhetoric. “There’s been heated rhetoric for decades around justice reform,” said Ben Marter, a spokesman for Sen. Dick Durbin (D-IL), who is involved in crafting the anticipated compromise bill.  “But the senators negotiating this legislation have put their partisan differences aside to negotiate a solution in good faith.”

Likewise, advocates are hopeful the most ardent justice reformers in the GOP field will resist relying on such language.  “I would get worried if suddenly other candidates less desperate and flailing than Governor Bush started jumping on that bandwagon,” Jones said.

But the proposal known as Kate’s Law shows how easily legislative progress can be undercut by the kind of the knee-jerk reactions to sensationalized tragedies that contributed to the creation of mass incarceration policies in the first place. The legislation, inspired by Steinle's murder, would impose mandatory sentencing minimums on undocumented immigrants who return to U.S. after being deported and, according to Families Against Mandatory Minimums, would add nearly 60,000 people to the federal prison population.

Trump has made Steinle’s murder a focal point of his campaign (despite the desires of her family), and conservative media have fanned the flames. Cruz -- who has previously touted his interest in criminal justice reform -- has embraced the measure, while other candidates have also expressed support. So far, cooler heads in Congress have prevented Kate’s Law from gaining traction there. “Watching Kate’s Law unfold is like watching history repeat itself,” FAMM government affairs counsel Molly Gill told TPM, comparing it to 1986 drug overdose by college basketball star Len Bias that led to federal mandatory drug sentencing. “We’ve come a long way in the last 30 years in our understand of crime and recidivism and using evidence-based approaches. But a lot of times we’re still legislating like that never happened."

​For years, criminal justice reformers have labored to convince politicians that dismantling ‘80s and ‘90s era crime legislation -- through cutbacks on mandatory minimums or softening of drug laws -- will not making them look “soft on crime.” The best proof they had was the success of a number of state lawmakers -- especially in red states -- in curbing mass incarceration without facing political consequences. They have also had to do this working within a tenuous coalition balancing competing priorities. “With consensus around criminal justice reform from both sides of the aisle that hasn’t been seen for a generation, it would be a shame for presidential candidates to undermine this by exploiting negative imagery and stereotypes for mere political gain,” said Janai Nelson, associate director-counsel of the NAACP Legal Defense and Educational Fund, in a statement to TPM.

September 10, 2015 in Campaign 2016 and sentencing issues, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (8)

Prez Obama makes a new (and a renewed) nomination to the US Sentencing Commission

Late yesterday, as detailed in this official press release, "President Obama nominated Judge Richard Franklin Boulware II and Judge Charles R. Breyer to serve on the United States Sentencing Commission." Hard-core sentencing fans know that Judge Breyer has been serving on the USSC since 2013, so his nomination is really just a reappointment, but Judge Boulware brings new blood to this commission, and here is his bio from the White House Press release:

Judge Richard Franklin Boulware II is a United States District Judge for the District of Nevada, a position he has held since June 2014.  Prior to his appointment to the bench, he worked at the Federal Public Defender’s Office in Las Vegas from 2007 to 2014, where he served as the lead attorney on complex white-collar cases from 2010 to 2014. From 2003 to 2007, he was a trial attorney at the Federal Defenders of New York.  Judge Boulware began his legal career as a law clerk to the Honorable Denise Cote of the United States District Court for the Southern District of New York from 2002 to 2003.  He received his J.D. in 2002 from Columbia Law School and his A.B. cum laude in 1993 from Harvard College.

In addition to being excited that Prez Obama has nominated a new judge and a former federal public defender to serving on the Commission, I am now hoping that Judge Boulware's appointment could mean future USSC conferences might get slated for Las Vegas.

Jokes aside, because the USSC has been short of commissioners during a very busy time for federal sentencing reform, I am glad Prez Obama has finally moved to fill one of the open spots on the Commission. I sincerely hope Judge Boulware secures a speedy confirmation and that Prez Obama soon nominates another commissioner as well.

September 10, 2015 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Tuesday, September 08, 2015

Highlighting headwinds for federal sentencing reform in coming critical period

Over at Crime & Consequences, Bill Otis has this extended new post headlined "The Biggest Obstacles Right Now to Sentencing 'Reform'."  The post provides a five-point account of recent developments enhancing the (always uphill) battle for significant federal sentencing reform, and here is how the post gets started:

From late spring through about the end of July, it was my sense that some kind of fairly significant sentencing "reform" bill was going to make more headway in this Congress than in the last, and conceivably could pass. More members of the majority party had expressed an openness to it than we had seen in the last Congress.

Probably the first sign of trouble was when the sentencing "reform" bill that had been promised before the August recess never showed up. I expect that one (or several) will show up now, but their content and their prospects for passage seem diminished from what they had been just six weeks ago.

As a former DOJ political appointee, Bill Otis has long been much more of an inside-the-Beltway player than I ever will ever be, and I surmise he still has considerable connections with establishment GOP leaders in Congress.  Consequently, his latest prognostications here strike me as important as we all anticipate Senator Charles Grassley unveiling, perhaps as early as today as previewed here, a (big?) new sentencing reform bill that may be the one most likely to have a real chance to get to the President's desk in some form.

Even though Bill's sentencing analysis is sometime subject to sharp criticism (as recently noted here), I think his posts about sentencing reform arguments and prospects alway provide a useful reminder of how many different kinds of political and policy arguments can be made against changing the status-quo of tough-and-tougher sentencing.  Most fundamentally, when crime is in decline, Bill and others will be quick to say we should not risk changing what seems to be working; when crime seems to be spiking, Bill and others will be quick to say we should not risk going soft now.

Some prior related posts:

September 8, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Thursday, September 03, 2015

Julie Stewart of FAMM goes hard after Bill Otis for being "proven wrong time and time again"

Regular readers know I often note and express respect for the work and writings of both former federal prosecutor Bill Otis, who now writes most regularly at Crime & Consequences, and Julie Stewart, who is the President and Founder of Families Against Mandatory Minimums.   Today I must note and express amazement at the concerted efforts of one of these two taking on the other: Julie Stewart has this notable new Reason commentary headlined "The Former Prosecutor Who Consistently Gets Criminal Justice Reform Wrong: Former prosecutor Bill Otis has been mistaken over and over again when advising legislators against reducing drug sentences."  Here are excerpts mostly from the start and end of the piece:

No one expects our elected representatives to be experts in every area of public policy. At the same time, we have every right to expect that our representatives will consult policy analysts and experts who know what they're talking about, not someone who has been proven wrong time and time again. In the world of criminal justice, that someone is former federal prosecutor and Georgetown Law adjunct William Otis.

Over the past two decades, Bill Otis has become the Paul Ehrlich of criminal sentencing reform.  He is always certain in his convictions and nearly always wrong.  Moreover, like Ehrlich, Otis likes to scare the public with predictions of certain and impending doom, and he is immune to feelings of embarrassment or humiliation despite being proven spectacularly wrong over and over again....

[W]hereas Ehrlich saw overpopulation as the culprit, Otis thinks shortening sentences for nonviolent drug offenders will be America's undoing.  Indeed, every time Congress or the U.S. Sentencing Commission has considered even mild sentence reductions over the past two decades, Otis has gone full Chicken Little.  He has been wrong every time....

The nationwide drop in crime and prison crowding should be celebrated.  Less violent crime means fewer murder victims, fewer robbery victims, and fewer assault victims. Smaller prison populations means savings for taxpayers and more money to spend on what actually does reduce crime — community policing and supervision practices like "short, swift, and certain."  None of these gratifying results would have been possible if Otis's theory were correct — or if any lawmakers outside the Beltway had heard of Otis and took his views seriously.  While Otis has been consistently wrong, thankfully lawmakers have ignored him....

Committed to his prison-is-always-the-answer ideology, Otis derided the [Fair Sentencing Act], saying it should be called the "Crack Dealers Relief Act."  When the U.S. Sentencing Commission lowered the crack guideline and made it retroactive in accord with the FSA, Otis predicted it would lead to an increase in crime....  On his blog, Otis cranked up the fear machine. He predicted "misery" when "thousands of crack dealers" would be "put back on the street prematurely" to terrorize their communities.

Fortunately for those of us concerned about public safety, Otis was wrong again — amazingly wrong.  Since passage of the FSA, the crime rate, the prison population, and crack usage are all down!  It bears repeating.  Otis said the changes would cause "misery" and "inevitably lead to more crime."  Instead, while thousands of offenders have received fairer sentences, the crime rate has fallen, crack use is down, and taxpayers have saved millions from being wasted on unnecessary prison costs....

Otis is impervious to facts and evidence.  He will quote Professor Steven Levitt's finding that greater reliance on incarceration helped reduce crime in the 1990s and then ignore Levitt's later conclusion that the country has gone too far and that prisons should reduce their populations by one-third.  Otis will say, as he does in National Review, that the movement for sentencing reform "is strictly interest-group — and billionaire — driven, inside-the-Beltway," which would be fine if you did not already know that the reform movement began in the states and is being promoted in Washington, DC by insiders like Senators Ted Cruz (R-Tx.), Rand Paul (R-Ky.), and Mike Lee (R-Utah).

Otis's amazing record of wrongness would be interesting and perhaps even funny if he, like fellow fear-peddler Paul Ehrlich, were exiled from the world of rational public policy making.  But media reports have suggested that some members of Congress actually listen to Otis.  If that's true, then we really do have a good reason to be scared.

Yowsa.   Because I consider both Julie Stewart and Bill Otis to be personal friends, I am going to be trying hard to stay out of this sentencing sparring.  But I am also going to try to report fairly on any rounds of this fight, and thus will be quick to post any response that Bill Otis provides in his own defense in the days ahead. 

UPDATE:  Bill Otis has a response up at Crime & Consequences: Are Sentencing "Reformers" Getting Worried?.  Here is a snippet from Bill's introduction to his brief substantive refutation of points made by Julie Stewart:

I think it unbecoming and unwise to get caught up in this sort of thing.  If you hold a controversial position, you can expect some heat.  And if you spend all your time answering your critics, you'll never do anything else.  You'll certainly abandon any hope of making your own points. Accordingly, with the exceptions noted below, I am not going to engage with Ms. Stewart. (If she seeks a live debate with me, that would be another matter).

I'm quite sure she is sincere. But, for reasons stated in hundreds of things I have said on this blog and elsewhere, I believe she is in error.

September 3, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, National and State Crime Data, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22)

Tuesday, September 01, 2015

Previewing the latest (and most important) bipartisan federal statutory sentencing reform effort in Congress

ImagesAs regular readers know, September is the month that a (long-forecast) important new federal sentencing reform bill has become likely to emerge from the US Senate.  This new Daily Signal article, headlined "Bipartisan Group of Senators Set to Announce Deal to Reduce Prison Population," which reports that this bill is going to be unveiled a week from today, provides an account of what we can expect to see in this bill.  Here are excerpts:

Soon after lawmakers return to Washington, D.C., on Sept. 8, a bipartisan group of members on the Senate Judiciary Committee is expected to announce a deal meant to relieve the overcrowded federal prison population.

The bill, which is still being written and near completion — according to Beth Levine, a spokeswoman for Judiciary Committee Chairman Chuck Grassley — would give judges more discretion in sentencing offenders of certain nonviolent drug crimes and let well-behaved inmates earn time off their prison terms.

“They want to announce a deal as soon as they get back, but they just aren’t quite there yet,” says Conn Carroll, the communications director for Sen. Mike Lee, a committee member and leading reform advocate. “Let’s just say it’s first and goal on the one, everyone thinks we’ll score, we just don’t know when,” Carroll continued.

The legislation, the result of months of negotiations, will likely incorporate policies from previously introduced legislation in both houses of Congress.

The judiciary committee’s compromise bill is not expected to include reductions to mandatory minimums that are blamed for mass incarceration. Mandatory minimums require binding prison terms of a particular length and prevent judges from using their discretion to apply punishment. But the legislation is expected to give judges some leeway in sentencing drug offenders....

A new Pew study, using data from the Federal Bureau of Prisons, reveals that there are more than 207,000 inmates in federal prisons, and 95,000 of those inmates are incarcerated for drug-related offenses — up from fewer than 5,000 in 1980.

The jump in the number of inmates has cost a lot of money. From 1980 to 2013, federal prison spending increased 595 percent, from $970 million to more than $6.7 billion. According to the study, prison spending now represents one of every four dollars spent by the U.S. Justice Department. The report says growth of the prison population, and the longer drug sentences, can be pinned on a tough-on-crime mentality that dominated the 1980s.

Reform advocates say these policies — such as laws passed by Congress enacting mandatory minimum sentences of five, 10, or 20 years for drug offenders, and abolishing parole for federal offenders — have outlived their usefulness and need to be revised.

“The question really boils down to, has Sen. Grassley come to recognize mandatory minimums are a policy failure?” says Alison Holcomb, the director of the ACLU’s Campaign for Smart Justice. “Whether the bill is worth all the time and effort of the negotiations depends on a large part to the answer to that question.”

Grassley, as the judiciary committee chair, is the gatekeeper of the talks. Experts such as Holcomb say Grassley is opposed to across-the-board repeal of mandatory minimum sentences. “The real question of this bill is, how far can Grassley go?” says Molly Gill, the government affairs counsel for Families Against Mandatory Minimums, a nonprofit. “There’s a lot of pressure to do something significant. Is Grassley’s definition of significant close to everyone else’s? There becomes a certain point where you ask, is this real reform?”

Though Grassley’s office won’t share the exact details, the bill is expected to address a “safety valve” law that’s supposed to keep people from receiving unfair sentences.

Under the law, a federal drug offender can avoid a mandatory minimum sentence if he passes a five-part “safety valve” test. A convicted felon can be sentenced below a mandatory minimum if he was not a drug leader or “king pin,” he did not use or possess a gun during the offense, the offense is nonviolent, he was truthful with the government, and he has little or no other criminal activity on his record.

Reform advocates argue that even the most minor criminal history, such as being convicted for possessing a small amount of marijuana as a juvenile, can make an offender ineligible for the safety valve exception. The Senate Judiciary Committee bill may make the criminal record aspect of the safety valve more forgiving. It may also create a new loophole to get around mandatory minimums.

In addition, the legislation will include elements of a separate bill, the Corrections Act, authored by two senators of the judiciary committee: John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I.

That bill would allow certain well-behaved prisoners to earn time off their sentences by participating in recidivism reduction programs such as drug counseling and vocational training. The judiciary committee bill won’t be as comprehensive as the House’s SAFE Justice Act, sponsored by Reps. Jim Sensenbrenner, R-Wis., and Bobby Scott, D-Va., which would narrow the range of offenders that mandatory minimums apply to. Some members, like Grassley, think that reform plan is too far-reaching.

“Although there is clearly bipartisan support for a number of these proposals, [this] is a difficult issue,” says John Malcolm, the director of The Heritage Foundation’s Meese Center for Legal and Judicial Studies. “Some believe our current sentencing regime is unfair and the pendulum has swung too far in terms of imposing harsh sentences,” Malcolm continued. “Others believe increased incarceration and harsh sentences have taken some very dangerous people off of the streets. I remain cautiously optimistic there is some ‘sweet spot’ where both sides can compromise.”

Whatever the final product looks like, all sides are optimistic that Congress will give Obama a criminal justice reform bill to sign this year — because too many people are waiting. “The American criminal justice system has gotten has so far out of whack, with far too many people behind bars for too high a price,” Holcomb said. “The cold hard fact that people across the aisle can agree on is that America is better than this.”

I am pleased that some key details of the sentencing reform bill most likely to get to Prez Obama's desk are emerging, and I am not surprised that Senator Grassley is more interested in pursuing expanded exceptions to current federal mandatory minimums rather than across the board cuts to any current mandatory minimum. At the same time, I am concerned (but again not suprised) that advocates of federal sentencing reform are worried that this latest bill which has Senator Grassley's blessing is not going to be as far-reaching or impactful as other bills that have been making the rounds.

As a general matter, I favor a federal sentencing world without any crude and strict mandatory minimums terms for any non-violent crimes. But, especially now that we have had two-plus years of talk about statutory sentencing reform and nothing at all that has made it through Congress, I am hopeful all reform advocates will get on-board with whatever comes out of the Senate later this month. Especially with growing talk about violent crime increases in some cities and with sound-bite presidential campaigns now dominating the broader political conversation, I think the window for any meaningful federal sentencing reforms emerging from Congress is already starting to close. If visions of the "best" or even the "really good" prompt criticisms of any bill that has a real chance of passage, we could well end up with no bill making it through Congress at all.

Some prior related posts:

September 1, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Saturday, August 29, 2015

"Federal Drug Sentencing Laws Bring High Cost, Low Return"

The title of this post is the title of this notable new Pew Public Safety Performance Project Issue Brief, which gets started this way:

More than 95,000 federal prisoners are serving time for drug-related offenses—up from fewer than 5,000 in 1980. Changes in drug crime patterns and law enforcement practices played a role in this growth, but federal sentencing laws enacted during the 1980s and 1990s also have required more drug offenders to go to prison— and stay there much longer—than three decades ago. These policies have contributed to ballooning costs: The federal prison system now consumes more than $6.7 billion a year, or roughly 1 in 4 dollars spent by the U.S. Justice Department.

Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.

August 29, 2015 in Data on sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, August 28, 2015

Arkansas political corruption case showcases corruptness of federal sentencing guidelines

This local reporting from Arkansas, headlined "Martha Shoffner gets 30 months in bribery case," details today's federal sentencing of a significant political figure in the Natural State. Here are the basics, with some commentary to follow:

Judge Leon Holmes has sentenced former Arkansas Treasurer Martha Shoffner to 30 months in prison for taking bribes for state bond business. It will be followed by some supervised release. No fine was assessed.  The 71-year-old will have to report to a Fort Worth prison in 60 days.

She faced as much as 15 years in prison under federal sentencing guidelines.  Her attorney had asked for 12 to 18 months, with half that in home detention.  U.S. Attorney Chris Thyer, who'd asked for 60 months, said he was satisfied with the outcome....

Judge Leon Holmes said Shoffner had netted little — he ordered restitution of $31,000 she'd kept in bribes — but as a public official should do prison time....

Shoffner's attorney argued that the only loss was $36,000 in bribes, not the value of the bond business of $1.7 million. Holmes held there were multiple payments for multiple actions and the $36,000, paid in six installments, didn't amount to a single payment, which also means a potential enhancement of the sentence. He said [bribe giver Steele] Stephens benefited from the bribes to the tune of $900,000 the amount by which his $1.7 million in commissions exceeded the next biggest bond dealer who did business with Shoffner.

[Defense attorney Chuck] Banks asked the court to show mercy on Shoffner, saying she "made a terrible, terrible error in judgment" and characterizing her as "gullible" and "clueless." He said that she was inclined to accept the bribes from Stephens in large part because she was in a bad financial situation, having underestimated the cost of commuting on a regular basis between Newport and Little Rock.

Banks asked Holmes to consider Shoffner's "good deeds," including her work for the Humane Society. He presented the court with a picture of her dog, Fred, and said he was moved by the fact that after Shoffner was first arrested, she asked Banks to call her sister to check on Fred. He called two character witnesses to the stand to testify on her behalf.

He also said that in her capacity as treasurer, Shoffner's books consistently balanced and audits found no problems in the accounts of the office itself. "She was in all honesty doing a pretty dadgum good job," Banks said. "I'm proud to be standing with this poor woman here at this dark hour ... she really is gullible. She really is naive."...

Banks said Shoffner has experienced the most public vilification that he has ever seen in his career as an attorney.  He compared her haggard appearance today with a picture of her being sworn in a few years ago, to show the physical toll her ordeal has taken.  He said she was now "disgraced," "broke" and "ostracized" and noted that she drove to the courthose in a 2003 Oldsmobile this morning.

He also pointed out that Steele Stephens received complete immunity from prosecution for his cooperation with the FBI.  Stephens got a $25,000 fine and lost his brokers license, and "that's it," Banks said.

The attorney argued that sentencing Shoffner to a long period in jail would not serve the public interest, and urged Holmes to give her only as much punishment needed "to repair people's confidence in the office."  She might not live out a harsh sentence, he said.

Especially because to this day I remain grumpy Bill Clinton never got prosecuted for his crimes while in office, I tend not to be eager to argue for mercy for lawbreaking politicians. But, if I read the facts here right, it seems the bribe-giver netted nearly $1 million dollars in benefits and gets only a small fine for his misdeeds because of his FBI cooperation while the bribe-taker is headed off the prison for a couple years even though she has already been disgraced and likely never posed any real risk to public safety.

That all said, I do not find either the 30-month sentence imposed by the federal judge or even the 5-year sentence recommended by the federal prosecutor too troublesome. What offends me is a guideline structure that would recommend a 15-year(!) prison sentence for a 71-year-old, first-time offender who poses no risk to public safety. That guideline recommendation strikes me as crazy on these facts, and it is reassuring that the prosecutor here had the good sense to only urge a sentence only 1/3 as long as the guidelines recommend and that the judge imposed a sentence only half as long as the prosecutor requested. And it is cases like this that still lead me to consider circuit courts misguided in the post-Booker jurisprudence to embrace any kind of presumption of reasonableness for within-guideline sentences.

August 28, 2015 in Federal Sentencing Guidelines, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (3)

Despite copious reform talk, big and tough federal drug sentencing system churns on

ChartAs regular readers know, talk of federal sentencing reform, especially drug sentencing reform, has been all the rage in recent years.  And yet, as this new report from the US Sentencing Commission details, in the last fiscal year, the federal criminal justice system still sentenced tens of thousands of drug offenders to hundreds of thousands of years of federal imprisonment.

The new report, titled excitingly "Overview of Federal Criminal Cases, Fiscal Year 2014," actually reports a decline in the overall number of federal criminal case sentences in the last fiscal year.  But this overall decline was driven mostly by a significant decline in immigration cases.  Here are some snippets from the report which highlight some of modern federal sentencing trends:

The number of individual offenders sentenced each year grew steadily after the Commission began reporting sentencing data in 1988, reaching a high of 86,201 individual offenders sentenced in fiscal year 2011.  Since then the number of cases has decreased each year.  In fiscal year 2014, the number of individual offender cases reported to the Commission fell by 4,199 (5.2%) cases from the previous year to 75,836.  Since fiscal year 2011, the number of these cases has declined by 12.0 percent....

Drug cases have traditionally been the most common federal cases.  However, beginning in fiscal year 2009, the number of immigration cases steadily increased, reaching a high of 29,717 such cases in fiscal year 2011.  That year immigration cases were the most common offense in the federal system....  In fiscal year 2014, 24,011 drug cases were reported to the Commission, accounting for 31.7 percent of all cases. Most of these cases involved drug trafficking offenses.  That year there were 22,238 immigration cases, accounting for 29.3 percent of the total federal caseload that year....

Several factors affect the average prison sentence for drug offenders, including statutory mandatory minimum punishments, the quantity of the drugs involved in the case, the prior criminal history of the offender, and whether the offender assisted the government in the investigation of his or her crime and other crimes.

For more than 20 years, crack cocaine offenders have been the most severely punished, however the length of imprisonment imposed in these cases has decreased steadily since 2007.  In fiscal year 2014, the average imprisonment for drug crimes involving crack cocaine was 93 months of imprisonment (with a median sentence of 72 months).  This compares to a high of 129 for these offenders in fiscal year 2007.  Methamphetamine offenders are the next most severely punished drug crimes, with an average length of imprisonment of 88 months (and a median sentence of 70 months).  Marijuana offenders have the lowest average imprisonment at 36 months (with a median sentence of 24 months)....

Mandatory minimum penalties enacted by Congress play a large part in determining the sentence for drug offenders, either outright or through the impact of these statutes on the structure of the guidelines.  In fiscal year 2014, half of all drug offenders were convicted of an offense carrying a mandatory minimum penalty, however, this proportion was the lowest it has been since the Commission began reporting data about mandatory minimum penalty application in 1993.  The portion of drug cases carrying a mandatory minimum penalty in fiscal year 2013 was 62.1 percent.  This significant reduction was due, in large part, to a change in the policy of the Department of Justice as to how to charge drug cases.

In fiscal year 2014, powder cocaine offenders and methamphetamine offenders were convicted of an offense that provided for the imposition of a mandatory minimum sentence at the highest rates — 65.4 percent in powder cocaine cases and 61.8 percent in methamphetamine cases.  Mandatory minimum penalties were least common in drug cases involving “other” drugs (mostly prescription drugs) and marijuana, accounting for 4.3 percent and 33.2 percent, respectively, of those cases.

These data highlight that DOJ's new charging policies have a measurable impact of the operation of the federal sentencing system. But that change did not dramatically alter the modern annual pattern of more than 125,000 cumulative years of future federal prison time being imposed on all federal drug defendants. All those years, at a conservative average taxpayer cost of $30,000 per year, means just federal drug sentencing in 2014 served to commit nearly $4,000,000,000 in future federal taxpayer funds to incarcerating those drug defendants sentenced over the last USSC fiscal year.

August 28, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Friday, August 21, 2015

"Who Built Prison America? Not Ted Kennedy"

Regular readers may recall a couple posts earlier this year (here and here) noting a fascinating book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America.  Interestingly, Ron Weich, a prominent former staffer for Senator Ted Kennedy has this new commentary at The Crime Report (with the same headline of this post) asserting it is wrong to lay blame on Senator Kennedy for modern mass incarceration.  Here are excerpts:

One of Kennedy’s most far-reaching bipartisan accomplishments was the Sentencing Reform Act of 1984.  Yet this law serves as Exhibit A for Professor Murakawa’s theory that liberals bear responsibility for the failed criminal justice policies of that era.  She blames the sentencing guideline system established by the Act for contributing to mass incarceration and accuses Sen. Kennedy of advancing unduly punitive policies....

Murakawa has harsh words for all who supported the 1984 Act, but she singles out Kennedy for special criticism.  She decries the fact that the man she calls “the liberal lion of the Senate” included in the law various “carceral” elements such as the abolition of parole and a reduction in the availability of good-time credits for prisoners.  She tracks changes in the sentencing bills Kennedy introduced from 1977 to 1984 and argues that his bills became increasingly punitive.  She regards Kennedy as a “hard test case for my claim that Democrats aided, abetted, and legitimized a punitive law and order regime.”

The first flaw in the Murakawa book is its subtitle: How Liberals Built Prison America. No fair observer of criminal justice policy could conclude that liberals -- or conservatives or Democrats or Republicans -- bear sole responsibility for the spike in incarceration over the past half century. Rather, these disastrous criminal justice policies were a bipartisan misadventure that reflected the nation’s anger and fear about crime.

Every crime bill enacted by Congress in the 1980s and 1990s passed with broad bipartisan majorities and the support of leaders from both political parties.  Only a handful of liberal House Democrats sometimes voiced concern.  The Senate often passed crime bills by unanimous consent.

It is certainly fair to criticize Kennedy and other liberals for supporting bad crime bills. But they did not build “Prison America” by themselves, as the subtitle of Murakawa’s book unfairly suggests.

Murakawa’s narrative also fails to appreciate the complex collaborative nature of the legislative process.  She attributes to Kennedy personally the flaws she perceives in his bills. Yes, he was a lead sponsor of the Sentencing Reform Act, but he did not write the law in a vacuum.  The bill’s text is the product of years of negotiations with [Strom] Thurmond and many other members of the Senate, as well as committee markups and floor debates.

Murakawa acknowledges, but does not emphasize, the huge influence of the Justice Department in shaping the final law.  It is no surprise that a bill first introduced during President Jimmy Carter’s administration became more conservative by the time it was signed into law by President Ronald Reagan.

Too often, Murakawa conflates the role of the guideline system and mandatory minimum sentencing laws in contributing to overincarceration.  Many of the most draconian mandatory minimums for drug and gun crimes were enacted in 1986, after the passage of the Sentencing Reform Act of 1984 but before the guidelines took effect in 1987.  Kennedy recognized that mandatory minimums were unjustified once the guideline system had been established.  He repeatedly argued that guidelines are a reasonable mechanism to restrain judicial discretion, whereas mandatory minimums are blunt and unyielding.

Throughout the 1990s Kennedy fought against mandatory minimum sentencing proposals, as I detailed in my article “The Battle Against Mandatory Minimums: A Report from the Front Lines.”

He championed the safety-valve provision (18 USC 3553(f)) in the 1994 crime bill, which allows certain low-level, nonviolent offenders to be sentenced below applicable mandatory minimums.  In fact, in his 1994 reelection race against Mitt Romney, Kennedy faced brutal ads claiming he was soft on crime because he had opposed mandatory sentencing.

Kennedy and other liberals can be faulted for voting in favor of the 1986 crime bill and other bills which contained mandatory minimums, but they did not lead the charge for those policies as Kennedy had for a guideline system.  In fact, Sen. Kennedy was a leader in opposing mandatory minimums once their effect became clear and their inconsistency with the guideline system became apparent.

More generally, Kennedy was a voice for more rational criminal justice policies.  He always opposed capital punishment and, as Prof. Murakawa notes, led the unsuccessful fight to pass the Racial Justice Act which would have allowed capital defendants to challenge their sentences using statistical evidence of racial bias....

Professor Murakawa has written a thoughtful, comprehensive academic study of federal sentencing policies. A book like hers provides an important service, but it cannot be expected to take account of the rough-and-tumble aspects of the legislative arena.  During his long political career, Sen. Kennedy endured criticism that was a lot harsher and less fair than that contained in Murakawa’s book.

As someone who has been involved in criminal justice policy for many years, both before and after I worked for Sen. Kennedy, I share Murakawa’s concern about America’s overreliance on incarceration.  I also applaud the current trend toward more sensible sentencing policies.

I have no doubt that if Sen. Kennedy were alive today, he would be leading the charge for criminal justice reforms.  And he would be doing so in a bipartisan manner, working with Sens. Rand Paul, Mike Lee and other unlikely bedfellows.  That was his way.

Prior related posts:

August 21, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Monday, August 17, 2015

"Does the Calculation Matter? The Federal Sentencing Guidelines and the Doctrine of Alternate Variance Sentences"

The title of this post is the title of this notable federal sentencing paper available via SSRN authored by James Harlow. Here is the abstract:

The Federal Sentencing Guidelines play a central role in the sentencing of federal criminal defendants.  A decade ago, in United States v. Booker, the Supreme Court undercut the original purpose for the Guidelines — to bring binding structure to a previously discretionary sentencing scheme — by declaring that the Guidelines were advisory only.

Even though advisory, the Guidelines remain at the procedural heart of the sentencing process and provide “the framework for sentencing.”  All sentencing proceedings in the district court begin with the proper calculation of the advisory Guidelines range. Similarly, on review, the courts of appeals initially determine whether the sentencing process was free of procedural errors, including whether the advisory Guidelines range was correctly calculated.

However, the Guidelines are no longer the beginning and end of a sentencing hearing. A defendant’s advisory Guidelines range is but one of several important factors enumerated in 18 U.S.C. § 3553(a) that a sentencing court must consider.  In a case when other, non-Guidelines considerations clearly steered the sentencing court’s discretion, should it matter whether the advisory Guidelines range was correctly calculated in the first place?

This Article examines the Fourth Circuit’s emergent and evolving doctrine of alternate variance sentences.  Under this doctrine, a sentence will not be vacated even if the sentencing court may have erred when calculating the advisory Guidelines range.  If it is clear from the record that an advisory Guidelines issue did not influence the ultimate sentence, the appellate panel will assume any Guidelines errors are harmless and proceed to evaluate whether the sentence is substantively reasonable.  The doctrine's increasingly frequent application has a significant impact on all actors in the federal criminal sentencing process — prosecutors, defense counsel, defendants, and judges. Moreover, the doctrine implicates important debates about the meaning and effect of the Guidelines after Booker, the distribution of power between district and appellate judges in sentencing, and judicial efficiency.

August 17, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (0)

Monday, August 10, 2015

Could USSC's proposed amendment dealing with SCOTUS Johnson ruling be made retroactive (and how many federal prisioners could then get reduced sentences)?

Readers know that I have been making much of the potential practical impact of the Supreme Court's big ruling in Johnson v. United States, 135 S. Ct. 2551 (June 26, 2015) (available here).  Johnson declared that that a key clause defining violent offenses in the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."   I have made much of the Johnson ruling's potental impact in part because its holding is inevitably going to echo for quite some time — in some ways predictable and in some ways unpredictable — through other important parts of federal sentencing law.

Perhaps the biggest early post-Johnson federal sentencing echo emerged late last week when, as reported in this US Sentencing Commission news release, the USSC put forth "proposed changes to the existing guideline definitions of a 'crime of violence' [which are] primarily intended to make the guideline consistent with the Supreme Court’s recent decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015)."   This recent post provides the basic details of what the USSC is proposing, and all the official details appear in this USSC document.  

I am still working through the potential import and impact of what the USSC is proposing, and the USSC itself stresses that its proposed guideline amendment is not just preliminary.  But, as the question in the title of this post suggests, the import and impact of what the USSC is proposing would be that much bigger and that much more consequential if any USSC post-Johnson amendments were to be made fully retroactive by the Commission to all federal prisoners currently serving long guideline-career-offender-based sentences.

As hard-core federal sentencing practitioners know, sorting through whether, how and for whom guidelines amendments are made retroactive can be a tough slog both legally and practically.  But because many current prisoners potentially impacted any post-Johnson guideline amendments may already be able to bring Johnson-based constitutional challenges to their existing sentences, it might actually prove more efficient and effective for all actors in the federal sentencing system for the USSC to make any of its post-Johnson guideline amendments fully retroactive — rather than to have everyone in the system await court rulings (and inevitable circuit splits?) on just what Johnson means for prisoners now serving long prison sentences based on the existing (constitutionally suspect) guideline definitions of "crime of violence."

Some prior posts on Johnson and its possible impact:

August 10, 2015 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

Friday, August 07, 2015

US Sentencing Commission proposes guidelines amendments to deal with SCOTUS Johnson ruling

I just finished watching on-line the brief public meeting today of the US Sentencing Commission, and the efficient event tracked closely this on-line notice/agenda.  Ever the efficient agency, within minutes of the conclusion of the meeting, the USSC got up on its website this news release reporting on the Commission's significant actions today:

The United States Sentencing Commission voted today to seek comment on proposed changes to the existing guideline definitions of a “crime of violence.” The proposed changes are primarily intended to make the guideline consistent with the Supreme Court’s recent decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015).

In Johnson, the Supreme Court struck down as unconstitutionally vague a portion of the statutory definition of “violent felony” used in a similar penalty provision in the Armed Career Criminal Act (ACCA). While the Supreme Court in Johnson did not consider or address sentencing guidelines, the statutory language the Court found unconstitutionally vague, often referred to as the “residual clause,” is identical to language contained in the “career offender” sentencing guideline, and other guidelines which enhance sentences based on prior convictions for a crime of violence.

Consistent with Johnson, the proposal would eliminate from the guideline definition of “crime of violence” the residual clause, which provides that a “crime of violence” includes a felony offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another. In addition, the proposal would provide definitions for several enumerated crimes of violence.

“We already see litigation over the impact of Johnson on the sentencing guidelines,” said Judge Patti B. Saris, Chair of the Commission. “In light of uncertainty resulting from the Johnson decision, we feel that it is prudent to begin considering whether, as a matter of policy, the guidelines should also eliminate the residual clause. We want to begin the process of seeking public comment so that the Commission could vote on a guideline amendment as early as possible, perhaps as soon as January 2016. However, this proposal is only preliminary and we look forward to public comment furthering informing us on this complex topic. We also intend to continue to study recidivist enhancements including those based on prior drug convictions in the guidelines throughout the upcoming amendment cycle.”

The Commission also unanimously approved its list of priorities for the coming year. Among its top priorities again is continuing to work with Congress to reduce the severity and scope of certain mandatory minimum penalties and to consider expanding the “safety valve” statute that exempts certain low-level non-violent offenders from mandatory minimum penalties.

“The Commission has taken some steps on its own to reduce federal drug sentences and relieve some of the overpopulation in the federal prisons, but only Congress can make the more fundamental changes needed to address the severity and disparity problems associated with certain mandatory minimum penalties,” said Judge Saris. “We look forward to continuing to work with Congress on this vital issue.”

The Commission will continue to work on several multi-year projects, including an examination of the overall structure of the advisory guideline system, a comprehensive recidivism study, and a review of federal practices relating to the imposition and violations of conditions of probation and supervised release and immigration.

Here are the two key documents released by the Commission on its website today that reflect and detail the summary provided by the press release:

August 7, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Monday, August 03, 2015

US Sentencing Commission releases big report on 5-year impact of Fair Sentencing Act

2015_RtC_FSAAs reported in this official USSC news release, today "the United States Sentencing Commission submitted to Congress its report assessing the impact of the Fair Sentencing Act of 2010, which among other things reduced the statutory 100-to-1 drug quantity ratio of crack to powder cocaine." Here are highlights of an encouraging report via the news release:

Chief Judge Patti B. Saris, Chair of the Commission, said: “We found that the Fair Sentencing Act reduced the disparity between crack and powder cocaine sentences, substantially reduced the federal prison population, and resulted in fewer federal prosecutions for crack cocaine. All this occurred while crack cocaine use continued to decline.”

To assess the impact of the FSA, the Commission analyzed external data sources and undertook statistical analyses of its own federal sentencing data spanning before and after the enactment of the FSA. Among other things, the study shows that:

• Many fewer crack cocaine offenders have been prosecuted annually since the FSA, although the number is still substantial;

• Crack cocaine offenders prosecuted after the FSA are, on average, about as serious as those prosecuted before the FSA;

• Rates of crack cocaine offenders cooperating with law enforcement have not changed despite the reduction in penalties; and,

• Average crack cocaine sentences are lower, and are now closer to average powder cocaine sentences.

The full report, which runs almost 100 pages including all its materials is available at this link. The USSC's website now has this terrific page with various report-related materials and links for easy consumption of all the data in the report.

August 3, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Friday, July 31, 2015

ABA Journal spotlights continued child porn federal sentencing challenges

This article in the August 2015 issue of the ABA Journal, headlined "Minors Sentence: Courts are giving reduced terms to many child-porn defendants," provides an review of the enduring difficulties federal courts face when sentencing certain offenders convicted of using new technologies to download illegal dirty pictures.  Here is an excerpt:

Courts’ reaction to child pornography sentencing is part of a pushback against sentencing guidelines after U.S. v. Booker and U.S. v. Kimbrough, two Supreme Court opinions filed in 2005 and 2007 that found the federal sentencing guidelines advisory, not mandatory. As a result, courts have undercut child pornography sentencing guidelines when the images are taken from P2P programs.

According to one study cited in a 2012 U.S. Sentencing Commission report, 85.3 percent of child pornography distribution convictions in the first quarter of fiscal year 2012 involved P2P programs. Of offenders who used the programs, 55.6 percent distributed images solely with an open P2P program.

The study also found that the rate of known sexual recidivism for nonproduction offenders was 7.4 percent. The agency suggested that Congress revise the nonproduction child pornography sentencing scheme, because crimes stemming from downloads involve less culpability.

If prosecutors think that a child pornography defendant’s mental health contributed to the crime, and that the individual is sincere about rehabilitation and is not a child predator, they will agree to diminished incarceration plea agreements, says Raymond Cassar, a Farmington Hills, Michigan, defense lawyer....

One such case involved Nicholas Dubin, who has Asperger’s syndrome. According to a government sentencing memo, the FBI logged on to a P2P network in 2010 and identified 12 files on Dubin’s computer. More than half contained child pornography. The government obtained a search warrant for his home and found “several hundred to 1,000 images” of child pornography on his computer....

At the time of his arrest Dubin was the dean of students at a high school. In 2013, he pleaded guilty to one count of child pornography possession, and his sentencing range under the guidelines was between 97 and 120 months. The government, however, agreed to sentence Dubin to one day in federal custody, with credit for time served, and five years of supervised release. A 2013 sentencing memo submitted by the Eastern District of Michigan’s U.S. attorney’s office notes that people with autism spectrum disorders often have limited intimate relationships. The document also asserts that Dubin, who had no prior criminal record, was remorseful about his actions and had focused his therapy to understand why his crime was harmful.

“A sentence of one day time served does not, in any way, adequately reflect the seriousness associated with the possession of child pornography,” the government wrote. “However, in this exceptional case, a noncustodial sentence will effectively promote respect for the law and provide just punishment.”

To some, child pornography offenders may not seem as dangerous anymore, because their profile has changed, says Melissa Hamilton.  A visiting criminal law scholar at the University of Houston Law Center, her research focuses on violence, sex crimes and sentencing. “Going to a physical location and buying child pornography off the shelf or sending away money to get it by mail,” she says, involves more culpability than searching for it online.  The sentencing guidelines, she adds, were written before the uptick in prosecutions involving child pornography from P2P programs, and it’s unlikely that they’ll change in the near future.

“It’s a political hot potato to say that people who view child pornography aren’t that dangerous,” Hamilton says. “I have noticed some instances where very senior judges, who are reflecting [on the defendants they sentence] sometimes write long opinions saying that the child pornography downloaders don’t look as scary and risky, in terms of other violent offenders before them.”

July 31, 2015 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (8)

Executive facing "unprecedented" LWOP sentence for food-poisoned peanut butter

Download (8)I just came across this AP story from last week reporting on a notable sentence being urged by federal guidelines in a notable white-collar case.  Here are the details:

Federal court officers have recommended a sentence of life in prison for a peanut company executive convicted of selling salmonella-tainted food, a move that attorneys on both sides called “unprecedented” for a food-poisoning case. The potential life sentence for former Peanut Corporation of America owner Stewart Parnell was disclosed by prosecutors in a court filing Wednesday. Parnell, 61, is scheduled to be sentenced Sept. 21 by a federal judge in Albany, Georgia....

Stewart Parnell ran the now-defunct company from his Bedford County home, just outside Lynchburg city limits.  Parnell's defense attorneys confirmed the recommendation Thursday to The Associated Press, calling the possible punishment “unprecedented.”  Bill Marler, a lawyer for victims sickened by peanut butter from Parnell's southwest Georgia plant, used the same word.

In fact, Marler and other experts say the trial of Parnell and two co-defendants last year was the first federal food-poisoning case to be tried by an American court.  A jury convicted Parnell of 71 counts including conspiracy, obstruction of justice, wire fraud and other crimes related to a salmonella outbreak in 2008 and 2009.  The Centers for Disease Control linked the outbreak to nine deaths and 714 illnesses.  It prompted one of the largest food recalls in U.S. history.

Justin Lugar, one of Parnell's defense attorneys, confirmed Thursday that the recommendation before Judge W. Louis Sands is for life in prison, with no lesser range. Parnell's lawyers are trying to persuade the judge to disregard numbers used as aggravating factors to boost the suggested sentence to its maximum: an estimate that Parnell's customers suffered $144 million in losses as well as health officials’ tally that 714 people got sick....

“That recommendation is truly absurd,” said Ken Hodges, an attorney on Parnell's defense team. “We hope the judge will see that Stewart Parnell never meant to hurt anyone. He ate the peanut butter himself. He fed it to his children and to his grandchildren.”...

“Life in prison, especially in a food case, it's frankly unprecedented,” said Marler, who has represented victims of food-borne illnesses for two decades. “But the case itself, on a factual basis, is unprecedented.” Marler said he suspects the judge and prosecutors will think carefully before deciding to pursue a life sentence for Parnell. Still, he said, even the possibility of such a stiff sentence sends a message to food companies....

Even if objections raised by Parnell's attorneys to the sentencing recommendation are denied, it's still possible the judge could impose a lighter sentence. Federal judges are required to consider recommendations based on complex sentencing guidelines, but they are not bound by them.

Parnell and his co-defendants were never charged with sickening or killing anybody. Instead prosecutors used the seven-week trial to lay out a paper trail of emails, lab results and billing records to show Parnell's company defrauded customers by using falsified test results to cover up lab screenings that showed batches of peanut butter contained salmonella. The tainted goods were shipped to Kellogg's and other food processors for use in products from snack crackers to pet food.

Prosecutors wrote that court officers “correctly calculated” Parnell's recommended sentence, but stopped short of saying whether they plan to ask the judge to impose a life sentence. A spokeswoman for the Justice Department in Washington, Nicole Navas, declined to comment.

Prosecutors’ legal briefs also noted stiff sentences were recommended for Parnell's two co-defendants. Punishment of 17 to 21 years in prison was recommended for Parnell's brother, food broker Michael Parnell, who was convicted on fewer counts. The recommendation for Mary Wilkerson, the Georgia plant's quality control manager, was eight to 10 years. She was convicted of obstruction of justice.

July 31, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (5)

Thursday, July 30, 2015

Will Senator Grassley's (still-developing) sentencing reform bill make it to the President's desk in 2015?

The question in the title of this post is prompted by this new National Journal article providing the latest news on the on-going Senate discussions of a new sentencing reform bill spearheaded by Senate Judiciary Chair Charles Grassley.  The piece is (misleadingly?) headlined "Chuck Grassley's Closer Than Ever to Giving in on Mandatory-Minimum Reform," and here are excerpts:

Grassley could be just days away from unveiling a major bipartisan justice-reform package that would seek to reduce recidivism and give inmates the chance to reduce their sentences with good behavior. The bill also will offer changes to the way judges dole out mandatory minimums.

Grassley has moved on the issue of mandatory minimums.  While a bipartisan group of senators is still working on the final bill, it's clear that the Republican from Iowa has come a long way.  "The points of negotiation are the ones you would expect, about in what areas mandatory minimums should be adjusted and to where they should be adjusted," says Democratic Sen. Sheldon Whitehouse, a key negotiator for justice reform in the Senate.

Unlike four months ago, today it is understood that any justice-reform package will include provisions that give judges more flexibility on sentencing.  Behind the scenes, Grassley has fought to ensure that the provisions in the bill are not just rehashes of the Smarter Sentencing Act he was opposed to, but changes in mandatory minimums are coming. "It's not as far as I would like, but we are getting somewhere," Sen. Patrick Leahy, a sponsor of the Smarter Sentencing Act, told National Journal.

On mandatory minimums, Grassley insisted earlier this year that senators negotiate from scratch.  "It was a long process, and he came in insisting on a different approach and we said, 'All right, let's take your approach and see how close we can come to our goal.' And he has worked in good faith with us and we're close," says Minority Whip Dick Durbin.

At this point, senators on both sides of the aisle report negotiations are closer than they have ever been. Senators have agreed that high-risk offenders, who are considered dangerous either because they deployed a weapon in a crime or have a history of violence, won't be eligible for the so-called safety valve.  A narrow subset of nonviolent drug offenders will be.

"What we are trying to do is to make sure that those who are guilty of drug offenses do not have other aggravating factors such as using a gun, violence, or gang activity.  We are working through the language very carefully on that," Durbin said. "How do we get the gang leaders and the brains of the gang separated from the rank and file?"

Many of the so-called back-end reforms that focus on giving prisoners a better chance of success after incarceration are borrowed from Republican Sen. John Cornyn and Sen. Whitehouse's Corrections Act....  The proposals in the Corrections Act focus on giving inmates the opportunity to get jobs and exhibit a propensity for success.  Some low-level offenders can even work their way up to qualifying to serve the final weeks and months of their sentence supervised in the community.

Even once the new bill is introduced, however, there will still be changes made to it.  And any legislation that makes it to the floor of the U.S. Senate will likely undergo a vigorous amendment process.

Other senators who have worked on criminal-justice reform before already see the upcoming legislation as an opportunity to advance their own causes.  Sen. Tim Scott, a Republican from South Carolina, has introduced a bill to grant local law enforcement agencies $500,000,000 for body cameras over a five-year period. Scott says that arming agencies with cameras will help stem tensions between police and the communities they patrol.  The floor may be another place for senators to add more stringent reductions in mandatory minimums.

Though Senator Grassley has been promising that "his" bill will be ready for prime time before the Senate takes its August recess, I remain fearful that the press of other legislative activities (as well as enduring opposition from the tough-and-tougher crowd) may prevent any significant federal sentencing reform from getting done before the end of the year.  I hope my pessimism in this area is proven wrong; but given that we have already had more than two years of "momentum" and bipartisan talk of federal sentencing reform while no bill has even made it out of one congressional chamber, I am not going to count any sentencing reform chickens until they are doing the chicken dance on a desk in the Oval Office.

July 30, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, July 21, 2015

"Sentencing the Wolf of Wall Street: From Leniency to Uncertainty"

The title of this post is the title of this notable new paper now available via SSRN authored by Lucian Dervan. Here is the abstract:

This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today.

In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud.  This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders.  In concluding this initial examination, the Article discusses three observed trends.  First, today, as might be expected, it appears there are much longer sentences for major white-collar offenders as compared to the 1980s and 1990s.  Second, today, there also appears to be greater uncertainty and inconsistency regarding the sentences received by major white-collar offenders when compared with sentences from the 1980s and 1990s.  Third, there appear to have been much smaller sentencing increases for less significant and more common white-collar offenders over this same period of time.

In Part III, the Article examines some of the possible reasons for these observed trends, including amendments to the Federal Sentencing Guidelines, increased statutory maximums, and judicial discretion.  In concluding, the Article offers some observations regarding what the perceived uncertainty and inconsistency in sentencing major white-collar offenders today might indicate about white-collar sentencing more broadly.  In considering this issue, the Article also briefly examines recent amendments adopted by the U.S. Sentencing Commission and proposed reforms to white-collar sentencing offered by the American Bar Association. 

July 21, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (1)

Thursday, July 16, 2015

"From a First Arrest to a Life Sentence"

Sharanda-1mThe title of this post is the headline of this new Washington Post article, which carries the subheadline "Clemency is the only way out for the thousands of nonviolent drug offenders serving life terms in federal prison." Here are excerpts from the start of the lengthy piece, as well as some details of the profiled LWOP defendant's case:

Sharanda Jones — prisoner 33177-077 — struggled to describe the moment in 1999 when a federal judge sentenced her to life in prison after her conviction on a single cocaine offense.  She was a first-time, nonviolent offender.

“I was numb,” Jones said in an interview at the Carswell women’s prison here. “I was thinking about my baby.  I thought it can’t be real life in prison.” Jones, who will turn 48 next week, is one of tens of thousands of inmates who received harsh mandatory minimum sentences for drug offenses during the crack-cocaine epidemic, and whose cases are drawing new attention....

Because of her role as a middle woman between a cocaine buyer and supplier, Jones was accused of being part of a “drug conspiracy” and should have known that the powder would be converted to crack — triggering a greater penalty.

Her sentence was then made even more severe with a punishment tool introduced at the height of the drug war that allowed judges in certain cases to “enhance” sentences — or make them longer.  Jones was hit with a barrage of “enhancements.”

Her license for a concealed weapon amounted to carrying a gun “in furtherance of a drug conspiracy.”  Enhancement.

When she was convicted on one count of seven, prosecutors said her testimony in her defense had been false and therefore an “obstruction of justice.”  Enhancement.

Although she was neither the supplier nor the buyer, prosecutors described her as a leader in a drug ring.  Enhancement.

By the end, Jones’s sentencing had so many that the federal judge had only one punishment option.  With no possibility of parole in the federal system, she was, in effect, sentenced to die in prison.

Jones almost certainly would not receive such a sentence today.  Federal sentencing guidelines in similar drug cases have changed, in particular to end disparities in how the courts treat crack cocaine vs. powder cocaine.  And, following a 2005 Supreme Court decision, judges have much greater discretion when they mete out punishment.  In the past decade, they gave lower sentences by an average of one-third the guideline range, according to the U.S. Sentencing Commission.

But a lingering legacy of the crack epidemic are inmates such as Jones.  About 100,000 federal inmates — or nearly half — are serving time for drug offenses, among them thousands of nonviolent offenders sentenced to life without the possibility of parole, according to the American Civil Liberties Union.  Most are poor, and four in five are African American or Hispanic.

In the spring of 2014, then-Attorney General Eric H. Holder Jr. — who had called mandatory minimum sentences “draconian” — started an initiative to grant clemency to certain nonviolent drug offenders in federal prison.  They had to have served at least 10 years of their sentence, have no significant criminal history, and no connection to gangs, cartels or organized crime.  They must have demonstrated good conduct in prison.  And they also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today.

Jones applied. It has been a halting process, however.  Only 89 prisoners of the more than 35,000 who have filed applications have been freed.  They include 46 inmates who were granted clemency on Monday by Obama.  Jones wasn’t among them....

On Aug. 26, 1999 — after days of testimony about drug deals by people nicknamed “Weasel,” “Spider,” “Baby Jack” and “Kilo,” and a dramatic moment when Jones’s quadriplegic mother was wheeled into the courtroom — the jury acquitted Jones of all six charges of possession with intent to distribute crack cocaine and aiding and abetting.  But they found her guilty of one count of conspiracy to distribute crack cocaine.

Although no drugs were ever found, U.S. District Judge Jorge Solis determined that Jones was responsible for the distribution of 30 kilograms of cocaine.  He arrived at that number based on the testimony of the co-conspirators — the couple who received sentences of seven and eight years, and the Houston dealer, who got 19.5 years.  All have since been released.

The judge determined that Jones knew or should have known that the powder was going to be “rocked up” — or converted to crack.  Using a government formula, the prosecutor said that the 30 kilograms of powder was equal to 13.39 kilograms of crack cocaine.  He then added 10.528 kilograms of crack cocaine that the prosecutors said had been distributed in Terrell and was linked to Jones’s brother.  (The U.S. Court of Appeals for the 5th Circuit affirmed the conviction, but said there was “barely” any evidence of Jones’s connection to the crack distributed in Terrell.)

The judge’s calculation made Jones accountable for 23.92 kilograms of crack.  That, added to the gun and obstruction enhancements, as well as Jones’s role as an “organizer,” sealed her sentence under federal rules that assign numbers to offenses and enhancements.  The final number — 46 — dictated the sentence, leaving the judge no discretion.

“Under the guidelines, that sets a life sentence, mandatory life sentence,” Solis said at a hearing in November 1999.  “So, Ms. Jones, it will be the judgment of the court that you be sentenced to the custody of the U.S. Bureau of Prisons for a term of life imprisonment.” Solis declined to be interviewed. Said McMurrey: “In light of the law and the guidelines and what the court heard during the trial, I know Judge Solis followed the law. He’s a very fair man.”

The sentencing scheme that sent Jones to prison has been widely denounced by lawmakers from both political parties.  And sentences have been greatly reduced for drug offenses. But the differing approaches over time have led to striking disparities.

One illustration: The Justice Department announced last month that one of Colombia’s most notorious drug traffickers and a senior paramilitary leader will serve about 15 years in prison for leading an international drug trafficking conspiracy that imported more than 100,000 kilograms of cocaine into the United States.

The jurors who found Jones guilty were never told about the life sentence, which came months after the trial.  Several of them, when contacted by The Washington Post, were dismayed. “Life in prison? My God, that is too harsh,” said James J. Siwinski, a retired worker for a glass company.  “That is too severe.  There’s people killing people and getting less time than that.  She wasn’t an angel.  But enough is enough already.”

July 16, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, July 15, 2015

Fascinating new drug guideline resentencing opinion from Judge Jack Weinstein

Judge Jack Weinstein is a justifiably legendary federal judge (whom, I must note, will be turning 94 in a few weeks).  Among the reasons Judge Weinstein is justifiably legendary is his ability to author remarkable (and remarkable long) opinions on an array of federal legal subjects.  Today I learned of his latest such opinion in in US v. Alli-Balogun, 92–CR–1108 (E.D.N.Y July 15, 2015) (available for download below).  Here is how the opinion starts:

The case is a remarkable one.  Though the drug case was nasty, the long-term imprisonment, by today’s standards, was excessive.  Defendant has served 273 months in prison while his wife and children established high status employment in banking and medicine.  See Hr’g Tr., July 15, 2015. Throughout his incarceration, he has maintained close contact with his family. Id. This resentence provides an opportunity to rectify, in modest degree, an unnecessarily harsh sentence imposed in crueler times.

Download Weinstein § 3582(c)(2) OPINION on RESENTENCING

The next 70+ pages goes on to discuss (and break a little new ground) the defendant's motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2) and his challenge to his his conviction under 28 U.S.C. § 2255. (For the record, the defendant bats .500 in his efforts.)

July 15, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Politico article suggests real federal sentencing reform poised to become a reality

Almost exactly two years ago, in this July 2013 post reflecting frustration hearing lots of federal sentencing reform talk and relatively little major sentencing reform action, I speculated that the GOP gaining control of the US Senate along with the House might actually make the enactment of some significant federal sentencing reform more likely before the end of the Obama era.  Thus today, thanks to this Politico article reporting on where developments in the GOP-controlled Congress stand, has me feeling a bit clairvoyant:

As President Barack Obama on Tuesday evening called on Congress to take up criminal justice reform, a bipartisan group on Capitol Hill was putting the final touches on a sentencing overhaul deal to be announced as soon as next week. Their message to the president: You’re preaching to the choir. Story Continued Below

“We’ve actually been working on it for quite a while,” said Senate Majority Whip John Cornyn (R-Texas), one of the key negotiators of a package being hashed by members of the Senate Judiciary Committee. “You may see some legislation here in the next week or so. This is active. … [W]e’re close.”...

Right now, the prospects for such legislation seem good, given that lawmakers from both parties have been wrangling with a reform bill for months. Tuesday, for example, the House Oversight Committee became at least the third congressional panel to highlight problems in the justice system, inviting two governors, a handful of senators, House members and experts to discuss a path forward for reducing the number of inmates in federal prisons.

Hours later, the House officially formed the Congressional Criminal Justice and Public Safety Caucus, which will include justice reform supporters. And across the Capitol, Cornyn joined Sens. Mike Lee (R-Utah), Cory Booker (D-N.J.) and Sheldon Whitehouse (D-R.I) for a public dialogue that emphasized the importance of reform.

The biggest announcement is just around the corner: Senate Judiciary Chairman Chuck Grassley (R-Iowa) told POLITICO on Tuesday that his panel is close to announcing a deal on the bipartisan package his panel has been working on for months. Only about four outstanding issues remain, he said, predicting the package will be unveiled before August recess.

July 15, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, July 13, 2015

Prez Obama with big plans (finally!!) to prioritize criminal justice reform efforts

Images (11)Way back in 2007, then-Prez-candidate Barack Obama on the campaign trail made much of the need for nationwide (and especially federal drug sentencing) criminal justice reform in a speech to Howard Univesity (which I discussed in this 2010 law review article).  In that speech, candidate Obama promised that as President he would be "willing to brave the politics" to help engineer criminal justice reforms.  As long-time readers know from my commentary here and elsewhere, I have long been disappointed that Prez Obama has left us waiting a long time for the reality of his policy work to match the rhetoric of his first political campaign.  

But now, roughly eight years after making campaign proimises at Howard Univesity (and, tellingly, after the conclusion of every significant nation election in which Prez Obama is the most significant player), it appears that Prez Obama is finally poised to invest his political muscle and capital on crimnal justice reform.  This effective Bloomberg Politics article, headlined "Obama to Push U.S. Sentencing Change Backed by Koch Brothers," explains how and provides effective context:

The White House is preparing to seize advantage of bipartisan concern over the burgeoning U.S. prison population and push for legislation that would reduce federal sentences for nonviolent crimes.

President Barack Obama will champion sweeping reform of the criminal justice system during a speech to the NAACP annual convention on Tuesday in Philadelphia, press secretary Josh Earnest said Friday. Obama will present ideas to make the system “safer, fairer and more effective,” Earnest said.

Later in the week, Obama will become the first sitting U.S. president to visit a federal prison when he goes to a medium-security facility in El Reno, Oklahoma.  He’ll also sit for an interview with Vice News for an HBO documentary on the criminal justice system, Earnest said.

Obama came to office promising to reduce the number of Americans imprisoned for nonviolent drug offenses, and in 2010 he signed a law reducing disparities in sentences for possession of crack and powder cocaine. Some Republicans and police organizations criticized the moves as too lenient, but now a bipartisan coalition that includes Obama’s chief political antagonists, billionaires Charles and David Koch, have joined him to support relaxing federal sentencing guidelines.

Key lawmakers from both parties have been invited to the White House next week to discuss strategy. And Obama is expected to soon issue a spate of commutations for nonviolent drug offenders identified by a Justice Department program launched last year. Top officials from the department, including Deputy Attorney General Sally Yates, have recently met with members of Congress to express support for sentencing-reform legislation.

“Engagement with the president has been lacking for the past six years, but this is one topic where it has been refreshingly bipartisan,” Representative Jason Chaffetz, the Utah Republican who heads the House Oversight Committee, said in a telephone interview....

Chaffetz said he was optimistic that a package of bills would advance because of a diverse coalition of supporters lined up behind it. The president dubbed the legislation “a big sack of potatoes” in a meeting with lawmakers in February, Chaffetz said. The composition of the legislation isn’t final.

The Koch brothers, who are major Republican donors, support a bill introduced last month by Representatives Jim Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, that would encourage probation rather than imprisonment for relatively minor, nonviolent offenses and improve parole programs in order to reduce recidivism.

The Sensenbrenner-Scott bill is modeled on state efforts to reduce incarceration. While the federal prison population has grown 15 percent in the last decade, state prisons hold 4 percent fewer people, according to Sensenbrenner’s office. Thirty-two states have saved a cumulative $4.6 billion in the past five years from reduced crime and imprisonment, his office said in a report....

Representative Bob Goodlatte, the Republican chairman of the House Judiciary Committee, held a meeting in late June to listen to proposals from lawmakers in both parties. And Chaffetz, who described the Republican leadership in the House as “very optimistic and encouraging,” scheduled hearings on the issue by his committee for July 14 and 15. “I don’t normally do two days of hearings; we’re giving it that much attention,” Chaffetz said. “So it has more momentum than anybody realizes.”

There is a significant obstacle on the other side of the Capitol: Senator Chuck Grassley, the Iowa Republican who chairs his chamber’s Judiciary Committee.... But supporters of the House legislation have reason for optimism: Last month, Grassley announced he would work on a compromise in the Senate.

While Grassley has indicated a willingness to reduce penalties for some crimes, he wants to increase mandatory minimum sentences for other offenses, a Senate Republican aide said. The person requested anonymity to discuss internal deliberations. That could make sentencing changes an easier sell to tough-on-crime voters, but endanger the support of lawmakers who see mandatory minimums as bad policy. “There does appear hope for a bipartisan compromise,” Earnest said Monday. “We obviously welcome that opportunity.”

Senator Mike Lee, a Utah Republican who has long championed criminal justice reform, is leading negotiations with Grassley. He’s backed by Patrick Leahy of Vermont, the senior Democrat on Grassley’s committee, and Dick Durbin of Illinois, the second-ranking Democrat in the Senate.

The talks remain sensitive. During a Judiciary Committee hearing on Wednesday, Leahy -- admitting he already knew the answer -- asked Yates, who was testifying before the panel, to restate her support for sentencing reform. “I was born at night, but not last night,” Grassley interjected. “And I know that question was in reference to me, and I want everybody to know that we’re working hard on getting a sentencing-reform compromise that we can introduce. And if we don’t get one pretty soon, I’ll probably have my own ideas to put forward.”

July 13, 2015 in Clemency and Pardons, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, July 01, 2015

Want does Johnson mean for the past, present and future of the career offender guidelines?

As first reported in this post, the the Supreme Court late last week in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  In this initial post, I quickly explored Johnson's appliction to those previously sentenced under ACCA, and I will have more to say on that topic in the future.  But in this post, I wanted to flag the possibility that Johnson could impact past, present and future sentencing pursuant to the career offender guideline of the US Sentencing Guidelines.  

The possible impact of Johnson on guideline sentencing arises because the key phrase declared unconstitutionally vague in Johnson — the phrase which defines predicate offenses to include any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" — is also used in the definition of a career offender predicate under USSG 4B1.1 and 4B1.2.  And, critically, many more federal defendants get sentenced pursuant to the career offender guidelines than pursuant to ACCA.  Indeed, according to Sentencing Commission data, it appears as many as four times more defendants on average each year (roughly 2,200 as opposed to 550) are subject to the career offender guideline than are subject ot ACCA.  

But, importantly, even though the career offender guideline uses the same phrasing as the ACCA statute as the basis of a big sentencing enhancement, this part of the guideline is not necessarily going to be deemed unconstitutionally vague in all cases because lower courts have suggested traditional vagueness doctrines simply do not apply to guidelines in the same way the apply to statutes.  Morevoer, the arguments against applying vagueness doctrines to the application of the federal sentencing guidelines would seem to be even stronger in a post-Booker world in which the guidelines are only advisory.

Moreover, even if the Johnson ruling and vagueness doctrines apply to the federal sentencing guidelines, defendants sentenced in the past under the career offender guideline may be able to get (or even seek) any sentencing relief comparable to ACCA-sentenced defendants.  As noted in prior posts, ACCA's application is such a big deal because it changes a 10-year statutory max sentencing term into a 15-year statutory minimum.  In contrast, the career offender guideline only changes a calculated guideline range within an otherwise applicable statutory range.  That difference certainly means that the best a career offender defendant can hope to get from Johnson is a chance at resentencing, not an automatically lower sentence.

Beyond the interesting and intricate question about Johnson's impact on past career offender sentences, I also think the present and future of this guideline's application remains uncertain.  Given that vagueness doctrine might not apply to the guideline, perhaps district judges could (and even should) still keep applying as it did in the past the phrasing found problematic in Johnson.  Or perhaps district judges ought to now just adopt the approach to the probelmtic clause that was advocated by Justice Alito in dissent in Johnson (discussed in this post).  Or perhaps the US Sentencing Commission needs to use its emergency amendment authority ASAP to just delete or revise the phrase that Johnson addressed because, if it does not, it is near certain different courts nationwide will take different approaches to how to implement the guideline now in light of Johnson.

In sum: Johnson + career offender guideline = lots and lots of uncertainty and interpretive headaches.

Some prior posts on Johnson and its possible impact:

July 1, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

Wednesday, June 24, 2015

Notable new federal drug sentencing guideline reform data and discussion from US Sentencing Commission

I just received via e-mail a notable alert from the US Sentencing Commission concerningnotable new information and materials now available on the USSC's website.  Here is the text of the alert I received (along with relevant links):

Today, the U.S. Sentencing Commission released its first report on retroactive application of the 2014 drug guidelines amendment, which reduced the drug quantity table in the federal sentencing guidelines by two levels.  This report includes motions decided through the end of May 2015 for a reduced sentence under the new amendment.  Read the report.

For background information on why the Commission amended the drug guidelines, read the first of our new Policy Profile series, “Sensible Sentencing Reform: The 2014 Reduction of Drug Sentences.”

The Commission is also seeking public comment on proposed priorities for the upcoming amendment cycle.  Public comment is due on or before July 27, 2015.  More information

There is data and discussion in each of thse three new USSC documents that merit careful study and perhaps future substantive comment. For now, though, I am eager just to praise the Commission for the creation of the reader-friendly and astute "new Policy Profile series." I have long thought it a good idea for the USSC to say a lot more about matters of policy, but to do so in smaller forms than the traditional lengthy 300+ page reports to Congress. Thus, I consider this new Policy Profile series to be both a great idea and one that could pay lots of dividends for all policy-makers, researchers and advocates who are concerned about federal sentencing law and policy,

June 24, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"I know there needs to be [sentencing] reform,” Sen. Chuck Grassley says. “We need this.”

Secondary_150623_chuck_grassley_gty_1160The title of this post is the (slightly modified) subheadline of this lengthy new Politico report, headlined "Riots spur Senate look at sentencing reform." Here are excerpts:

After the Baltimore and Ferguson riots ignited nationwide discussions of race and criminal justice, a bipartisan group of top Senators is making headway on a sentencing reform compromise to release well-behaved prisoners early and reduce some mandatory-minimums.

But the fledgling proposal — yet to be committed to paper — faces potential resistance from the wings of both parties: Liberals and libertarians who want it to go further, and tough-on-crime conservatives who fear that it lets convicts off the hook.

The group, led by Senate Judiciary Chairman Chuck Grassley (R-Iowa), is writing legislation to allow convicts with low risks of recidivism to earn time off their sentences. They’re also contemplating reductions to some nonviolent drug-related mandatory minimums — and maybe even increasing others on white-collar crime in the name of sentencing equality. Talks are ongoing.

The path forward is uncertain, however. Grassley must thread the needle between his colleagues like Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) — who say the war on drugs is dead and want to ditch mandatory minimums completely — and lawmakers like Sens. Marco Rubio (R-Fla.) and Jeff Sessions (R-Ala.), who are leery of ditching all such sentencing requirements and still back a tough-on-crime mindset that dominated the GOP in the 1980s and 1990s. It also marks a transition for Grassley, who’s never been a big advocate for reducing mandatory minimums and has been labelled an arch-nemesis of criminal justice reform by newspapers back home in Iowa.

“I have different views than Paul and those guys,” Grassley said in a short interview. “They’d make you believe [people are incarcerated] for smoking one pot or one ‘roach’ … But they’re not; they’re in for a lifetime of violent crime.” “But I know there needs to be reform,” he quickly added. “We need this.”

It’s a political gamble. On the one hand, the group risks being accused of writing a watered-down overhaul; on the other, lawmakers don’t want to be accused of letting convicts off too easily. Striking a balance between those two positions has been difficult in the past — and one of the reasons such legislation hasn’t been enacted in previous congresses.

“You’ve got to be very careful,” said Sessions, a former U.S. Attorney for the Southern District of Alabama who’s already skeptical of the burgeoning deal. He launched into a lecture: “Historic criminal justice reform in the early 1980s has led to this dramatic drop in the crime rate. I mean, the murder rate is less than half of what it was — and so [mandatory minimums were] a fundamental component… I don’t want us to go further than we should in reducing sentences.”

The new compromise package comes amidst heightened inter-racial tensions following the deaths of unarmed black men at the hands of police officers. And when a young white man murdered nine black churchgoers in Charleston, S.C., because of their skin color, the nation was again plunged into discussions of race relations. “My hope is that in light of what happened in South Carolina, we think beyond the symbolism of the [confederate] flag, to changes that really show we’re committed to fairness when it comes to racial equality,” said Democratic Minority Whip Dick Durbin (D-Ill.), who is part of the compromise group.

For supporters of sentencing reform, reform is needed in the name of equality. Many mandatory minimums disproportionately affect African Americans because they are used for sentencing drug-related crimes that plague predominately lower-income, urban populations. “We’re housing too many of our citizens who are committing nonviolent crimes,” said civil rights activist Rep. John Lewis (D-Ga.). “So many people, especially, low-income people who can’t hire lawyers — and it’s not fair.”...

Over the past few years, reform negotiations have been dominated by people like Paul and more libertarian-type Republicans, as well as Democrats such as Leahy. The pair have teamed up on legislation that effectively eliminates mandatory minimums by allowing judges to override them. But the idea of eliminating mandatory minimum makes people like Grassley and his co-Republican negotiator, Sen. John Cornyn, nervous.

“Having been a judge for 13 years and attorney general, my observation is we have to be careful,” Cornyn said during a Tuesday interview in his Senate office. “Even though people may be well intentioned, there could be very negative consequences.”

The package marries provisions of two bills that passed the Judiciary panel last Congress. The first, sponsored by Cornyn and Sen. Sheldon Whitehouse (D-R.I.), another member of the group, focuses on the back end of sentencing reform by letting inmates out early and giving them tools to assimilate back to normal life. The program would only be offered for prisoners considered to have a low risk of re-offending and who do not have prior convictions. Those who have committed more serious crimes such as rape, murder or terrorism wouldn’t be eligible.

“The people coming out of prison are better prepared to re-enter society and be productive as opposed to regressing back into their life of crime,” under the program, said Cornyn, who notes that states have found positive results by implementing these sorts of programs. In Texas, Cornyn’s home state, such reductions have allowed them to close three prisons, he says. The deal would also take a page out of a bipartisan bill called “Smarter Sentencing” that would reduce mandatory minimums for drug crimes.

The compromise would leave intact mandatory minimums on violent offences as well as convictions that involve the use of firearms (an important exception for Cornyn), importing heroin and cocaine (a requirement of Grassley’s), gang involvement and terrorism, among others. “It’s narrow category of drug sentencing… but it would have a dramatic impact on the population in our federal prisons,” Durbin said.

Critics like Leahy, however, are bound to have reservations because the bill likely won’t go far enough. “Passage of mandatory minimum sentencing laws has not made us safer, but it has driven our federal prison population to historic highs — a nearly 800 percent increase in 30 years,” the former Judiciary chairman said in late April, speaking to The Constitution Project. “I oppose all mandatory minimums.”

Leahy, one of the Democrats’ lead voices on this issue, also isn’t a fan of the Cornyn bill — ultimately abstaining from voting on the measure last year because he believes it will just exacerbate racial disparity with its “high risk,” “low” designations. Paul’s office would not weigh in on the package that’s still in the works.

Other lawmakers are taking the opposite tack. When asked about such a package, Sessions on Monday ranted about “safer streets … where children can be raised,” and likened the debate to a “pendulum that tends to swing.” Rubio has also written op-eds expressing reservations about getting rid of certain minimum sentence requirements. And Grassley, whose committee staff is taking the lead on the matter, is sympathetic to those worries. In fact, it’s ironic that Grassley — who was not invited to the White House when Obama hosted Republicans to discuss this issue — is taking the lead on the compromise. Back home, the Des Moines Register called him a “stumbling block remains stubbornly in place.”

But Grassley says he’s always favored reducing some minimum sentences. He also wants to increase others, however — placing him at odds with some Democrats he’s currently negotiating with. He’d like to increase mandatory minimums on white color crimes like fraud, he says.

While they applauded the idea of allowing prisoners to earn more time off their sentences, several Congressional Black Caucus members engaged in the criminal justice reform talks threw cold water on that particular pitch. “That’s not the way to do it,” said Rep. Hank Johnson (D-Ga.). “I would oppose that for the same reason I’m opposed to mandatory minimums on other crimes: They take discretion away from the judge and put too much discretion in the hands of the prosecution.” Rep. Keith Ellison (D-Minn.) said the idea would “clearly” addresses the question of equal treatment for black and white offenders, but he has “an objection to mandatory minimums beyond the equity question.”...

Other pieces of the package still up in the air include provisions limiting asset seizures, or funding police body cameras — but Grassley worries bringing those into the negotiations at this point may hinder talks.

Cornyn suggested the group would be open to changes in committee and on the floor — so long as they don’t take the bill too far off course from the direction it’s headed, he added. And despite potential pitfalls to come, Whitehouse seemed confident they could deliver: “There’s a sweet spot for people who support reconsideration of mandatory minimums… there is a sweet spot in the middle.”

June 24, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Monday, June 22, 2015

Robina Institute now has great new "Sentencing Guidelines Resource Center"

Via e-mail, I just learned about a great new resource, The Sentencing Guidelines Resource Center, that has been created on-line by the Robina Institute of Criminal Law and Criminal Justice.  Here is the text of the e-mail description of this resource center (which I already have added to my Resources sidebar):

The Robina Institute is pleased to present The Sentencing Guidelines Resource Center.  The Sentencing Guidelines Resource Center is a new website that serves as a central source of information related to American sentencing guidelines systems. The Sentencing Guidelines Resource Center includes:

  • Detailed profiles of 6 sentencing guidelines jurisdictions: Alabama; Kansas; Minnesota; Oregon; Pennsylvania; and Utah. More jurisdictions will be added over the next several months.
  • Current versions of the guidelines in each jurisdiction.
  • A searchable repository of materials produced by sentencing guidelines commissions (training manuals, worksheets, reports, meeting summaries).
  • Summaries of important interpretive case law.
  • A comparison tool so visitors can examine sentencing guidelines systems, side by side.
  • In-depth articles covering topics about guidelines and sentencing commissions.
By bringing together, in one place, materials that span all of the current sentencing guidelines systems in the U.S., the Robina Institute’s Sentencing Guidelines Resource Center is able to facilitate the exchange and sharing of information, expertise, and experience; educate on issues related to sentencing policy, guidelines, and commissions; promote multi- jurisdictional comparative research and policy analysis; and promote the adoption and retention of best practices in sentencing guidelines systems.

June 22, 2015 in Federal Sentencing Guidelines, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Sunday, June 21, 2015

Great new USSC report (with some not-so-great data) on "Alternative Sentencing in the Federal Criminal Justice System"

Alternatives_thumbThe US Sentencing Commission released last week this notable new report on titled "Alternative Sentencing in the Federal Criminal Justice System." (Notably, the report itself shows a cover date of May 2015, but I am pretty sure it was just posted last week on the USSC's website.)  Here is how the USSC itself briefly describes its new (data-heavy) document:

As a supplement to the Commission's 2009 publication, this report examines more recent trends in the rates of alternative sentences and examines how sentencing courts use their discretion to impose alternative sentences.

This 30+ page report has lots of data about when and how federal judges impose alernative sentences in the post-Booker era. The data could (and perhaps should) be assessed in a variety of different ways, but I found at least some of these data realities somewhat discouraging.  In particular, these passages from this USSC Alternative Sentencing report caught my eye, and they reflect data that I found at times a bit surprising and at times more than a bit depressing:

Although most federal offenders were not convicted of an offense carrying a mandatory minimum penalty, alternative sentences are imposed for only small proportion of federal offenders not convicted of such an offense. ...

During the past ten years, the proportion of United States citizen federal offenders eligible for alternative sentences (i.e., those offenders with sentencing ranges in Zones A, B, or C and who were not statutorily ineligible) decreased slightly from 27.6 percent in 2005 to 24.6 percent in 2014....

In contrast to the moderate decrease in the proportion of offenders eligible for alternative sentences (with sentencing ranges in Zones A through C), there was a larger decrease in the proportion of those offenders actually sentenced to an alternative. The proportion of eligible offenders sentenced to an alternative decreased from 71.9 percent to 65.0 percent during that time period....

Though relatively modest, there has been a clear trend of a decreased rate of alternative sentences during the past ten years.... Rates of alternative sentences decreased regardless of whether offenders were sentenced within or below the guideline range....  Despite the increased discretion that courts have used to vary from the guidelines after Gall, the data seem to demonstrate that courts are not using that discretion to impose alternative sentences at a greater rate.

Black and Hispanic offenders consistently were sentenced to alternatives less often than White offenders. The data indicate some differences in criminal history and offense severity that provide some insight to this finding. Black offenders had more serious criminal history scores compared to the other groups....

[F]emale offenders were sentenced to alternatives at higher rates than male offenders. This difference is especially apparent for offenders with sentencing ranges in Zone B, in which 75.4 percent of female offenders were sentenced to alternatives compared to 55.9 percent of male offenders.

In general, alternative sentences were imposed for more than half of offenders in each age group. Excluding offenders under the age of 21, there was a clear trend of increasing rates of alternatives as the age of the offender increased, and this trend was consistent across the sentencing zones.

June 21, 2015 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)