Thursday, August 17, 2017

US Sentencing Commission finalizes policy priorities and publishes notable holdover amendments

As reported in this press release, the US Sentencing Commission "today approved its final policy priorities for the upcoming amendment year ending May 1, 2018, which includes an examination of the overall structure of the guidelines and a continuation of its work on synthetic drugs [and] voted to publish several holdover proposals from the previous amendment cycle."  Here is more:

During the upcoming amendment year, the Commission will continue to explore approaches to simplify and strengthen the guidelines. “On this thirtieth year of the federal sentencing guidelines system, the Commission welcomes the opportunity to work with the Congress, the Courts, the Department of Justice, and other stakeholders to find ways to promote certainty and proportionality in sentencing while reducing the complexity of the guidelines,” stated Circuit Judge William H. Pryor, Jr., acting chair of the Commission.

The Commission will also continue its two-year study of synthetic drugs. In April, the Commission held a public hearing to receive testimony on the prevalence and effect of synthetic drugs. The Commission has since commenced a study of specific categories of synthetic drugs, including fentanyl. The Commission will research their chemical structure, pharmacological effects, potential for addiction, legislative and scheduling history, and other relevant issues. The study is intended to provide a meaningful distinction between categories of synthetic drugs so that closely related substances are more easily determined in the guidelines....

Stemming from the Commission’s research on youthful offenders as well as recommendations made by the Tribal Issues Advisory Group (TIAG) in its May 2016 report, the Commission will also continue to study how juvenile sentences are considered in the calculation of the defendant’s criminal history score.

Other priorities include continued work on mandatory minimum penalties. Following the release of the 2017 Mandatory Minimum Overview in July, which built on the Commission’s 2011 report, the Commission will release additional reports highlighting the impact of mandatory minimum penalties for certain offense categories. The Commission will also continue to work with Congress to adopt a uniform definition of “crime of violence” included in recommendations set forth in the 2016 Report to the Congress on Career Offender Sentencing Enhancements.

The Commission also published today several proposed guideline amendments from the previous amendment cycle and as an extension of its current policy priority work. “Today’s proposed amendments are a continuation of our work during the previous amendment year. These holdover proposals were not voted on last year due to the lack of a quorum during the deliberation process. Publishing today gives this reconstituted Commission an opportunity to carefully review these proposals and consider them as early as possible in the current amendment cycle,” stated Judge Pryor.

Among the proposed amendments published today are changes that would increase the number of federal offenders eligible for alternatives to incarceration. Informed by the Commission’s multi-year study on recidivism, one of the proposed amendments would add a downward adjustment to the guidelines for first offenders.

August 17, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Wednesday, August 16, 2017

US Sentencing Commission to hold public meeting to finalize policy priorities and perhaps vote on guideline amendments

As indicated here, the US Sentencing Commission is holding a public meeting tomorrow.  Interestingly, the listed agenda for the meeting includes not only the usual "Vote on Final Policy Priorities for 2017–2018," but also a seemingly unusual "Possible Vote to Publish Proposed Amendments."

Every year around this time, the USSC finalizes its policy priorities after releasing tentative priorities and receiving comments.  For this year, here are the tentative priorities and here is the USSC's collection of some public comments it received.  On the main USSC page, the Commission states that it "received a record number of public comment submissions pertaining to proposed priorities for the 2017-2018 amendment year."  I am inclined to believe that the switch in Prez Administrations, some turn-over in USSC membership, and ever-growing concerns about the federal criminal justice system accounts for large number of comments this time around.

While finalizing of priorities are standard USSC activity this time of year, publishing of proposed amendments are not standard in August absent a need to respond to some pressing matter like a a consequential Supreme Court decision.  (In the usual course, guideline amendments get proposed in January and finalized in April.)  I suppose the USSC might think it worthwhile to propose amendments in response to recent SCOTUS federal sentencing decisions like Beckles and Dean, but I am not sure these rulings really demand immediate USSC amendment action.  Of course, as reported here, the USSC decided earlier in 2017 not to move forward with formal amendments for the 2017 amendment season because it lacked a quorum for a number of months.  With the USSC now having had a quorum in place for a number of months, perhaps it feels eager and able to move forward on some of the ambitious proposed amendments it released back in December 2016.

Happily, hard-core federal sentencing fans do not need to speculate about these matters for too long:  the USSC's meeting starts Thursday morning at 11am, and it can be live-streamed here.

August 16, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Wednesday, August 09, 2017

Still more interesting new "Quick Facts" publications on federal drug sentencing from the US Sentencing Commission

In this post a few month ago, I noted that the US Sentencing Commission had released a notable new Quick Facts covering all "Drug Trafficking Offenses"  (As the USSC explains and reglar readers know, "Quick Facts" are official publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")   Now I see that the USSC has just released this big set of new Quick Facts covering individual drugs:

The data appearing these publications runs through Fiscal Year 2016, which is end of September 2016, and thus they set something of a benchmark for the end of the Obama era before the start of the Trump era of federal criminal policies and practices.

August 9, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

Sunday, August 06, 2017

You be the federal judge: what sentence for "Pharma Bro" after his fraud convictions?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this MSNBC report, headlined "'Pharma bro' Martin Shkreli found guilty of 3 of 8 charges, including securities fraud," the high-profile offender this time around is a notorious pharmaceutical executive. Here are the basics about his crime:

A federal jury Friday found notorious "Pharma bro" Martin Shkreli guilty of three counts of securities fraud — but acquitted him of five other criminal counts related to hedge funds investors and a drug company he founded. The split verdict in Shkreli's trial came at about 2:37 p.m. on the fifth day of jury deliberations, after a more-than-month-long trial in Brooklyn, New York, federal court.

At that trial, prosecutors claimed Shkreli had defrauded multiple investors in his two hedge funds out of millions of dollars, only to repay them with stock and cash that he looted from a the biotech company he created, Retrophin. While the seven-woman, five-man jury clearly accepted some of the prosecution's evidence, it rejected other parts of their argument.

The mixed decision perplexed many in the courtroom, including the 34-year-old Shkreli, who first drew widespread public scorn in 2015 for raising the price of a lifesaving drug by more than 5,000 percent. He looked over quizzically at one of this lawyers, Marc Agnifilo, each of the three times that Judge Kiyo Matsumoto interrupted a set of "not guilty" announcements she was reading off of the jury's verdict sheet with a "guilty" one.

A juror who was quoted anonymously by the New York Times, said "In some of the counts at least we couldn't find that he intentionally stole from them and the reasoning was to hurt them."...

Shkreli, who remains free on $5 million bail, faces a maximum sentence of 20 years in prison. But he is sure to receive a far-less-severe punishment than that, given his lack of a criminal record, and other factors.

"I think we are delighted in many ways," said Shkreli said outside of the courthouse. "This was a witch hunt of epic proportions and maybe they found one or two broomsticks but at the end of the day we've been acquitted of the most important charges in this case." He almost immediately afterward used his new Twitter account, @samthemanTP, to comment on the outcome of the case, and also started a livestream on YouTube from his apartment.

Shkreli's lead lawyer, Benjamin Brafman, told a group of journalists, "I hope tomorrow's reports inform the public that Martin Shkreli went to trial and despite being Martin Shkreli he won more than he lost."

But acting United States Attorney Bridget Rohde, whose office prosecuted Shkreli, said, "We're gratified as we stand here today at the jury's verdict."

"Justice has been served," said Rohde, whose prosecution team next plans to try Shkreli's co-defendant and former business lawyer Evan Greebel this fall.

Brafman said the amount of money Shkreli could be made to surrender would have been much higher if he had been found guilty of ripping off Retrophin, to repay swindled hedge-fund investors. But Shkreli was acquitted of that charge, conspiracy to commit wire fraud, which Brafman referred to as "the money count."

Brafman said that because the jury found that any loss suffered by Retrophin was either low, or non-existent, as the defense claims, the sentence recommended for Shkreli will be light. "I think we would love to have a complete sweep but five out of eight counts, not guilty, is in our view a very good verdict especially since count seven, the main count that impacts on the loss in this case, that was the most important count in the case from our perspective," Brafman said. "And for Martin to be found not guilty of that count is a very, very good result as far as we are concerned," Brafman said....

The charges against Shkreli were unrelated to his decision, while CEO of Turing Pharmaceuticals, to raise the price of the drug Daraprim from $13.50 per pill to $750 per pill in 2015. The price increase came as he was being investigated for the case that led to his trial.

Prosecutors said a mountain of testimony and evidence at that trial showed that Shkreli duped multiple investors into putting millions of dollars into two hedge funds he ran, MSMB Capital and MSMB Healthcare, by falsely claiming to have an excellent record of running such funds, and by falsely stating his investment strategy had a low level of risk.

After getting their money, prosecutor said, Shkreli quickly lost much of it, and also used some of it to capitalize his infant company Retrophin even as he continued sending out financial statements to investors claiming positive returns. And when investors asked for their money to be redeemed to them in cash, Shkreli brushed them off for months or more, inventing excuses and suggesting alternative ways to pay them back, according to the prosecution's case.

Two of the securities fraud counts for which Shkreli was convicted related to those hedge funds. Prosecutors said that he then improperly used Retrophin stock and cash from the young firm to pay off the the funds' investors. While Shkreli was acquitted of on Retrophin-related count, he was convicted of conspiracy to commit securities fraud in connection with Retrophin.

This Reuters article, headlined "Shkreli sentence turns on antics, investor impact of crime," highlights that this case may be the relatively rare white-collar case in which the calculated guideline range is rather low but personal factors may prompt a judge to want to sentence above the range:

Benjamin Brafman, Shkreli's lawyer, said because the hedge fund investors ultimately profited, his client's sentencing range should be zero to six months, which allows for probation in lieu of prison.

Brafman in an email on Saturday acknowledged Shkreli's social media habits are "not helpful" and hoped the court would focus on the facts of the case and the law. "My hope is that the court will ignore the childish and compulsive tweeting of Mr. Shkreli that‎ is his right to do," Brafman said.

Shkreli could benefit from steps he took to repay investors before he caught the attention of authorities. "As long as the investors were paid back before he knew there was a criminal investigation that is subtracted from any loss figure," said Sarah Walters, a lawyer at the law firm McDermott Will & Emery.

Prosecutors are expected to argue the intended losses of the fraud were much higher, noting the millions of dollars that investors lost before they were repaid, according to the law enforcement source, who requested anonymity to discuss the case. That could allow for a lengthier sentence, as under federal sentencing guidelines, judges are to consider the actual or intended loss, whichever is higher.

Legal experts also said prosecutors could argue for a lengthier sentence by asking U.S. District Judge Kiyo Matsumoto to factor in the conduct involving Retrophin despite the acquittals. While juries must find wrongdoing under the high standard of proof beyond a reasonable doubt, judges at sentencing may consider facts proven by the lower standard of preponderance of the evidence.

The guidelines are advisory only, and Matsumoto can factor in other issues, including Shkreli's trash-talking habits. "In this case, I imagine they will focus more on that he is a liar, he disparages people, he is a disruptive force and he has a complete lack of remorse," said John Zach, a lawyer at Boies, Schiller & Flexner.

August 6, 2017 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

Sunday, July 30, 2017

Should an uptick in federal gun prosecutions garner bipartisan praise?

The question in the title of this post was my first thought upon seeing this press release from the Justice Department released Friday under the heading "Federal Gun Prosecutions Up 23 Percent After Sessions Memo."  Here is the full text of the press release:

Today, the U.S. Department of Justice announced that, following the memorandum from Attorney General Sessions to prioritize firearm prosecutions, the number of defendants charged with unlawful possession of a firearm increased nearly 23 percent in the second quarter of 2017 (2,637) from the same time period in 2016 (2,149).

“Violent crime is on the rise in many parts of this country, with 27 of our biggest 35 cities in the country coping with rising homicide rates,” said Attorney General Jeff Sessions.  “Law abiding people in some of these communities are living in fear, as they see families torn apart and young lives cut short by gangs and drug traffickers.  Following President Trump’s Executive Order to focus on reducing crime, I directed federal prosecutors to prioritize taking illegal guns off of our streets, and as a result, we are now prosecuting hundreds more firearms defendants. In the first three months since the memo went into effect, charges of unlawful possession of a gun -- mostly by previously convicted felons -- are up by 23 percent.  That sends a clear message to criminals all over this country that if you carry a gun illegally, you will be held accountable.  I am grateful to the many federal prosecutors and agents who are working hard every day to make America safe again.”

In February, immediately after the swearing-in of Attorney General Jeff Sessions, President Trump signed an Executive Order that directs the Attorney General to seek to reduce crime and to set up the Task Force on Crime Reduction and Public Safety.  The Task Force has provided Sessions with recommendations on a rolling basis.  In March, based on these recommendations, Attorney General Sessions sent a memorandum to Department of Justice prosecutors, ordering them to prioritize firearms offenses.

In the three months immediately following the Attorney General’s memo -- April, May and June -- the number of defendants charged with unlawful possession of a firearm (18 U.S.C. 922) increased by nearly 23 percent compared to those charged over the same time period in 2016.  The number of defendants charged with the crime of using a firearm in a crime of violence or drug trafficking (18 U.S.C. 924), increased by 10 percent.

Based on data from the Executive Office for United States Attorneys (EOUSA), in Fiscal Year 2016 (starting October 1), 11,656 defendants were charged with firearms offenses under 18 U.S.C. 922 or 924.  EOUSA projects that in Fiscal Year 2017, the Department is on pace to charge 12,626 defendants with these firearms crimes.  That would be the most federal firearms cases since 2005.  It would also be an increase of eight percent from Fiscal Year 2016, 20 percent from 2015, and an increase of 23 percent from 2014.

Of course, as regular readers on this blog know well, many on the political left have been critical of various efforts by AG Sessions to ramp up federal prosecutions. But much of the criticism is based on concerns about escalating the federal drug war, especially as it applies to lower-lever and nonviolent offenders. As the title of this post is meant to suggest, perhaps this latest data showing a ramp up of gun prosecutions could be met with some applause from political left given the tendency of the left to support tougher restrictions on gun possession. (Of course, some parts of the libertarian-faction of the political right has also expressed concerns about recent work by AG Sessions, and they might be more troubled by these data.)

Critically, without having more information about the "who and how" of increased federal gun prosecutions, I do not feel sufficiently informed to robustly praise or criticize these developments. But I do think it interesting and notably that the first new data being stressed by the Sessions DOJ involves a type of prosecution that could garner support from both sides of the political aisle.

July 30, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Who Sentences? | Permalink | Comments (9)

Sunday, July 16, 2017

DAG Rosenstein makes the case for his boss's new charging and sentencing directive to federal prosecutors

Deputy Attorney General Rod Rosenstein authored this notable op-ed appearing in the San Francisco Chronicle to explain and justify Attorney General Sessions' new memo to federal prosecutors concerning charging and  sentencing.  The piece was given the headline "Attorney General Jeff Sessions is serious about reducing crime," and here is its full text:

U.S. Attorney General Jeff Sessions recently revised the federal criminal charging policy. When federal prosecutors exercise their discretion to prosecute a case, they generally “should charge and pursue the most serious, readily provable offense” established by the evidence, he wrote in a May 10 memo. Prosecutors must use “good judgment” in determining “whether an exception may be justified” by the particular facts of the case. The Sessions memo reinstitutes a policy that existed for more than three decades. It was first implemented by President Jimmy Carter’s attorney general, Benjamin Civiletti.

From 2013 to 2017, however, the U.S. Department of Justice protected some criminals from mandatory minimum sentence laws enacted by Congress. During that time, unless cases satisfied criteria set by the attorney general, prosecutors were required to understate the quantity of drugs distributed by dealers and refrain from seeking sentence enhancements for repeat offenders. Beneficiaries of that policy were not obligated to accept responsibility or cooperate with authorities.

After that policy was adopted, the total number of drug dealers charged annually by federal prosecutors fell from nearly 30,000 — where it had stood for many years — to just 22,000. Meanwhile, drug-related violence has surged. There has been a significant spike in murders, including an 11 percent increase in 2015 alone.

Drug overdose deaths also have accelerated at a frightening and unprecedented pace. The annual toll of Americans killed by drug overdoses stood near 36,450 in 2008, with some 20,000 overdose deaths involving prescription drugs, according to the Centers for Disease Control and Prevention. Estimates show that the 2016 total was on the order of 60,000, making drug overdose the leading cause of death of Americans under age 50.

Officials in many cities are calling on federal prosecutors for help, and tough sentences are one of federal law enforcement’s most important tools. Used wisely, federal charges with stiff penalties enable U.S. attorneys to secure the cooperation of gang members, remove repeat offenders from the community and deter other criminals from taking their places.

In order to dismantle drug gangs that foment violence, federal authorities often pursue readily provable charges of drug distribution and conspiracy that carry stiff penalties. Lengthy sentences also yield collateral benefits. Many drug defendants have information about other criminals responsible for shootings and killings. The prospect of a substantial sentence reduction persuades many criminals to disregard the “no snitching” culture and help police catch other violent offenders.

Minor drug offenders rarely face federal prosecution, and offenders without serious criminal records usually can avoid mandatory penalties by truthfully identifying their co-conspirators. The Sessions policy is serious about crime. It does not aim to fill prisons with low-level drug offenders. It empowers prosecutors to help save lives.

Prior recent related posts: 

July 16, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, July 06, 2017

An amusing shout-out for the US Sentencing Commission's guideline simplification efforts

I just noticed an blog-worthy little concurrence by Judge Owens at the end of a Ninth Circuit panel decision last week in US V. Perez-Silvan, No. 16-10177 (9th Cir. June 28, 2017) (available here). The case concerned application of the "crime of violence" sentencing enhancement to a sentence for illegal reentry after deportation based on a prior Tennessee conviction for aggravated assault, and Judge Owen wrote this short opinion to praise the work of both his court and the US Sentencing Commission:

I fully join Judge O’Scannlain’s opinion, which faithfully applies controlling law to the question at hand.  But what a bad hand it is -- requiring more than 16 pages to resolve an advisory question.  I applaud the United States Sentencing Commission for reworking U.S.S.G. § 2L1.2 to spare judges, lawyers, and defendants from the wasteland of DescampsSee U.S.S.G. supp. app. C, amend. 802 (2016); U.S.S.G. § 2L1.2(b) (2016).  I continue to urge the Commission to simplify the Guidelines to avoid the frequent sentencing adventures more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of the Souls.  Cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 482–83 (9th Cir. 2016) (en banc) (Owens, J., concurring); Raiders of the Lost Ark (Paramount Pictures 1981).

July 6, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, June 23, 2017

US Sentencing Commission releases its proposed priorities for 2017-18 amendment cycle

Download (1)Because of reduced membership and election transitions, as reported here, the US Sentencing Commission decided not to promulgate guideline amendments in the 2016-17 amendment cycle.  (For a variety of reasons, I think this was a wise decision even though, as noted in this post from December 2016, just before a number of Commissioners' terms expired, the USSC unanimously voted to publish some ambitious proposed amendments for 2017.)  The USSC still has a reduced membership — it is supposed to have seven members and right now has only four — but that has not prevented it from now releasing an ambitious set of proposed priorities for 2017-18 amendment cycle.  Nearly a dozen priorities appear in this new federal register notice, and here area few that especially caught my eye (with some added emphasis in a few spots): 

[T]he Commission has identified the following tentative priorities:

(1) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.

(2) Continuation of its multi-year study of offenses involving MDMA/Ecstasy, tetrahydrocannabinol (THC), synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone)....

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

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

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate, including possibly amending Chapter Four and Chapter Five to provide lower guideline ranges for “first offenders” generally and to increase the availability of alternatives to incarceration for such offenders at the lower levels of the Sentencing Table....

(9) Continuation of its study of alternatives to incarceration, including (A) issuing a publication regarding the development of alternative to incarceration programs in federal district courts, and (B) possibly amending the Sentencing Table in Chapter 5, Part A to consolidate Zones B and C, and other relevant provisions in the Guidelines Manual....

(11) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.

June 23, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, June 22, 2017

Are federal judges already getting a little tougher at sentencing in the Trump era?

The question in the title of this post was my first thought after looking through this new federal sentencing data released by the US Sentencing Commission today.  The data that really caught my eye is on Table 12, which shows that in the most recent quarter (running from January 1 to March 31), less than 20% of federal cases involved a judge-initiated departure/variance below the guideline range (19.9% to be exact), and 2.9% of cases involved a judge-initiated departure/variance above the guideline range.  The last time that less than 20% of federal cases involved a judge-initiated departure/variance below the guideline range was in the fourth quarter of 2013, and I do not believe there has ever been a quarter in which so many cases involved an above-guideline sentence.

Because federal sentencing data moves always around a bit from quarter-to-quarter, and because case-load mixes can vary from quarter-to-quarter, these small statistical changes I have noticed here may just be a coincidental blip rather than a reflection of the impact of tough-on-crime talk from the Trump Administration and its Department of Justice.  (Nevertheless, because the federal system currently sentences over 16,000 cases per quarter, even small statistical changes represent hundreds of defendants.)  We will have to see in subsequent USSC data runs whether this new pattern of fewer below-guideline sentences and more above-guideline sentences persists.

Critically, the period covered by this USSC federal sentencing data predates the May issuance by Attorney General Jeff Sessions of new charging and sentencing guidance for federal prosecutors.   I find it notable and interesting that federal judges may have already been responding in some (small) sentencing ways to the tough-on-crime talk from the Trump Administration even before AG Sessions formally toughened up federal prosecutorial policies and practices.

June 22, 2017 in Criminal justice in the Trump Administration, Data on sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Tuesday, June 20, 2017

Fascinating new OIG report examines implementation of former AG Holder's "Smart on Crime" initiative

I just came across this fascinating new report from the US Justice Department's Office of the Inspector General. The title of the lengthy report itself spotlights why the report is both fascinating and timely: "Review of the Department’s Implementation of Prosecution and Sentencing Reform Principles under the Smart on Crime Initiative." The full report runs 70 dense pages and even the executive summary is too lengthy and detailed to reproduce fully here. But these excerpts should whet the appetite of all sentencing nerds:

In August 2013, the U.S. Department of Justice (Department) and then Attorney General Eric H. Holder, Jr., announced the Smart on Crime initiative, which highlighted five principles to reform the federal criminal justice system. Smart on Crime encouraged federal prosecutors to focus on the most serious cases that implicate clear, substantial federal interests. In the first principle, the Department required, for the first time, the development of district-specific prosecution guidelines for determining when federal prosecutions should be brought, with the intent of focusing resources on fewer but the most significant cases. The second principle of Smart on Crime announced a change in Department charging policies so that certain defendants who prosecutors determined had committed low-level, non-violent drug offenses, and who had no ties to large-scale organizations, gangs, or cartels, generally would not be charged with offenses that imposed a mandatory minimum prison sentence.

The Office of the Inspector General (OIG) initiated this review to evaluate the Department’s implementation of the first two principles of Smart on Crime, as well as the impact of those changes to federal charging policies and practices. We assessed the 94 U.S. Attorney’s Office districts’ implementation and the impact of the Smart on Crime policy on not charging drug quantities implicating mandatory minimum sentences in circumstances where the defendants were low-level, non-violent offenders with limited criminal histories. We also assessed the implementation and impact of the policy that required prosecutors to consider certain factors before filing a recidivist enhancement that would increase the sentence of a drug defendant with a felony record pursuant to 21 U.S.C. § 851.

On May 10, 2017, the Attorney General issued a new charging and sentencing policy to all federal prosecutors that effectively rescinds the specific charging policies and practices outlined by Smart on Crime. We did not review this new policy as part of this review, which examined the implementation of the prosecution and sentencing reform principles under the Smart on Crime initiative....

We found that the Department made progress implementing the first two Smart on Crime principles, but we also identified several shortcomings in its efforts, including some failures to update national and local policies and guidelines and a lack of communication with local law enforcement partners regarding changes to these polices and guidelines in some instances.

We found that, while the Department issued policy memoranda and guidance to reflect its Smart on Crime policies, the U.S. Attorneys’ Manual (USAM), a primary guidance document for federal prosecutors, was not revised until January 2017, more than 3 years after Smart on Crime was launched, even though Department officials established a deadline of the end of 2014 to do so. Further, we determined that 74 of 94 districts had developed or updated their local policies to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions. Of the remaining 20 districts, some provided incomplete information to the OIG as to whether they had updated their prosecution guidelines or policy memoranda to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions in drug cases; in others, the district policies provided appeared to be inconsistent with the Smart on Crime policies in whole or in part; and some told us that they relied on the Holder memoranda for direction but did not develop or update any of their district policies or guidance documents to reflect the Smart on Crime policy changes.

We also found that 70 of 94 districts had incorporated Smart on Crime recidivist enhancement policy changes into their districts’ prosecution guidelines or policy memoranda. However, of the remaining 24 districts, 20 provided information to the OIG with respect to recidivist enhancements that appeared to be inconsistent with the 2013 Holder memoranda in whole or in part, or reported to the OIG that they followed the Holder memorandum but did not specifically revise their district policies to reflect Smart on Crime policy changes. The four remaining districts provided information that did not reflect the Smart on Crime policy changes on filing recidivist enhancements. Finally, we found that 10 districts failed to update their policies to reflect Smart on Crime policy changes with regard to both mandatory minimum charging decisions and recidivist enhancements....

We further found that the Department’s ability to measure the impact of the first two Smart on Crime principles is limited because it does not consistently collect data on charging decisions. For example, while the Legal Information Office Network System (LIONS), the U.S. Attorneys’ Offices’ case management system, allows federal prosecutors generally to track information about their cases, data fields relevant to Smart on Crime were not always present or updated.

Due to these limitations, the Department has relied on U.S. Sentencing Commission (USSC) data to assess the impact of the first two Smart on Crime principles. However, using USSC data to measure the impact of Smart on Crime’s charging policies is challenging because the USSC collects data from courts on sentencing decisions by judges and does not receive data from prosecutors about their charging decisions. In that regard, the USSC data does not allow assessments regarding charges that prosecutors could have brought but chose not to bring.

Nevertheless, based on our own analysis of USSC sentencing data over the period from 2010 through 2015, we found that sentencing outcomes in drug cases had shifted in a manner that was consistent with the first two principles of Smart on Crime. This was reflected by significantly fewer mandatory minimum sentences being imposed in drug cases nationwide, as well as a decrease in mandatory minimum sentences for those defendants who might otherwise have received such a sentence in the absence of the 2013 Holder memoranda....

We also found that some regions in the country diverged from these overall national trends. For example, while drug convictions decreased nationally by 19 percent, the decrease was far larger in the Southwest Border region. Further, the West, Pacific Northwest, and Hawaii and Island Territories regions actually showed increases in the number of drug convictions. As a result, we determined that national trends should not be interpreted in such a way as to conclude that Smart on Crime had a uniform impact across all the nation’s districts.

June 20, 2017 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, June 08, 2017

More interesting new "Quick Facts" publications from the US Sentencing Commission

The US Sentencing Commission has released two notable new Quick Facts covering "Drug Trafficking Offenses" and "Federal Offenders in Prison" as of February 2017. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  Here are a few of the many intriguing data details from these two small data-filled publications:

June 8, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, June 07, 2017

Four Senators write to AG Sessions with pointed questions about the Sessions Memo on charging and sentencing

As detailed in this press release from Senator Mike Lee, "Sens. Mike Lee (R-UT), Dick Durbin (D-IL), Cory Booker (D-NJ), and Rand Paul (R-KY) sent a letter to Attorney General Jeff Sessions Wednesday, seeking answers about the Department of Justice’s May 10, 2017 memorandum, directing federal prosecutors to pursue the most serious offense possible when prosecuting defendants."  The three-page letter is available at this link, and it starts this way:

We write concerning the Department of Justice's May 10, 2017 memorandum directing federal prosecutors to "pursue the most serious, readily provable offense." The Department's new policy ignores the growing bipartisan view that federal sentencing laws are in grave need of reform.  In many cases, the new policy will result in counterproductive sentences that do nothing to make the public safer. And it appears to force the hand of the prosecutors closest to each case to seek the highest possible offense rather than enable them to determine an appropriate lesser charge, which can help guard against imposing excessive sentences.

Among the six pointed questions (with sub-questions) that end the letter are these that strike me as especially interesting:

Pursuant to the Department's new policy, prosecutors are allowed to apply for approval to deviate from the general rule that they must pursue the most serious, readily provable offense.  The memo, however, does not explain how the Department will decide whether to grant approval to deviate from the general rule.  What factors will the Department consider in making these decisions? How often do you anticipate that prosecutors will request approval to deviate from the Department's charging policy? How often do you expect such requests will be granted?  Will Main Justice track how frequently attorneys seek departures from the new policy?

Are there any federal criminal offenses carrying mandatory minimum sentences that you believe are unfair?  Do you believe that all applications of 18 U.S.C. § 924(c) result in fair sentences?  If the answer to either of those questions is "no," why do you believe the Department's new policy allows enough discretion to individual prosecutors to result in fair outcomes in cases implicating these statutes?

 Prior recent related posts: 

June 7, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, June 03, 2017

NPR covers debate over federal sentencing and mandatory minimums in three parts

This past week, National Public Radio ran a notable three-part series with conversations about modern federal sentencing realities on its Morning Edition program.  Here are the links, headings and brief descriptions of who what talking about what:

Mass Incarceration Is A Major U.S. Issue, Georgetown Law Professor Says

Rachel Martin talks to Georgetown University Law professor Paul Butler about the ongoing and new challenges facing the nation regarding the criminal justice system.

Former Prosecutor On Why He Supports Mandatory Minimums

Attorney General Sessions told federal prosecutors to seek the harshest penalties possible against defendants.  Former federal prosecutor Bill Otis tells Rachel Martin why he supports the guidelines.

A Federal Judge Says Mandatory Minimum Sentences Often Don't Fit The Crime

NPR's Rachel Martin speaks to federal Judge Mark Bennett of Iowa, who opposes mandatory minimum charging and sentencing guidelines for nonviolent drug offenses.

June 3, 2017 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, May 31, 2017

Second Circuit affirms convictions and LWOP sentence for Silk Road creator Ross Ulbricht

The Second Circuit today released a 139-page panel opinion in US v. Ulbricht, No. 15-1815 (2d Cir. May 31, 2017) (available here), which starts this way:

Defendant Ross William Ulbricht appeals from a judgment of conviction and sentence to life imprisonment entered in the United States District Court for the Southern District of New York (Katherine B. Forrest, J.).  A jury convicted Ulbricht of drug trafficking and other crimes associated with his creation and operation of Silk Road, an online marketplace whose users primarily purchased and sold illegal goods and services.  He challenges several aspects of his conviction and sentence, arguing that (1) the district court erred in denying his motion to suppress evidence assertedly obtained in violation of the Fourth Amendment; (2) the district court committed numerous errors that deprived him of his right to a fair trial, and incorrectly denied his motion for a new trial; and (3) his life sentence is both procedurally and substantively unreasonable.  Because we identify no reversible error, we AFFIRM Ulbricht’s conviction and sentence in all respects.

The sentencing discussion covers roughly the last 25 pages of this lengthy unanimous panel opinion, and it includes a number of notable passages while covering a lot of notable ground. Here are just a few highlights of an opinion that sentencing fans and drug policy folks should read in full:

Ulbricht’s only claim of procedural error is that it was improper for the district court to consider six drug-related deaths as relevant to his sentence because there was insufficient information connecting them with drugs purchased on Silk Road.  In terms of our sentencing jurisprudence, Ulbricht claims that the district court relied on clearly erroneous facts in imposing sentence.  We are not persuaded....

[I]t was certainly appropriate for the district court to consider the risk of death from use of drugs in assessing the seriousness of the offense conduct, one of the factors that a judge must consider in imposing sentence.  See 18 U.S.C. § 3553(a)(2)(A).  That appears to be the only way the judge in this case used the evidence of the drug-related deaths. Emotionally wrenching as the statements of the decedents’ parents were, we cannot and do not assume that federal judges are unable to put their sympathies for particular victims to one side and assess the evidence for its rational relationship to the sentencing decision. And here, the record makes clear that the district court did not use the evidence of the drug-related deaths to enhance Ulbricht’s sentence, either as a formal matter under the Guidelines or otherwise....

[W]hile a life sentence for selling drugs alone would give pause, we would be hard put to find such a sentence beyond the bounds of reason for drug crimes of this magnitude. But the facts of this case involve much more than simply facilitating the sale of narcotics. The district court found by a preponderance of the evidence that Ulbricht commissioned at least five murders in the course of protecting Silk Road’s anonymity, a finding that Ulbricht does not challenge in this appeal.  Ulbricht discussed those anticipated murders callously and casually in his journal and in his communications with the purported assassin Redandwhite....

Ulbricht and amici point out that life sentences are rare in the federal system, typically reserved for egregious violent crimes, thus rendering Ulbricht’s sentence substantively unreasonable.  Moreover, according to amici, life sentences are normally imposed in cases where that is the district judge’s only sentencing option.  Thus, they claim that Ulbricht’s life sentence is substantively unreasonable in the context of the federal system, where life sentences are particularly rare for those with no criminal history who are convicted of drug crimes.

We agree with Ulbricht that life sentences are extraordinary and infrequent, which is as it should be.  But the rarity of life sentences does not mean that the imposition of such a sentence in this case is substantively unreasonable under our law.  Each case must be considered on its own facts and in light of all of the circumstances of a particular offense as well as other relevant conduct, which, in this case, includes five attempted murders for hire.  As we have described, the district court carefully considered Ulbricht’s offense, his personal characteristics, and the context for his crimes, recognizing that only exceptional cases justify such a severe sentence. Although we might not have imposed the same sentence ourselves in the first instance, on the facts of this case a life sentence was “within the range of permissible decisions” that the district court could have reached. 

A few prior related posts:

May 31, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (6)

Monday, May 22, 2017

"Sentencing Synthetic Cannabinoid Offenders: 'No Cognizable Basis'"

The title of this post is the title of this short notable piece by Brad Gershel now available via SSRN. Here is the abstract:

Application of the United States Sentencing Commission Guidelines (“Guidelines”) to smokable synthetic cannabinoids (“SSC”) produces distinct but familiar inequities in the criminal justice system.  Calling to mind the crack-to-cocaine disparity that belied the rights of countless defendants, the federal government has yet to rectify a Guidelines rule that was promulgated without scientific basis or empirical support.  As prosecutions for SSC accelerate — and in the absence of swift and meaningful reform — federal courts will continue to sentence defendants via a base-offense range that was never justified.

May 22, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, May 21, 2017

Reactions to Sessions Memo on DOJ charging/sentencing policies keep on coming

I highlighted in this post and this post some of the early reactions to the new charging and sentencing memorandum released earlier this month by Attorney General Jeff Sessions (basics here). Reactions in various forms and formats just keep on coming, so here I will highlight a few more from various authors and outlets that struck me as worth noting:

From CNN here, "State AGs to Sessions: Rescind criminal charging guidance"

From Crime & Consequences here, "Restoration of Honesty: Jeff Sessions' Charging Instructions"

From The Crime Report here, "Memo to Sessions: Why Treatment for Drug Addiction Makes More Sense Than Prison"

From The Federalist here, "Sessions Has Neither The Authority Nor The Evidence To Pursue A New Drug War"

From Law360 here, "Sessions Memo Could Create Friction In Plea Negotiations"

From the New York Daily News here, "The true toughness Jeff Sessions must show"

From the New York Law Journal here, "The Sessions Memo: Back to the Past?"

Prior recent related posts: 

UPDATE: A helpful reader pointed out this Washington Post commentary from a former US Attorney headlined "Jeff Sessions to federal prosecutors: I don’t trust you." It starts this way:

Last week Attorney General Jeff Sessions announced policy changes directing federal prosecutors to charge people suspected of crime with the “most serious, readily provable offense” available in every federal case.  In doing so, he promised that prosecutors would be “un-handcuffed and not micromanaged from Washington.”

That justification is laughable.  In actuality, the announcement demonstrates a stunning lack of faith in the decisions of line-level prosecutors.  It imposes — rather than removes — the handcuffs for prosecutors, returning us to the policy of the 1990s and 2000s, when incarceration and corrections spending spiked without a measurable impact on drug use or public safety.

May 21, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, May 19, 2017

You be the federal judge: what sentence for former Rep Anthony Weiner for "transferring obscene material to a minor"?

As detailed in this New York Times article, "Anthony D. Weiner, the former Democratic congressman whose “sexting” scandals ended his political career and embroiled him in a tumultuous F.B.I. investigation of Hillary Clinton before the election, is to appear in a federal courtroom in Manhattan on Friday to enter a guilty plea." Here are more of the basics:

Mr. Weiner will plead guilty to a single charge of transferring obscene material to a minor, pursuant to a plea agreement with the United States attorney’s office in Manhattan, one of the people said. Mr. Weiner surrendered to the F.B.I. early Friday morning.  The federal authorities have been investigating reports that, beginning in January 2016, Mr. Weiner, then 51, exchanged sexually explicit messages with a 15-year-old girl in North Carolina.

The plea covers conduct by Mr. Weiner from January through March of last year, the person said.  A likely result of the plea is that Mr. Weiner would end up as a registered sex offender, although a final determination has yet to be made, the person added.

The charge carries a potential sentence of between zero and 10 years in prison, meaning Mr. Weiner could avoid prison.  The ultimate sentence would be determined by a judge.

Reports of the federal investigation surfaced in September after a British newspaper, The Daily Mail, reported that Mr. Weiner had engaged in an online relationship with the girl, which included explicit messages sent over social media and suggestive texts.

It was during the investigation that the F.B.I. seized Mr. Weiner’s electronic devices, including a laptop computer on which agents found a trove of emails to his estranged wife, Huma Abedin, a top aide to Mrs. Clinton.  That discovery led to the surprise announcement in late October by James B. Comey, then the F.B.I. director, that the bureau was conducting a new investigation into Mrs. Clinton’s handling of official email, an inquiry that ended two days before the election, with no charges brought....

The Daily Mail article said that Mr. Weiner began exchanging messages with the girl when she was a high school sophomore and that the messages indicated that Mr. Weiner knew that she was underage.  The newspaper, which did not identify the girl, said she did not want to press charges “because she believes her relationship with Weiner was consensual.” The paper said that she and her father agreed to be interviewed “out of concern that Weiner may be sexting with other underage girls.”

Mr. Weiner was forced to resign from Congress, where he represented parts of Queens and Brooklyn, in June 2011, not long after an explicit picture, sent from his Twitter account, became public.  Mr. Weiner initially claimed that his account had been hacked but eventually admitted that he had lied and that he had sent the image and had inappropriate online exchanges with at least six other women.

As the title of this post is meant to suggest, my mind reels with all the possible "relevant conduct" that could be argued for guidelines calculation purposes as well as with all the ways to characterize Weiner's "history and characteristics" for purposes of the broader 3553(a) sentencing analysis. Until I see some more details about the offense conduct to which Weiner is pleading guilty, I am disinclined to make any prediction or even a guess about what sentence I would expect Weiner will get from a federal district judge. But I can already safely predict this will be a very interesting sentencing to watch and a very challenging one for the judge.

But perhaps readers would not find it very challenging and would like to share their views in the comments. Try to keep it clear and repsectful and perhaps even funny on a Friday.

May 19, 2017 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (27)

Wednesday, May 17, 2017

Terrific effort to sort out "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?"

In this post earlier this week, I talked through the challenge of figuring out the import and impact of the new Sessions Memo on federal charging/sentencing by stressing  uncertainty concerning the impact of various charging memos released by former Attorney General Eric Holder.   Jacob Sullum is carrying forward this effort quite effectively this morning in this terrific new Reason posting asking "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?".   Here are highlights:

For critics of the war on drugs and supporters of sentencing reform, the policy shift that Attorney General Jeff Sessions announced last Friday is definitely a change for the worse. But it's not clear exactly how bad the consequences will be, partly because the impact of the policy he reversed, which was aimed at shielding low-level, nonviolent drug offenders from mandatory minimum sentences, is hard to pin down.

Sessions rescinded a 2013 memo in which Attorney General Eric Holder encouraged federal prosecutors to refrain from specifying the amount of drugs in cases involving nonviolent defendants without leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations. Since mandatory minimums are tied to drug weight, omitting that detail avoids triggering them.

Numbers that the Justice Department cited last year suggest Holder's directive, which was the heart of his Smart on Crime Initiative, had a substantial effect on the percentage of federal drug offenders facing mandatory minimums. According to data from the U.S. Sentencing Commission (USSC), the share of federal drug offenders subject to mandatory minimums has fallen steadily since Holder's memo, from 62 percent in fiscal year 2013 to less than 45 percent in fiscal year 2016. If the percentage had remained the same, more than 10,000 additional drug offenders would have fallen into that category during this period.

"The promise of Smart on Crime is showing impressive results," Deputy Attorney General Sally Q. Yates said last year, citing the USSC numbers through fiscal year 2015. "Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders."

Counterintuitively, however, the defendants whom the USSC describes as "drug offenders receiving mandatory minimums" include drug offenders who did not actually receive mandatory minimums. Many of them were convicted under provisions that call for mandatory minimums yet escaped those penalties because they offered "substantial assistance" or qualified for the statutory "safety valve."

Paul Hofer, a policy analyst at Federal Public and Community Defenders, took those other forms of relief into account in a 2013 estimate of the Holder memo's possible impact.... Hofer's analysis suggests that the vast majority of drug offenders who seem to have benefited from the 2013 memo—thousands each year—did not actually receive shorter sentences as a result of the policy change.

Then again, the benefits of Holder's memo may extend beyond the federal defendants who avoided mandatory minimums. By encouraging prosecutors to focus their efforts on the most serious drug offenders, Holder may have indirectly reduced punishment by allowing some people to avoid federal charges altogether. That instruction may help explain why the total number of federal drug cases fell from 25,000 in fiscal year 2013 to 21,387 in fiscal year 2016, a 14 percent drop.

As Molly Gill, director of federal legislative affairs at Families Against Mandatory Minimums, points out, there is some evidence that federal prosecutors did try to focus on the most serious cases: During the same period, the share of defendants benefiting from the safety valve (which excludes high-level and violent offenders) fell from 24 percent to 13 percent. "With the directive not to slam low-level drug defendants," says University of California at Irvine criminologist Mona Lynch, "there was likely some shift toward bringing more serious cases and simply passing on smaller, street-dealing type of cases."

Sessions is now telling federal prosecutors to pursue the most serious provable charges against drug offenders (and other federal defendants) unless they believe an exception to that policy is warranted, in which case they have to seek permission from their supervisors and justify the decision in writing. Although Sessions argues that the new default rule will produce more uniform results, Lynch thinks it could have the opposite effect.

"The big question is whether he has the power to roll back time and change the prevailing legal culture that has tempered the 'drug war' mentality of the 1990s in many federal jurisdictions," says Lynch, who studied the behavior of federal prosecutors for her 2016 book Hard Bargains: The Coercive Power of Drug Laws in Federal Court. "Even under a more stringent set of charging policies…U.S. attorneys have considerable discretion as to what cases to bring….This policy may only increase the divide between jurisdictions that collectively eschew aggressive federal drug prosecutions and those that dive back into the harsh practices of an older era. This would result in even more geographic disparity in federal justice outcomes, a longstanding concern of Congress and of the U.S. Sentencing Commission."

Prior recent related posts: 

May 17, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, May 15, 2017

One last chance to RSVP for "Behind the Bench: The Past, Present, and Future of Federal Sentencing"

FSRAs mentioned in this prior post, I will be attending this exciting afternoon event, titled "Behind the Bench: The Past, Present, and Future of Federal Sentencing," which is taking place this Wednesday (5/17) in Washington DC.  I considered the event quite timely when I posted about it last week, but the discussions generated by Attorney General Jeff Sessions new charging memo for federal prosecutors only serves to add an extra-timely dimension to the topics to be discussed.

As mentioned before, this event emerges from a thoughtful and provocative federal sentencing reform proposal put forward by current Acting US Sentencing Commission Chair Judge William Pryor (in part because that he graciously allowed this proposal to published in the Federal Sentencing Reporter).  Through my work with FSR, I played a small  role in getting this event off the ground, and here is the event's description from this webpage where one can register to attend:

Thirty years ago, the U.S. Sentencing Commission established the first-ever set of federal sentencing guidelines. Those initial Guidelines received a chilly reception as more than 200 federal judges found them unconstitutional.  Although the Supreme Court’s United States v. Booker decision in 2005 upheld the basic structure of the Guidelines, it recast them as “effectively advisory” to allow judges to continue applying the Guidelines consistent with new Sixth Amendment jurisprudence.

The Booker ruling stated Congress was free to devise a different system moving forward.  More than a dozen years and nearly a million federal sentences later, Congress has yet to act despite diverse criticisms of the Supreme Court’s advisory sentencing scheme.  This spotlights an enduring question: What is the proper relationship between the legislative and judicial branches in determining sentencing policy?

On May 17, please join the Charles Koch Institute, the Federal Sentencing Reporter, and the Law & Economics Center at George Mason University Antonin Scalia Law School as we explore this question and discuss how we can learn from the past to improve present and future federal sentencing policy.

KEYNOTE SPEAKER: Judge William H. Pryor

MODERATED DISCUSSION: Judge Ricardo H. Hinojosa and Judge Patti B. Saris

MODERATOR: Vikrant P. Reddy

Date: May 17

Time: 12:00 pm - 2:45 pm

I have been told that there is still a little bit of the limited space available, so folks interested in attending what ought to be a very interesting afternoon of federal sentencing discussion should still be sure to register via this webpage ASAP.

May 15, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, May 14, 2017

Some more notable reactions to the Sessions Memo

I highlighted in this prior post some first-cut reactions to the new charging and sentencing memorandum released yesterday by Attorney General Jeff Sessions (basics here). Now I will highlight a few more I have seen:

From NBC News here, "Attorney General Sessions Charts Course Back to Long Drug Sentences"

From BuzzFeed News here, "Former Federal Judges Say Sessions’ New Policy Will Take Power Away From The Courts"

Also from BuzzFeed News here, "Republicans And Democrats Are Blasting The "Dumb On Crime" Sessions Order For Tougher Sentencing"

From the Wall Street Journal here, "As Jeff Sessions Pushes for Tougher Drug Sentences, Previous Policy Gets Mixed Grades"

From the Washington Examiner here, "Former US attorneys hate Jeff Sessions' memo on tougher sentences"

Prior recent related posts: 

May 14, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Saturday, May 13, 2017

Former LA Sheriff gets three years in federal prison after obstruction convictions connected to corruption scandal involving county jails

This Los Angeles Times article, headlined "Ex-L.A. County Sheriff Lee Baca sentenced to three years in prison in jail corruption scandal," effectively reports on the final federal sentence handed down late yesterday to a high-profile former law enforcement official. Notably, as discussed below, the defendant here had a much more lenient plea deal rejected, was nearly acquitted at a trial, and ultimately got a prison term 50% longer than what prosecutors recommended.  Here are the details:

Former Los Angeles County Sheriff Lee Baca, once a towering, respected figure in policing, was sentenced Friday to three years in federal prison for his role in a scheme to obstruct an FBI investigation of abuses in county jails, marking an end to a corruption scandal that has roiled the Sheriff’s Department for several years.

U.S. District Judge Percy Anderson announced Baca’s fate in a downtown courtroom filled with loyal supporters on one side and the FBI agents and prosecutors who ensnared him on the other. Baca, 74 and suffering from the early stages of Alzheimer’s disease, showed no emotion as the decision was read. Before issuing the sentence, Anderson, who has dealt unsparingly with the former sheriff throughout his legal battle and last year threw out a plea deal that would have sent Baca to prison for no more than six months, unleashed a scathing rebuke of the man who ran one of the nation’s largest law enforcement agencies for 15 years.

Excoriating Baca’s refusal to accept responsibility for having overseen and condoned the obstruction ploy carried out by subordinates, the judge portrayed him as a man driven by his desire to protect his own reputation and maintain control over the Sheriff’s Department. “Your actions embarrass the thousands of men and women [in the department] who put their lives on the line every day,” Anderson said to Baca. “They were a gross abuse of the trust the public placed in you.”

The prison term, Anderson added, should serve as a deterrent to other public servants. “Blind obedience to a corrupt culture has serious consequences,” he said. “No person, no matter how powerful, no matter his or her title, is above the law.”

Baca was ordered to surrender to federal prison officials by July 25. Although he is expected to ask to remain free on bail while he pursues an appeal, it is an open question whether he will be allowed to do so. Anderson denied the same request from Baca’s second in command, former Undersheriff Paul Tanaka, who was forced to begin his five-year sentence....

In going after Baca, a team of prosecutors headed by Assistant U.S. Atty. Brandon Fox meticulously worked its way up the department’s ranks, charging lower-level figures and members of Baca’s command staff before bringing charges of obstruction of justice, conspiracy and lying against the sheriff himself.

He is the ninth person to be convicted and sentenced to prison as part of what Fox convinced several juries was a cunning conspiracy to interfere with FBI agents as they worked to gather evidence for a grand jury investigation into allegations of widespread abuse by deputies working in county jails run by the sheriff’s department. A 10th conspirator, former sheriff’s Capt. William “Tom” Carey, pleaded guilty in a deal with prosecutors and testified against Baca. Carey is scheduled to be sentenced later this month. Several other deputies were convicted in a series of trials for beating inmates or helping to cover up the abuse....

Baca’s attorney, Nathan Hochman, nearly won Baca an acquittal at a trial late last year by hammering the government for the scarcity of hard evidence tying Baca directly to the obstruction plan. That proceeding ended in a mistrial when the jury deadlocked with all but one juror voting to acquit Baca. For the second trial, however, Fox revamped his case and Anderson issued a string of rulings that hamstrung Hochman. All along, Hochman argued that while Baca was upset by the FBI investigation, he never authorized anything illegal. Tanaka, he said, was the ringleader who carried out the obstruction without Baca’s knowledge.

In giving Baca three years in prison, Anderson struck a middle ground of sorts. Federal sentencing guidelines called for a term of 41 to 51 months. Under normal circumstances, the government would have urged Anderson to come down within that range, Fox wrote in court filings.

But Baca’s age, his diagnosis last year with Alzheimer’s and medical experts’ expectation that his mind will have deteriorated badly within a few years were legitimate mitigating factors in determining his punishment, Fox said. “The interests of justice will not be served by defendant spending many years behind bars in a severely impaired state,” the prosecutor wrote. He recommended that Baca be sentenced to two years in prison.

Hochman, meanwhile, urged Anderson in court papers and again on Friday to spare Baca any time in prison, saying he should instead be confined to his home for a period of time and perform community service. In a lengthy last-ditch bid for leniency, Hochman reviewed Baca’s nearly five decades of service in the sheriff’s department, saying he served “with distinction and honor.”

The true measure of the man, Hochman insisted, was seen in the the education programs he started as sheriff for inmates and at-risk youth. Hochman submitted to Anderson letters from a few hundred of Baca’s supporters, including former Gov. Arnold Schwarzenegger and several local religious leaders. The inevitable toll from Alzheimer’s was another reason to spare him prison, Hochman said. “This diagnosis is a sentence of its own. It is a sentence that will leave him a mere shell of his former self and one that will rob him of the memories of his life,” he wrote in a court filing.

Anderson rejected out of hand the idea that Baca should avoid time in prison. He acknowledged Baca’s lengthy record as a public servant, but said it made his crimes more perplexing. "Mr. Baca's criminal conduct is so at odds with the public image he carefully crafted,” Anderson said. Like old B-movies, "you seem to have your own version of the good cop/bad cop routine … that allowed you to keep your hands clean but did not make you any less culpable.”

While the two-year sentence suggested by the government was not enough in Anderson’s eyes, the judge said he did take Baca’s failing health and career into account. Absent those factors, he said he would have imposed on Baca the same five-year sentence he gave Tanaka.

The sentence deepens the stain already imprinted on Baca’s legacy and the reputation he enjoyed as one of the nation’s most visible and respected reformers in law enforcement. While quirky to the point of being enigmatic, Baca was seen as a champion of progressive ideas, including the need for police to build strong ties to minority communities. He stepped down in 2014 with the department engulfed in the jail scandal.

May 13, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Friday, May 12, 2017

Some notable first-cut reactions to the Sessions Memo

The Hill already has two articles reporting on some notable reactions to the new Sessions Memo.  The reactions are not surprising, but they are still interesting:

Obama AG slams Sessions for shift to harsher sentencing

GOP senator: Sessions's push for tougher sentences highlights 'injustice'

Eric Holder is the AG referenced in the headline of the first article, and Senator Rand Paul is the one referenced in the headline of the second one. Senators Mike Lee and Tom Cotton also are quoted in the second article, and long time readers of this blog can likely guess the nature of their takes on the Sessions Memo.

Last but certainly not least, Bill Otis has reactions here at Crime & Consequences under the heading "Jeff Sessions Returns DOJ to Sound Charging Policy." Here are choice excerpts (emphasis in original):

This has been reported as "new" guidance, but it's not. It's the return of the "most serious readily provable" standard that governed charging policy during most of my 18-year tenure in the US Attorney's Office, a tenure that ended last century. The policy continued during the George W. Bush Administration.

It was right then and it's right now. It amounts to telling prosecutors to charge what the defendant actually did. This is so obviously correct -- aligning the allegations with the facts -- that I have a hard time seeing any serious objection to it.

It does allow exceptions -- that is, in practice, more lenient charging -- in unusual cases. That too seems obviously correct, together with the Attorney General's caveat that such cases must, indeed, be out of the heartland, and the reasons for leniency should be documented and approved by a more senior AUSA or the USA himself. This prevents inattentive, inexperienced or irresolute AUSA's from doing their own thing (or being bullrushed by an aggressive or smooth-talking defense lawyer).

On its face, this policy is not that much of a change from the one Eric Holder adopted, but there is an important change in emphasis and purpose....

It will be attacked by the Left as likely to produce longer sentences. That's probably so. However, there is a ready mechanism by which such sentences can be avoided: Mr. Nicey might consider quitting the smack business and getting a normal job like everybody else. I'm just not a partisan of the notion that it's always the public that has to change. Instead, in both practical and moral senses, we'll be better off when we insist that it's the criminal who has to change. We don't need less serious charging. We need less crime.

Criminals make choices. We should give them enhanced incentives to make better ones, for them and for us. The Attorney General's directive does just that.

Prior recent related post: 

May 12, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (28)

Wednesday, May 10, 2017

"Behind the Bench: The Past, Present, and Future of Federal Sentencing"

The title of this post is the name of this exciting afternoon event taking place next week in Washington DC.  The event emerges from a thoughtful and provocative federal sentencing reform proposal put forward by current Acting US Sentencing Commission Chair Judge WIlliam Pryor (in part because that he graciously allowed this proposal to published in the Federal Sentencing Reporter).  Through my work with FSR, I played a small  role in getting this event off the ground, and here is the event's description from this webpage where one can register to attend:

Thirty years ago, the U.S. Sentencing Commission established the first-ever set of federal sentencing guidelines. Those initial Guidelines received a chilly reception as more than 200 federal judges found them unconstitutional.  Although the Supreme Court’s United States v. Booker decision in 2005 upheld the basic structure of the Guidelines, it recast them as “effectively advisory” to allow judges to continue applying the Guidelines consistent with new Sixth Amendment jurisprudence.

The Booker ruling stated Congress was free to devise a different system moving forward.  More than a dozen years and nearly a million federal sentences later, Congress has yet to act despite diverse criticisms of the Supreme Court’s advisory sentencing scheme.  This spotlights an enduring question: What is the proper relationship between the legislative and judicial branches in determining sentencing policy?

On May 17, please join the Charles Koch Institute, the Federal Sentencing Reporter, and the Law & Economics Center at George Mason University Antonin Scalia Law School as we explore this question and discuss how we can learn from the past to improve present and future federal sentencing policy.

KEYNOTE SPEAKER: Judge William H. Pryor

MODERATED DISCUSSION: Judge Ricardo H. Hinojosa and Judge Patti B. Saris

MODERATOR: Vikrant P. Reddy

Date: May 17

Time: 12:00 pm - 2:45 pm

I have been told that space is limited so folks interested in attending what ought to be a very interesting afternoon of federal sentencing discussion ought to be sure to register via this webpage ASAP.

May 10, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

US Sentencing Commission releases first issue in new series "Case Law Quarterly"

Via email, I learned that the US Sentencing Commission has released this first installment of a new publication series going by the name "Case Law Quarterly." Here is how this first publication (which runs six detailed pages) describes itself:

CASE LAW QUARTERLY provides brief summaries of select appellate court decisions issued each quarter of the year that involve the guidelines and other aspects of federal sentencing.  The list of cases and the summaries are not intended to be comprehensive. Instead, this document summarizes only a few of the relevant cases, focusing on selected sentencing topics that may be of current interest.  The Commission’s legal staff publishes this document to assist in understanding and applying the sentencing guidelines.  The information in this document does not necessarily represent the official position of the Commission, and it should not be considered definitive or comprehensive.

May 10, 2017 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Tuesday, May 09, 2017

Dance Mom star Abby Lee Miller gets "a year and a day" for bankruptcy fraud

Today's celebrity federal sentencing news involves former "Dance Moms" reality TV star Abby Lee Miller, whose case is covered in hard-hitting fashion here via E! Online

Two years after her indictment, Abby Lee Miller has officially learned her legal fate.  The reality star, who rose to fame on the Lifetime series Dance Moms, was sentenced to one year and one day in prison followed by two years of supervised release on Tuesday, according to several reporters in the court room.  She was also reportedly fined $40,000 and ordered to pay a $120,000 judgment. She has 45 days to report to prison.

"It's a very serious situation when someone who files for bankruptcy isn't truthful with the court," Judge Joy Flowers Conti told the reality star in court.

The 50-year-old dance instructor was initially indicted in 2015 on 20 charges of bankruptcy fraud, concealment of bankruptcy assets and false bankruptcy declarations after the FBI, IRS and postal inspectors conducted an investigation.  She allegedly hid more than $755,000 in other bank accounts, income reportedly stemming from appearances on the show in 2012 and 2013....

In June 2016, Lee Miller pleaded guilty to concealing bankruptcy assets, as confirmed to E! News. Miller also pleaded guilty to one count of not reporting an international monetary transaction. In March, she also announced she was walking away from the longtime TV series.

While appearing in court Tuesday, she told the judge she was ashamed to be meeting this way and that she wished the judge could have taken her class. Lee Miller ultimately got teary eyed as she expressed regret for her actions. "I am very sorry for what I've done," she said, according to reporters. "My name has been dragged through the mud."

Prior related post:

May 9, 2017 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (1)

Monday, May 08, 2017

US Sentencing Commission releases report providing overview of FY 2016 federal sentencing cases

Fig1_fy16overviewThe US Sentencing Commission just released this helpful and relatively brief data report titled simply "Overview of Federal Criminal Cases Fiscal Year 2016."  Among other useful realities, this report provides a certain kind of data marker for the end of the "Obama era" for federal caseload and sentencing patterns.  (The chart reprinted here from the report shows how the number of persons federal sentenced significantly increased during Obama's first term and significantly decreased during Obama's second term.) Here is the overview of the USSC report and key findings via this USSC webpage:

The United States Sentencing Commission received information on 67,874 federal criminal cases in which the offender was sentenced in fiscal year 2016. Among these cases, 67,742 involved an individual offender and 132 involved a corporation or other “organizational” offender. The Commission also received information on 11,991 cases in which the court resentenced the offender or modified the sentence that had been previously imposed. This publication provides an overview of those cases.

Key Findings

A review of cases reported to the Commission in fiscal year 2016 reveal the following:

  • The 67,742 individual original cases reported to the Commission in fiscal year 2016 represent a decrease of 21.4% since fiscal year 2011, the year in which the largest number of offenders were sentenced. Drug cases continued to be the most common type of federal case, accounting for 31.6% of all cases.

  • Methamphetamine offenses continued to be the most common drug cases, representing 30.8% of all drug crimes.  The proportion of methamphetamine cases has increased substantially since fiscal year 1994, when those cases accounted for only 6.4% of all drug cases.

  • Just under half (44.5%) of all drug offenders were convicted of an offense carrying a mandatory minimum penalty; however, this proportion was the lowest it has been since fiscal year 1993.

  • Immigration cases were the second most common, accounting for 29.6% of the total federal caseload.  In fiscal year 2011, immigration cases were the most common federal crime — however, since that year the number of these cases has steadily declined.

  • Crimes involving firearms were the third most common offense, accounting for 10.8% of the total number of federal criminal convictions in fiscal year 2016.  The average sentence imposed in firearms cases was 75 months.

  • There were 6,517 fraud cases in fiscal year 2016, accounting for 9.6% of the total federal caseload; however, this number represents a 12.2% reduction from the year before.

May 8, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Tuesday, May 02, 2017

After his guilty plea to a civil rights offense, what federal guideline range and ultimate sentence will Michael Slager face for killing Walter Scott?

As reported in this ABC News piece, "police officer Michael Slager pleaded guilty today to a federal civil rights offense in the shooting death of unarmed black man Walter Scott, bringing a conclusion to the case two years after the police shooting was caught on video by a bystander."  Here are more of the case processing basics: 

Slager pleading guilty to violating Scott's civil rights in federal court this afternoon will end the federal case against him and also resolve the state charges that were still pending after a mistrial was declared in the state murder trial last year. Slager's mother and Scott's mother both wept in court as the 35-year old former cop was led away in handcuffs.

Slager, dressed in a gray suit, said very little, answering "yes" to each of the judge's questions about whether he was aware of the various rights he was surrendering.  Slager's attorney, Andrew Savage, said in a statement before court, "We hope that Michael’s acceptance of responsibility will help the Scott family as they continue to grieve their loss."...

Slager, who is white, was accused of killing Scott, an unarmed black man, at a traffic stop on April 4, 2015, while Slager was an officer with North Charleston's police department.  Video that surfaced shortly after the encounter appears to show the moment Slager fatally shot Scott as he ran away. The video garnered national attention, propelling Slager into the spotlight.  He was fired from the force after the shooting.

Slager was charged in South Carolina with murder and pleaded not guilty.  The case ended in a mistrial in December 2016 and the retrial was expected to take place this year.  The federal trial had been expected to take place later this month.  The Justice Department said in a statement today that, according to documents filed in connection with the guilty plea, Slager "willfully used deadly force on Walter Scott even though it was objectively unreasonable under the circumstances."...

Slager has not yet been sentenced and the sentence is at the discretion of the judge, Wilson said. Slager faces a maximum sentence of life in prison for the federal civil rights violation as well as a potential $250,000 fine, the Department of Justice said.

For those thinking about the sentence that Slager can and will face, the plea agreement put together in the case foreshadows some of the likely guidelines action. Specifically, here is what Section 5 of the plea agreement says (with my emphasis added):

The parties request that the Court apply the United States Sentencing Guidelines (Guidelines) to calculate the applicable sentence and impose a sentence consistent with the Guidelines and 18 U.S.C. § 3553. The defendant agrees to waive all constitutional challenges to the validity of the Guidelines.  The defendant understands and acknowledges that the Court will find, by a preponderance of the evidence, the facts used to determine the offense level and, that in making its findings, the Court may consider any reliable evidence, including hearsay. Nothing in this section prevents the parties from filing objections to the Presentence Report prepared by the United States Probation Office, or from arguing the application of specific sections of the Guidelines.  The parties agree that the Court will determine the final Guideline range.  The parties understand that this Plea Agreement binds the parties only and does not bind the Court. The defendant understands that the government will advocate for the Court to apply the guidelines for Second Degree Murder and Obstruction of Justice, and reserves the right to seek a guidelines sentence, up to and including a sentence of life imprisonment.   The defendant reserves the right to advocate for any sentence he deems appropriate and the right to request a downward departure and/or downward variance.

Based on my understanding of this bolded sentence, it would appear the government will advocate for these basic guideline calculations: base level of 38 (for 2d degree murder) + 2 (for obstruction) - 3 (for acceptance of responsibility) = offense level of at least 37.  (I say "at least" 37 for the offense level because some victim-related or other chapter 3 enhancements might be deemed applicable, and the last part of this bolded sentence hints that the government may think other enhancements are applicable.) 

At offense level 37, Slager as a first offender would be looing at a guideline range of 210 to 262 month (17.5 to 21.8 years).  Arguably, the bolded language would preclude the government from seeking a departure or variance above whatever is determined to be the calculated guideline range.  And one can reasonably expect Slager and his defense team will seek a downward departure or variance, though what exact sentence the defense will seek is an interesting issue to watch as sentencing approaches.

May 2, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (21)

Monday, May 01, 2017

"Unwarranted Disparity: Effectively Using Statistics in Federal Sentencing"

The title of this post is the title of this recent practitioner-oriented piece authored by Alan Ellis and Mark Allenbaugh. Here is its introduction:

Now in their 30th year, the U.S. Sentencing Guidelines (Guidelines) have been used to sentence well over 1.5 million defendants nationwide since Nov. 1, 1987, when they first went into effect. (See U.S. Sentencing Comm’n, 1996-2015 Sourcebooks on Federal Sentencing Statistics, Tbl. 10; U.S. Sentencing Comm’n, Quarterly Data Report (4th Quarter Release), Tbl. 1 (Sept. 30, 2016).  From these sources, there were approximately 1.4 million individuals sentenced under the Guidelines.)

Eliminating unwarranted sentencing disparity was the primary goal of the Sentencing Reform Act. (See U.S. Sentencing Comm’n, Fifteen Years of Guidelines Sentencing, 79 (2004)). The act created the U.S. Sentencing Commission (Commission), tasking it with the creation of the Guidelines, and the authority to amend and promulgate new Guidelines from time to time. (See 28 U.S.C. § 994).

Since their inception, the Guidelines have been amended hundreds of times.  This process largely has been informed by the data the Commission collects, publishes and analyzes regarding the application of the Guidelines, including sentences imposed, and departures or variances.  Although in many instances the Commission has been directed by Congress to make certain changes.  In short, the Guidelines have evolved primarily, although not exclusively, as a result of the Commission’s ‘‘empirical approach’’ to sentencing. (See USSG, Ch. 1, Pt. A.)

The purpose of this article is to provide the reader with an overview of what data are available, and to provide suggestions as to how the data may most effectively be used by practitioners in mitigation of punishment.

May 1, 2017 in Data on sentencing, Federal Sentencing Guidelines | Permalink | Comments (2)

Sunday, April 30, 2017

A rare year without any formal amendments to the US Sentencing Guidelines

Download (1)Hard-core federal sentencing nerds like me know that the end of April/start of May is the time period each year when the US Sentencing Commission submits formal guideline amendments to Congress.  And, as noted in this post from December, just before a number of Commissioners' terms expired, the USSC unanimously voted to publish some ambitious proposed amendments for 2017.

But, is seems personnel transitions mean 2017 will go in the books as one of the rare years without any formal amendments to the guidelines. Acting USSC Chair Judge William Pryor explained why in these remarks given before the start of the USSC public hearing a few weeks ago:

Although the Commission again has the four voting members required to promulgate guideline amendments, the lack of a voting quorum for almost three critical months of our amendment cycle means we will not be able to promulgate amendments this year.  Those who closely follow us know that in December, we voted to publish several proposed amendments for comment, among them an amendment that would add a downward adjustment and encourage the use of alternatives for some first-time offenders, and amendments that would respond to recommendations made by the Tribal Issues Advisory Group regarding how tribal offenses and juvenile sentences are considered.

The public comment period has closed.  We received a great deal of thoughtful public comment, which can be reviewed on our website.  We thank the public for taking the time to give careful consideration to these proposals.

Ordinarily, we would have received testimony about the proposed amendments at a public hearing in March.  But with only two voting commissioners we deferred scheduling a hearing until a reconstituted Commission was formed.

By statute, the Commission is required to submit any amendments to the guidelines to Congress by May 1st for a 180-day congressional review period.  Because we did not have a voting quorum for almost three months, there simply is not enough time for us to schedule a public hearing on the proposed amendments, digest the public comment, deliberate, and hold a public vote by the statutory deadline.  Therefore, this year we will not promulgate any amendments to the guidelines.  But our data analysis, legal research, and public comment on these proposed amendments should provide us a sound basis for considering guideline amendments as early as possible during the next amendment cycle.

April 30, 2017 in Criminal Sentences Alternatives, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Thursday, April 27, 2017

"Mandatory Minimum Policy Reform and the Sentencing of Crack Cocaine Defendants: An Analysis of the Fair Sentencing Act"

The title of this post is the title of this notable new article by David Bjerk just published by the Journal of Empirical Studies. Here is the abstract:

The Fair Sentencing Act of 2010 (FSA) affected the U.S. federal mandatory minimum sentencing laws for crack cocaine offenders, and represented the first congressional reform of sentencing laws in over 20 years.  A primary goal of this legislation was to lessen the harshness of sentences for crack cocaine offenders and decrease the sentencing gap between crack defendants and powder cocaine defendants.  While the mean sentence length for crack offenders fell following the implementation of the FSA, these changes appear to primarily reflect the continuation of ongoing sentencing trends that were initiated by a variety of noncongressional reforms to federal sentencing policy that commenced around 2007.  However, the FSA appears to have been helpful in allowing these trends to continue past 2010.

April 27, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact | Permalink | Comments (0)

Wednesday, April 26, 2017

Noting reasons for the recent drop in the federal prison population mitigating overcrowding at BOP facilities

The US Courts yesterday posted this notable short piece under the heading "Policy Shifts Reduce Federal Prison Population." The piece details the significant decline in the federal prison population in the last few years and also highlights reasons for it:

A decline in the number of federal prosecutions and in the severity of sentences for drug-related crime in recent years has resulted in a significant drop in the federal prison population, according to statistics from the Judiciary, the U.S. Sentencing Commission (USSC), and the Bureau of Prisons (BOP).

The federal prison population fell from a peak of nearly 219,300 inmates in 2013 to 188,800 in April 2017, a nearly 14 percent reduction, according to BOP statistics.  The decrease reflects a dramatic shift in federal policies away from stiff penalties for drug trafficking and other drug-related offenses in recent years.  It also has mitigated overcrowding at BOP facilities -- the inmate population, once at 37 percent overcapacity, is now at 13 percent overcapacity.

Changes in sentencing guidelines are a major contributor to the inmate population decline.  In 2011, the USSC implemented lower crack cocaine penalties in line with the Fair Sentencing Act passed by Congress the year before.  The new guidelines were made retroactive, which resulted in the release of prisoners who had already served their time under the new guidelines.  Because drug crimes account for nearly a third of all criminal filings in federal courts, changes in drug sentences have a big impact on the federal prison population....  In 2014, the commission took the step of cutting the length of sentences for all drug trafficking offenses, not just crack cocaine.  Sentences were reduced by about 25 percent, and the changes were also made retroactive....

Other factors contributing to the decreasing prisoner population:

• Federal prosecutions for all crimes have declined over the past five years.  Criminal cases were brought against 77,357 defendants in fiscal year 2016, the lowest total since fiscal 1998, according to the Administrative Office of the U.S. Courts.  Last year, 67,742 defendants were convicted and sentenced, compared to 86,201 in 2011, the USSC reports.  However, the trend could slow or reverse in the coming months as new Attorney General Jeff Sessions and the Trump administration step up prosecutions of drug-related crime and immigration offenses.

• Two Supreme Court rulings since 2015 resulted in sentence reductions for about 1,200 inmates.  The court in Johnson v. United States found that one of the definitions of a violent felony under the Armed Career Criminal Act was unconstitutionally vague.  A subsequent high court decision made the Johnson ruling retroactive, which prompted thousands of prisoners to petition for review of their cases.  Many of those cases are still under review by the lower courts.

April 26, 2017 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Monday, April 24, 2017

An empirical dive into federal "Health Care Fraud Sentencing"

The quoted title of this post is the title of this notable new Note authored by Kyle Crawford. Here is the abstract:

Health care fraud convictions are on the rise, but little is known about how health fraud offenders are sentenced.  This Note offers the first comprehensive empirical account of sentencing decisions in health fraud cases based on a new dataset constructed from United States Sentencing Commission data.  This analysis shows that there is a large disparity in how health fraud offenders are sentenced compared to other white collar offenders and general crimes offenders.  Between 2006 and 2014, health fraud offenders received fewer Guidelines-range sentences and more below-Guidelines sentences than other offenders.  This is because: (1) health fraud offenders are older, whiter, more educated, and less likely to have a criminal record than other offenders, which are demographic characteristics associated with lighter sentences; (2) judges are dissatisfied with the loss table, which is used to sentence most health fraud offenders; and (3) judges view the collateral consequences of sentencing health fraud offenders — many of whom are health professionals — as a mitigating factor.

This analysis also shows a stark difference in the number of health fraud cases brought in districts across the country.  The ten districts with the highest proportion of health fraud convictions account for nearly a quarter of all health fraud convictions. In addition, health fraud offenders go to trial more often than other offenders.  This results from the threat of severe collateral consequences — exclusion from Medicare and Medicaid and possible loss of a medical license.  These offenders have a larger incentive to go to trial than other offenders, especially because pleading guilty does not allow health fraud offenders to avoid these collateral consequences.

April 24, 2017 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Monday, April 17, 2017

Split Second Circuit panel declares within-guideline child porn possession sentence of 225 months "substantively unreasonable"

A dozen years after Booker, the reversal of any federal sentence as substantively unreasonable is still quite rare and notable. Today, a Second Circuit panel has issued such a rare and notable decision in US v. Jenkinss, No. 14-4295 (2d Cir. April 17, 2017) (available here). Here are excerpts from the start and heart of the majority opinion:

A jury found Joseph Vincent Jenkins guilty of one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count of transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1), based on the government’s proof at trial that Jenkins owned a collection of child pornography and brought it across the U.S.-Canada border on the way to a family vacation for his personal viewing.

The United States District Court for the Northern District of New York (Glenn T. Suddaby, Chief Judge) imposed concurrent sentences of 120 months for the possession count, the statutory maximum, and 225 months for the transportation count, just below the statutory maximum of 240 months. The court also imposed a term of 25 years of supervised release. Jenkins challenges his conviction and the procedural and substantive reasonableness of his sentence....

Here, § 2G2.2 yielded a sentence that derived substantially from “outdated” enhancements related to Jenkins’s collecting behavior.  Meanwhile, the government has not alleged that he was involved in the production or distribution of child pornography or that he was involved in any child pornography community.  In particular, the government did not claim he used peer-to-peer sharing software, distributed images, or participated in chat rooms devoted to child pornography.  Nor does the government allege that he contacted or attempted to contact a child or that he engaged in any “sexually dangerous behavior” separate from his crimes of conviction.  Thus, here, as in Dorvee, § 2G2.2 cannot “bear the weight assigned it” because the cumulation of repetitive, all-but-inherent, enhancements yielded, and the district court applied, a Guideline range that failed to distinguish between Jenkins’s conduct and other offenders whose conduct was far worse.  Cavera, 550 F.3d at 191. It was substantively unreasonable for the district court to have applied the § 2G2.2 enhancements in a way that placed Jenkins at the top of the range with the very worst offenders where he did not belong.

The full majority opinion in Jenkins has lots of substantive sentencing review discussion that defies easy summary and that merits review by anyone deeply engaged in post-Booker sentencing and appeals.  In addition, Judge Kearse has a small dissenting opinion which highlights the defendant's aggressive disagreement with his prosecution and concludes this way:

Given this record in which Jenkins, inter alia, disputed any justification or authority for prosecuting him, and argued that instead the children who were victims of the child pornography should have been prosecuted, the district court's concern for the likelihood that, without a lengthy prison term, Jenkins would re-offend was not unreasonable, and I cannot conclude that the imposition of the prison term that was no higher than midway between the top and bottom of the Guidelines range "cannot be located within the range of permissible decisions."

April 17, 2017 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6)

Saturday, April 15, 2017

"Sentencing Disparities"

The title of this post is the title of this new paper authored by Melissa Hamilton available via SSRN. Here is the abstract:

This Article is concerned with disparities in penalty outcomes.  More specifically, the study investigates upward departures in the federal guidelines-based sentencing system.  No other research to date has explored upward departures in detail, despite their unique consequences to individuals and their effects on the system. Upward departures obviously lead to lengthier sentences and symbolically represent a dispute with the guidelines advice. Upward departures are discretionary to district judges and thus may lead to disparities in sentencing and exacerbate the problem of mass incarceration in this country.

The Article contextualizes the legal, policy, and practical reasons that render upward departures uniquely important decisions.  Two theoretical perspectives suggest why judges may assess that an individual deserves an upward departure (the focal concerns perspective) and why upward departures may be more prevalent in some courts (courtroom communities’ perspective).

The study capitalizes on a more sophisticated methodology than utilized in most criminal justice empirical research. The study presents a multilevel mixed model to test the effects of a host of legal and extralegal explanatory factors on the issuance of upward departures at the case level (called fixed effects) and whether those same factors are significant at the group level — i.e., district courts — to determine the extent of variation across districts (called random effects).  The results indicate that many of the legal and extralegal factors are relevant in individual cases (i.e., individual disparities) and indicate significant variations across district courts exist (i.e., regional disparities).

April 15, 2017 in Booker in district courts, Data on sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, April 09, 2017

Reviewing the "tough-and-tougher" sentencing perspectives of those now leading the Justice Department

The Washington Post has this extended new article reviewing a lot of the old tough-on-crime comments by AG Jeff Sessions and his new right-hand man, Steve Cook.  The article is headlined "How Jeff Sessions wants to bring back the war on drugs," and here is how it gets started (with one important phrase emphasized at the end):

When the Obama administration launched a sweeping policy to reduce harsh prison sentences for nonviolent drug offenders, rave reviews came from across the political spectrum. Civil rights groups and the Koch brothers praised Obama for his efforts, saying he was making the criminal justice system more humane.

But there was one person who watched these developments with some horror. Steven H. Cook, a former street cop who became a federal prosecutor based in Knoxville, Tenn., saw nothing wrong with how the system worked — not the life sentences for drug charges, not the huge growth of the prison population.  And he went everywhere — Bill O’Reilly’s show on Fox News, congressional hearings, public panels — to spread a different gospel. “The federal criminal justice system simply is not broken. In fact, it’s working exactly as designed,” Cook said at a criminal justice panel at The Washington Post last year.

The Obama administration largely ignored Cook, who was then president of the National Association of Assistant U.S. Attorneys.  But he won’t be overlooked anymore. Attorney General Jeff Sessions has brought Cook into his inner circle at the Justice Department, appointing him to be one of his top lieutenants to help undo the criminal justice policies of Obama and former attorney general Eric H. Holder Jr.  As Sessions has traveled to different cities to preach his tough-on-crime philosophy, Cook has been at his side.

Sessions has yet to announce specific policy changes, but Cook’s new perch speaks volumes about where the Justice Department is headed. Law enforcement officials say that Sessions and Cook are preparing a plan to prosecute more drug and gun cases and pursue mandatory minimum sentences. The two men are eager to bring back the national crime strategy of the 1980s and ’90s from the peak of the drug war, an approach that had fallen out of favor in recent years as minority communities grappled with the effects of mass incarceration.

Crime is near historic lows in the United States, but Sessions says that the spike in homicides in several cities, including Chicago, is a harbinger of a “dangerous new trend” in America that requires a tough response.  “Our nation needs to say clearly once again that using drugs is bad,” Sessions said to law enforcement officials in a speech in Richmond last month. “It will destroy your life.”

Advocates of criminal justice reform argue that Sessions and Cook are going in the wrong direction — back to a strategy that tore apart families and sent low-level drug offenders, disproportionately minority citizens, to prison for long sentences.  “They are throwing decades of improved techniques and technologies out the window in favor of a failed approach,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).

But Cook, whose views are supported by other federal prosecutors, sees himself as a dedicated assistant U.S. attorney who for years has tried to protect neighborhoods ravaged by crime.  He has called FAMM and organizations like it “anti-law enforcement groups.”  

The records of Cook and Sessions show that while others have grown eager in recent years to rework the criminal justice system, they have repeatedly fought to keep its toughest edges, including winning a battle in Congress last year to defeat a reform bill.  “If hard-line means that my focus is on protecting communities from violent felons and drug traffickers, then I’m guilty,” Cook said in a recent interview with The Post.  “I don’t think that’s hard-line. I think that’s exactly what the American people expect of their Department of Justice.”

The phrase I have stressed above is the phrase that ultimately matters most for the foreseeable future of the federal criminal justice system.  Though the Attorney General and others senior DOJ officials can and will define and shape the basic policies for federal charging and sentencing, it is local federal prosecutors around the nation who really determine how these policies get implemented and who, collectively, have the greatest impact on prosecutorial and punishment practices.  And I surmise that a whole lot of federal prosecutors — not all, but many and perhaps most — embrace the "tough-on-crime" philosophy that AG Sessions espouses more than the "smart-on-crime" mantra that former AG Holder eventually espoused. 

April 9, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Wednesday, April 05, 2017

En banc Ninth Circuit concludes application of guidelines should generally be reviewed for abuse of discretion

The Ninth Circuit today issues a relatively short en banc ruling that should be of particular interest to hard-core appellate review sentencing aficionados. The start of the opinion in US v. Gasca-Ruiz, No. 14-50342 (9th Cir. April 5, 2017) (available here), covers the basics:

We took this case en banc to resolve an intra-circuit conflict over the standard of review that applies when we review a district court’s application of the United States Sentencing Guidelines to the facts of a given case. We conclude that as a general rule such decisions should be reviewed for abuse of discretion.

If you still hanker for more, here is a paragraph from the heart of the court's analysis:

District courts make far more guideline-application decisions of all sorts, see Koon v. United States, 518 U.S. 81, 98 (1996), and thus are likely to be more familiar with the nuances that go into applying Guidelines provisions across the board. Guideline-application decisions, as we have defined them, almost always “depen[d] heavily upon an understanding of the significance of case-specific details,” Buford, 532 U.S. at 65, because once the district court has identified the correct legal standard and properly found the relevant historical facts, all that remains is the fact-bound judgment as to whether a specific set of facts satisfies the governing legal standard.  In the Sentencing Guidelines context in particular, that is a judgment district courts are uniquely qualified to make.  Each guideline-application decision is ultimately geared toward assessing whether the defendant before the court should be viewed as more or less culpable than other offenders in a given class.  In light of their experience sentencing defendants on a day-in-and-day-out basis, district courts possess an institutional advantage over appellate courts in making such culpability assessments. See Koon, 518 U.S. at 98.

April 5, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

AG Sessions provides update (with timelines) about the work of DOJ's Task Force on Crime Reduction and Public Safety

As reported in this short press release, "Attorney General Jeff Sessions today issued [a] memo to 94 U.S. Attorney’s Offices and Department of Justice component heads providing an update on the Department’s Task Force on Crime Reduction and Public Safety." As the press release further explains, in this update, "the Attorney General announced the creation of Task Force subcommittees that will focus on a variety of issues including developing violent crime reduction strategies, supporting prevention and re-entry efforts, updating charging and sentencing policies, reviewing asset forfeiture guidance, reducing illegal immigration and human trafficking, combatting hate crimes, and evaluating marijuana enforcement policy."

The full three-page AG memo is available at this link, and it does not cover much of significant substance.  But the memo does state that the AG "directed the Task Force to hold a National Summit on Crime Reduction and Public Safety within 120 days," and it also states that the AG has asked for Task Force subcommittees to provide initial recommendations no later than July 27th.  Thus I expect we will see some hot talk about changes to DOJ charging and sentencing policies (and perhaps also marijuana policies) as the weather heats up in the coming months. 

April 5, 2017 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, March 29, 2017

Notable review of recent ups and downs in federal prosecutions

FT_17.03.23_prosecutions_numberIn this new posting over at the Pew Research Center, John Gramlich has assembled interesting data on federal modern criminal justice realities under the headline "Federal criminal prosecutions fall to lowest level in nearly two decades." Here are highlights:

After peaking in 2011, the number of federal criminal prosecutions has declined for five consecutive years and is now at its lowest level in nearly two decades, according to a Pew Research Center analysis of new data from the federal court system. The decline comes as Attorney General Jeff Sessions has indicated that the Justice Department will reverse the trend and ramp up criminal prosecutions in the years ahead.

Federal prosecutors filed criminal charges against 77,152 defendants in fiscal year 2016, according to the Administrative Office of the U.S. Courts. That’s a decline of 25% since fiscal 2011, when 102,617 defendants were charged, and marks the lowest yearly total since 1997. The data count all defendants charged in U.S. district courts with felonies and serious misdemeanors, as well as some defendants charged with petty offenses. They exclude defendants whose cases were handled by magistrate judges.

Prosecutions for drug, immigration and property offenses – the three most common categories of crime charged by the federal government – all have declined over the past five years. The Justice Department filed drug charges against 24,638 defendants in 2016, down 23% from 2011. It filed immigration charges against 20,762 defendants, down 26%. And it charged 10,712 people with property offenses such as fraud and embezzlement, a 39% decline.

However, prosecutions for other, less frequently charged crime types have increased slightly. For example, prosecutors charged 8,576 defendants with gun crimes in 2016, a 3% increase over 2011 (and a 9% single-year increase over 2015). And they charged 2,897 people with violent crimes such as murder, robbery and assault, a 4% increase from five years earlier.

Several factors may play a role in the decline in federal prosecutions in recent years. One notable shift came in 2013, when then-Attorney General Eric Holder directed federal prosecutors to ensure that each case they bring “serves a substantial federal interest.” In a speech announcing the policy change, Holder said prosecutors “cannot – and should not – bring every case or charge every defendant who stands accused of violating federal law.”

Sessions, who took office as attorney general in February, has indicated that the Justice Department will take a different approach under his leadership. In particular, he has pushed to increase prosecutions for drug- and gun-related offenses as part of a broader plan to reduce violent crime, which rose nationally in 2015 and in the first half of 2016, according to the FBI. (Despite these increases, violent crime remains far below the levels recorded in the 1990s.)...

Since 2001, the Justice Department’s prosecution priorities have changed. Immigration offenses, for instance, comprised just 15% of all prosecutions in 2001; by 2016, they accounted for 27%. During the same period, drug crimes fell from 38% to 32% of all prosecutions, while property crimes declined from 20% to 14%.

Such revisions by the Justice Department are not unusual. In 2013, for example, after two states legalized the recreational use of marijuana, the department announced new charging priorities for offenses involving the drug, which remains illegal under federal law. Federal marijuana prosecutions fell to 5,158 in 2016, down 39% from five years earlier.

March 29, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Tuesday, March 21, 2017

Senate confirms two (holdover) nominees to US Sentencing Commission!!

Federal sentencing fans should be excited to hear that the full US Senate has now confirmed Judges Charles Breyer and Danny Reeves to be members of the United States Sentencing Commission.   (And, proving that somethings can still get done in a bipartisan manner inside the Beltway, this Senate reporting webpage indicates that the confirmation vote was unanimous.)  As previously noted, the original nominations of Judges Breyer and Reeves back in 2016 got stalled last Congress, but then outgoing Prez Obama thereafter renominated them for the US Sentencing Commission in January after the new Congress got to work.  I had been pessimistic about the prospects of these holdover nominees getting a hearing and a vote, but my pessimism was obviously misguided.  

Of particular importance, with Judges Breyer and Reeves now having been confirmed as full voting members of the US Sentencing Commission, they join Acting Chair Judge Bill Pryor and Commissioner Rachel Barkow to form a quorum on the USSC.  The Commission needs seven voting members to be fully staffed, but four members are sufficient to get stuff done if they all vote together on amendments and other action items.  Though it is not ideal for the USSC to have only four Commissioners rather than the full seven, it is literally "good enough for government work" and thus presents the possibility that the USSC can and will be more than just an effective research agency this year. 

As previously flagged here and now highlighted here at the USSC website, the Commission promulgated some notable proposed amendments in late 2016 when it still had a nearly full compliment of Commissioners.  Those proposed amendments have generated a whole lots of public comment, and I think they could prove to be quite consequential if formally passed in the coming months.  (A USSC hearing on the amendments is now scheduled for April 18.)  So, if the two new Commissioners agree to move forward with some form of the amendments promulgated late last year (which seems likely, especially because Judge Breyer was on the USSC during their development), it is now quite possible that the first big tangible federal sentencing development of the "Trump era" could involve significant federal sentencing guideline amendments.

March 21, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Friday, March 17, 2017

Taking a critical perspective on the work of former US Attorney for SDNY Preet Bharara

David Patton, executive director of the Federal Defenders of New York, penned this notable commentary for the Daily News concerning the work of fired SDNY US Attorney Preet Bharara.  The piece is headlined "An honest assessment of Preet Bharara's record: Harsh prosecutions put more African-Americans and Hispanics behind bars," and here are excerpts:

Last week the U.S. attorney for the Southern District of New York, Preet Bharara, was fired by President Trump, and the news media rushed to characterize his seven-year tenure.  Was he the "sheriff of Wall Street" for his insider trading prosecutions, a "showy pragmatist" for his affinity for television cameras, or the drainer of political swamps for his political corruption cases?  At least in part, he was surely all of those things.

But none of the tags do much to describe the actual work of his office and the overwhelming number of prosecutions it brings that have nothing to do with Wall Street or Albany.  Federal criminal cases rarely involve the rich or powerful.  Consistent with the rest of the country, 80% of federal defendants in the Southern District of New York are too poor to hire a lawyer.  Seventy percent are African-American or Hispanic.  The most commonly prosecuted offense type, by far, is drugs.

Last year, 45% of all federal criminal prosecutions in the Southern District were for drugs.  Two other leading offense types are firearms and immigration. The firearms cases are mostly gun possession cases transferred from state prosecutions in the Bronx.  They arise when NYPD officers search a car, apartment or person and claim they find a gun. Those arrested are plucked out of state court and brought to federal court for the express purpose of imposing lengthier sentences.  The immigration cases, so-called "illegal re-entry" cases, are prosecutions of people who were previously deported from the United States and came back.  Depending on their criminal history they typically face anywhere from two to seven years in prison before being removed from the United States again.

Bharara surely deserves credit for his efforts to clean up the financial industry and the political system.  But federal prosecutors should be judged primarily on how wisely, or not, they use the awesome power of their office to impose the many years of imprisonment on the thousands of people they choose to prosecute.  

And choose to prosecute they do. Unlike state and local prosecutors who largely react to police investigations and arrests, federal prosecutors have enormous discretion to decide who and what to prosecute.  Their jurisdictions are wide-ranging and overlapping, and many of the people they charge would otherwise be prosecuted in state court under less punitive laws.

Judging Bharara by those standards, his tenure was decidedly mixed.  His office greatly increased the prosecution of poor people of color using sprawling conspiracy and racketeering statutes to charge many low level drug dealers and addicts together with bigger players in the same indictments.  Some of the people charged were already serving time in state prisons for the same conduct.  Many others were caught up in "sting" operations in which the criminal conduct was initiated by agents and informants.

He also continued the programs begun by his predecessors in the Bush administration of prosecuting people for street crimes that were once considered the exclusive province of state courts.  Once again, those charges are brought almost entirely against poor people of color from the Bronx.  And across the board in drug and immigration cases, his office too often sought unnecessarily severe sentences....

When we evaluate the performance of top prosecutors, we should pay attention to whether they advance the goals of maintaining public safety while also reducing unnecessary and unequal terms of punishment.  And we should spend a lot less time concerned about how they handle the small sliver of cases that make the headlines.

March 17, 2017 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Monday, March 13, 2017

US Sentencing Commission releases 2016 Annual Report and Sourcebook of Federal Sentencing Statistics

Via email I received this cursory report on the publication of lots of federal sentencing data that is anything but cursory:

The United States Sentencing Commission’s 2016 Annual Report and 2016 Sourcebook of Federal Sentencing Statistics are now available online.

The Annual Report provides an overview of the Commission’s activities and accomplishments in fiscal year 2016.

The Sourcebook of Federal Sentencing Statistics presents tables, figures, and charts on selected district, circuit, and national sentencing data for fiscal year 2016. The Commission collected and analyzed data from approximately 315,000 court documents for nearly 68,000 federal criminal cases in the production of this year’s Sourcebook.

I am hoping to find time to churn over a lot of the data in these reports, but already from the start of the 2016 Annual Report these data items jumped out:

March 13, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (2)

Friday, March 10, 2017

More interesting new Quick Facts on fraud sentencing from the US Sentencing Commission

I noted in this post earlier this week that the US Sentencing Commission had released the first of a new series of Quick Facts covering federal fraud sentencing with a focus on health care fraud cases. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  I have now just noticed that the USSC released a number of other fraud-focused Quick Facts this week, and here are links to them:

Hard-core federal sentencing fans might make a parlor game of trying to guess which type of fraud has the most and which has the least sentences imposed within the calculated guideline ranges.

March 10, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (4)

Tuesday, March 07, 2017

"Booker Disparity and Data-Driven Sentencing"

The title of this post is the title of this notable new article now available via SSRN authored by Joshua Divine. Here is the abstract:

Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade.  Some judges issue sentences twice as harsh as peer judges, meaning that a defendant’s sentence substantially depends on which judge is randomly assigned to a case.  The old mandatory sentencing guidelines repressed disparity but only by causing unwarranted uniformity.  The advisory guidelines swing the pendulum toward the opposite extreme, and this problem promises to grow worse as the lingering effect of the old regime continues to decrease.

This Article is the first to propose a system — data-driven appellate review — that curbs sentencing disparity without re-introducing unwarranted uniformity.  Congress should establish a rebuttable presumption that outlier sentences among similar offenders are unreasonable.  The U.S. Sentencing Commission collects data on over 70,000 criminal cases annually.  This data provides the tool for defining categories of similar offenders.  Culling outlier sentences through data-driven appellate review would increase judicial awareness of sentences issued by peer judges and would therefore curb the increase in inter-judge disparity without resorting to unwarranted uniformity.

March 7, 2017 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, March 06, 2017

Interesting new Quick Facts on federal health care fraud sentencing from the US Sentencing Commission

The US Sentencing Commission has released this notable new Quick Facts covering federal sentencing in health care fraud cases. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  Here are a few of the intriguing data details from the the publication highlighting that within-guideline sentencing is actually the exception rather than the norm in these cases:

During the past three years, the rate of within range sentences for health care fraud offenders has decreased from 43.6% in fiscal year 2013 to 32.9% in fiscal year 2015.

In each of the past three years, approximately one-fifth to one-third of health care fraud offenders received a sentence below the applicable guideline range because the government sponsored the below range sentence....

In each of the past three years, approximately 34 percent of health care fraud offenders received a non-government sponsored below range sentence.

March 6, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (0)

Formalism (and floodgate/functionality fears?) prevail over functional analysis in Beckles

I was involved in preparing an amicus brief in the Beckles case decided by the Supreme Court this morning (basics here, full opinion here), and that brief argued (unsuccessfully) that the advisory federal sentencing guidelines should be subject to vagueness challenges.  The argument was, in its essence, a functional one highlighting the significant impact that guideline calculations still have on sentencing outcomes even though they are advisory.  Justice Sotomayor's separate opinion in Beckles, though concurring on narrow grounds, wholly embraced this functional argument to make the case that the guidelines should be subject to vagueness challenges.  Here are some passages from her extended decision that capture her functional perspective (with cites omitted, but key emphasis from original):

In most cases, it is the range set by the Guidelines, not the minimum or maximum term of imprisonment set by statute, that specifies the number of years a defendant will spend in prison. District courts impose a sentence within the Guidelines (or below the Guidelines based on a Government motion) over 80% of the time.  And when Guidelines ranges change — because the Guidelines themselves change, or because the court is informed of an error it made in applying them — sentences change, too. It is therefore no exaggeration to say that the Guidelines are, in a real sense, the basis for the sentence imposed by the district court....

As set out above, although the Guidelines do not bind a district court as a formal matter, as a functional matter they anchor both the district court’s discretion and the appellate review process....

Absent that Guideline, Beckles would have been sentenced to between 33 and 98 fewer months in prison. The District Court admitted as much, explaining that had the Guideline not applied, she “would not have imprisoned Beckles to 360 months” in prison. Years of Beckles’ life thus turned solely on whether the career-offender Guideline applied. There is no meaningful way in which the Guideline exerted less effect on Beckles’ sentence than did the statute setting his minimum and maximum terms of imprisonment; indeed, it was the Guidelines, not just the statute, that fixed Beckles’ sentence in every meaningful way. Nothing of substance, in other words, distinguishes the Guidelines from the kind of laws we held susceptible to vagueness challenges in Johnson; both law and Guideline alike operate to extend the time a person spends in prison. The Due Process Clause should apply equally to each.

Notably, as Justice Sotomayor highlights in various ways in her opinion, this kind of functional concern with the continued importance of advisory guideline calculations drove the majority opinions in prior recent cases like Peugh dealing with application of the Ex Post Facto clause and Molina-Martinez dealing with plain error review. But this time around, a more formalistic approach carried the day.

As my post title here suggests, I think the formalistic approach to application of the vagueness doctrine at sentencing prevail because a number of key Justices, particularly perhaps the Chief and Justice Kennedy, may have been especially concerned about what a "vagueness at sentencing" doctrine could end up looking like and how often it might arise. Notably, Justice Kennedy authored an intriguing little concurrence in Beckles that suggests he is concerned about arbitrary sentencing, but was here even more concerned about application of traditional vagueness doctrine to sentencing. Here is what Justice Kennedy had to say:

As sentencing laws and standards continue to evolve, cases may arise in which the formulation of a sentencing provision leads to a sentence, or a pattern of sentencing, challenged as so arbitrary that it implicates constitutional concerns. In that instance, a litigant might use the word vague in a general sense — that is to say, imprecise or unclear — in trying to establish that the sentencing decision was flawed. That something is vague as a general matter, however, does not necessarily mean that it is vague within the well-established legal meaning of that term. And it seems most unlikely that the definitional structure used to explain vagueness in the context of fair warning to a transgressor, or of preventing arbitrary enforcement, is, by automatic transference, applicable to the subject of sentencing where judicial discretion is involved as distinct from a statutory command. See Johnson v. United States, 576 U. S. ___ (2015).

The existing principles for defining vagueness cannot be transported uncritically to the realm of judicial discretion in sentencing. Some other explication of the constitutional limitations likely would be required.

Though I find intriguing the suggestion by Justice Kennedy that there could and sould be "some other explication of the constitutional limitations" on the realm of judicial discretion in sentencing, the ruling in Beckles may itself ensure that such an explication never gets developed in the context of the Due Process Clause.  (Whether Justice Kennedy and others might explicate such limits in non-capital sentencing as they have in capital sentencing through the Eighth Amendment might still be ripe with possibilities.)

March 6, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

SCOTUS rules in Beckles that federal advisory guidelines are not subject to Due Process vagueness challenges

The Supreme Court this morning issued a big opinion concerning the operation of and challenges to the federal sentencing guidelines in Beckles v. United States, No. No. 15–8544 (S. Ct. March 6, 2017) (available here). Here is how the opinion authored by Justice Thomas gets started: 

At the time of petitioner’s sentencing, the advisory Sentencing Guidelines included a residual clause defining a “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG).   This Court held in Johnson v. United States, 576 U. S. ___ (2015), that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines’ residual clause is also void for vagueness.  Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument.

After the oral argument tone in this case, I am not surprised to see this result. But I expect I may have more to say about the particulars of this Beckles ruling in the coming hours and days.  To begin, I think the sentiments in the closing section of the opinion of the Court best accounts for the Beckles outcome:

In addition to directing sentencing courts to consider the Guidelines, see §3553(a)(4)(A), Congress has directed them to consider a number of other factors in exercising their sentencing discretion, see §§3553(a)(1)–(3), (5)–(7). The Government concedes that “American judges have long made th[e] sorts of judgments” called for by the §3553(a) factors “in indeterminate-sentencing schemes, and this Court has never understood such discretionary determinations to raise vagueness concerns.” Brief for United States 42. Because the §3553 factors — like the Guidelines — do not mandate any specific sentences, but rather guide the exercise of a district court’s discretion within the applicable statutory range, our holding today casts no doubt on their validity.

Holding that the Guidelines are subject to vagueness challenges under the Due Process Clause, however, would cast serious doubt on their validity. Many of these other factors appear at least as unclear as §4B1.2(a)’s residual clause. For example, courts must assess “the need for the sentence imposed” to achieve certain goals — such as to “reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment for the offense,” “afford adequate deterrence to criminal conduct,” and “provide the defendant with needed educational or vocational training . . . in the most effective manner.” §3553(a)(2). If petitioner were correct that §4B1.2(a)’s residual clause were subject to a vagueness challenge, we would be hard pressed to find these factors sufficiently definite to provide adequate notice and prevent arbitrary enforcement.

The Government tries to have it both ways, arguing that the individualized sentencing required by the other §3553(a) factors is different in kind from that required by the Guidelines. “An inscrutably vague advisory guideline,” it contends, “injects arbitrariness into the sentencing process that is not found in the exercise of unguided discretion in a traditional sentencing system.” Reply Brief for United States 10–11. But it is far from obvious that the residual clause implicates the twin concerns of vagueness any more than the statutory command that sentencing courts impose a sentence tailored, for example, “to promote respect for the law.” §3553(a)(2)(A). And neither the Guidelines nor the other §3553 factors implicate those concerns more than the absence of any guidance at all, which the Government concedes is constitutional.

The Government also suggests that the Guidelines are not like the other §3553(a) factors “because they require a court to decide whether the facts of the case satisfy a legal standard in order to derive a specific numerical range.” Id., at 22. But that does not distinguish the other sentencing factors, which require courts to do the same thing. Section 3553(a) states that district courts “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§3553(a)(2)].” In fact, the Guidelines generally offer more concrete advice in imposing a particular sentence and make it easier to review whether a court has abused its substantial discretion. There is no sound reason to conclude that the Guidelines — but not §3553(a)’s other sentencing factors — are amenable to vagueness review.

March 6, 2017 in Federal Sentencing Guidelines, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

Wednesday, March 01, 2017

Justices seem disinclined to limit federal judicial sentencing discretion in Dean

The US Supreme Court yesterday heard oral argument in Dean v. United States.  The case will resolve a circuit split over whether federal district judges, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the firearm mandates.  The oral argument transcript, available here, is a interesting read for a bunch of reasons.  And I have a little summary of the argument posted here at SCOTUSblog.  Here is how that posting starts: 

It has now been more than a year since Justice Antonin Scalia passed away, but his jurisprudential spirit seemed to fill the courtroom yesterday as the Supreme Court heard oral argument in Dean v. United States At issue in Dean is whether a trial judge, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the severity of the mandated consecutive sentences.  During the oral argument, several justices endorsed the government’s contention that allowing a judge to give a nominal sentence for the underlying predicate offenses in these circumstances would largely negate Congress’ purpose in enacting Section 924(c).  But, echoing statutory interpretation principles that Scalia often championed in federal criminal cases, the justices also stressed that the text of the applicable sentencing statutes did not clearly foreclose the trial judge’s exercise of judicial sentencing discretion.  This textualist point may carry the day for the defendant. 

March 1, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, February 27, 2017

Senate Judiciary Committee this week to consider two (holdover) nominees to US Sentencing Commission

Sentencing fans in general and federal sentencing fans in particular should be interested in and intrigued by the first agenda item listed for this Wednesday's Executive Business Meeting of the Senate Judiciary Committee: Nominations — Charles R. Breyer, to be a Member of the United States Sentencing Commission (Reappointment); Danny C. Reeves, to be a Member of the United States Sentencing Commission.

After the nominations of Judges Breyer and Reeves were stalled last Congress, outgoing Prez Obama thereafter renominated them for the US Sentencing Commission in January after the new Congress got to work.  I have been somewhat pessimistic about the prospects of these holdover nominees getting a hearing and a vote, but perhaps my pessimism was misguided.  Of particular important, if Judges Breyer and Reeves receive confirmation from the Senate in short order, they would join Acting USSC Chair Judge Bill Pryor and Commissioner Rachel Barkow to form a quorum on the USSC.  (The Commission needs seven voting members to be fully staffed, but four members are sufficient to get stuff done if they all vote together on amendments and other action items.)

Notably, as previously flagged here and now highlighted here at the USSC website, the Commission promulgated some notable and consequential proposed amendments in late 2016 when it still had a nearly full compliment of Commissioners, and those proposed amendments have generated a whole lots of public comment.  If the USSC gets two more Commissioners in the coming days, and if the two new folks and the two existing folks agree to move forward with some form of the amendments promulgated late last year, it is possible that the first big tangible federal sentencing development of the "Trump era" involves significant federal sentencing guideline amendments.  (But, of course, this is a whole lot of "ifs" and thus nobody should count on anything in this space these days.)

February 27, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Sunday, February 26, 2017

SCOTUS considering cases involving sentencing and collateral consequences in coming days

This coming week the Supreme Court hears arguments in three cases that ought to be over interest to sentencing fans. Here are the basics of the cases in the order they are to be consider in the next two days, with descriptions and links to argument previews via SCOTUSblog:

Packingham v. North Carolina

Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites — including Facebook, YouTube, and nytimes.com — that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

Argument preview: Court to consider social media access for sex offenders 

Esquivel-Quintana v. Sessions

Issue: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act — and therefore constitutes grounds for mandatory removal.

Argument preview: Removal of an immigrant for “sexual abuse of a minor” 

Dean v. United States

Issue: Whether the Supreme Court's decision in Pepper v. United States overruled United States v. Hatcher and related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court's discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction.

Argument preview: Justices to consider limits of sentencing discretion under advisory guidelines

For all sorts of reasons, Packingham seems likely to get the most attention of this bunch. But Dean could provide to be a sleeper post-Booker case for federal sentencing fans.

February 26, 2017 in Booker in district courts, Collateral consequences, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Tuesday, February 21, 2017

US Sentencing Commission releases big new report on "Recidivism Among Federal Drug Trafficking Offenders"

The US Sentencing Commission today released the second major report emerging from a huge assessment of federal offenders released from prison in 2005.  This USSC webpage provides this background and highlights from this 149-page data-rich report:

This report, Recidivism Among Federal Drug Trafficking Offenders examines a group of 10,888 federal drug trafficking offenders who were released in calendar year 2005. These 10,888 offenders, who were all U.S. citizens, represent 42.8 percent of the 25,431 federal offenders who were released in calendar year 2005 and analyzed in the Commission’s 2016 report, Recidivism Among Federal Offenders: A Comprehensive Overview. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders.

Chapter One summarizes the group studied in this report as well as its key findings. It also explains the methodology used in the report. Chapter Two provides an overview of the statutes and guidelines most often applicable to federal drug trafficking offenses, and reports the demographics and recidivist behavior of drug trafficking offenders as a whole. Chapters Three through Seven provide detailed information about offenders as classified by the drug types studied in this report: powder cocaine, crack cocaine, heroin, marijuana, and methamphetamine. Chapter Eight concludes by reviewing the report’s findings.

Some highlights of the Commission’s study are that:

  • Over the eight-year follow-up period, one-half (50.0%) of federal drug trafficking offenders were rearrested (see bar chart). Of those drug trafficking offenders who recidivated, the median time to rearrest was 25 months.

  • In general, there were few clear distinctions among the five drug types studied. One exception is that crack cocaine offenders recidivated at the highest rate (60.8%) of any drug type. Recidivism rates for other drug types were between 43.8% and 50.0% (see table).

  • Nearly one-fourth (23.8%) of drug trafficking offenders who recidivated had assault as their most serious new charge followed by drug trafficking and public order offenses.

  • Federal drug trafficking offenders had a substantially lower recidivism rate compared to a cohort of state drug offenders released into the community in 2005 and tracked by the Bureau of Justice Statistics. Over two-thirds (76.9%) of state drug offenders released from state prison were rearrested within five years, compared to 41.9% of federal drug trafficking offenders released from prison over the same five-year period.

  • A federal drug trafficking offender’s Criminal History Category was closely associated with the likelihood of recidivism. But note that career offenders and armed career criminals recidivated at a rate lower than drug trafficking offenders classified in Criminal History Categories IV, V, and VI. (Related data and policy recommendations are discussed in the Commission's 2016 Report to the Congress on Career Offender Sentencing Enhancements.)

  • A federal drug trafficking offender’s age at time of release into the community was also closely associated with likelihood of recidivism.

February 21, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)