Sentencing Law and Policy

Seeking comments on what to say in comments to the US Sentencing Commission about its priorities

A wise colleague wisely suggested to me that this year might be an especially wise time to convert all my ideas and concerns about the work of the US Sentencing Commission into formal comments for formal submission to the USSC as a formal response to this formal statement of the USSC's proposed priority policy issues for the amendment cycle ending May 1, 2014.

The USSC's six-page Federal Register statement of tentative priorities lists just about every topic that has consumed the recent work of the Commission, ranging from mandatory minimums to post-Booker sentencing patterns to the child porn guidelines to the drug guidelines to economic crimes and lots of stuff in between (including even some back-end sentencing stuff like the compassionate release guidelines).  Nevertheless, there are still plenty of topics not mentioned that I think should be high on the Commission's agenda, ranging from the impact of sequester on the operation of the federal criminal justice system to the enduring need for serious guideline simplification to the overwhelming problem of undue sentencing severity.

Here is the official statement of the official rules for submitting official public comments to the USSC:

The Commission hereby gives notice that it is seeking comment on [its] tentative priorities and on any other issues that interest ed persons believe the Commission should address during the amendment cycle ending May 1, 2014.  To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority.

Appropriately, the final line in the USSC's notice includes this fitting kicker: "Pursuant to 28 U.S.C. § 994( g), the Commission also invites public comment that addresses the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to a proposed priority."

So, to the extent practicable, I would love to hear from readers about what they think I should make sure to put into my formal comments to the USSC.  I have until July 15 to get this done, but I would very much like to have a document ready to send out not long after I enjoy the rocket's red blare this coming Independence Day.

Lots of reasonable debate over the guidelines and reasonable review from Second Circuit judges

With thanks to the readers who alerted me, I wanted to alert everyone else to todays Second Circuit opinion in US v. Ingram, No. 12-1058 (2d Cir. June 14, 2013) (available here).  The per curiam opinion, which affirms a below guideline drug sentence, is not at all notable (and runs only 3 pages). 

But the concurring opinions are both must reads: the first is by Judge Calabresi and runs 14 pages, the second is by Judge Raggi and runs 17 pages to explain why she thinks the prior 14 pages are all washed up.   As a reader put it, the two Second Circuit jurists here "have at it on various psychological, philosophical, and practical matters concerning sentencing under the Guidelines."

Bipartisan House Overcriminalization Task Force schedules first hearing for June 14

I learned via this NACDL press release that Representative Jim Sensenbrenner Chairman Sensenbrenner has scheduled the first hearing of the Overcriminalization Task Force for this Friday, June 14, 2013, at 9:00 a.m. at 2237 Rayburn House Office Building." Here is more background and details via the release:

On May 7, 2013, The House Committee on the Judiciary voted unanimously to create the “Overcriminalization Task Force of 2013.”  At a press briefing that day, Judiciary Committee and Overcriminalization Task Force leaders expressed agreement on the need to address several important issues, including the erosion of the mens rea (or criminal intent) requirement in federal criminal law, the often unnecessary duplication of state law in the federal code, overincarceration, and the explosion of regulatory offenses that some estimate may now number as high as 300,000, among other issues.  Members also expressed the need to address mandatory minimum sentences.

According to Judiciary Committee Chairman Bob Goodlatte (R-VA), “The task force will be authorized for six months and will be led by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner and Ranking Member Bobby Scott.” It will “conduct hearings and investigations and issue a report on overcriminalization in the federal code, as well as possible solutions.”  The task force is made up of five Democrats and five Republicans, and will include Judiciary Committee Ranking Member John Conyers (D-MI) and Chairman Goodlatte as ex-officio members....

The topic of this first hearing is “Defining the Problem and Scope of Overcriminalization and Overfederalization.” [And here are the scheduled witnesses:]

Mr. Steven D. Benjamin, President, National Association of Criminal Defense Lawyers

Mr. John Malcolm, Rule of Law Programs Policy Director, The Heritage Foundation

Mr. William N. Shepherd, Chair, Criminal Justice Section, American Bar Association

The Honorable George Terwilliger, III, Partner, Morgan, Lewis & Bockius LLP

A webcast of the hearing as well as the written testimony of the witnesses will be made available [at this link].

"What the Sentencing Commission Ought to Be Doing: Reducing Mass Incarceration"

The title of this post is the title of this notable new article by Judge Lynn Adelman available via SSRN.  With three new members of the US Sentencing Commission, the piece is especially timely, and here is the abstract:

The United States presently incarcerates about 2.3 million people.  We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners.  Incarcerating so many people raises important moral issues because the burden of incarceration is borne largely by minorities from impoverished inner city communities. Further, those incarcerated suffer detriments that go far beyond the legislated criminal penalty and doom many offenders to a continuing cycle of re-incarceration. Over-incarceration is also very costly.

The federal government contributes significantly to this problem.  Every week it locks up a record number of people, presently about 216,000.  While some states have recently reduced their prison populations, the federal prison population continues to increase.  The principal reason for this is federal sentencing law. Since Congress enacted the Sentencing Reform Act (“SRA”) creating the Sentencing Commission and directing it to establish sentencing guidelines, the average federal sentence has more than doubled.  Federal prisons are now at 138% of capacity and consume an ever-increasing share of the federal criminal justice budget.

There are only two ways that we can reduce the prison population: by sending fewer people to prison and imprisoning people for shorter lengths of time.  Many observers believe that the sentences called for by the federal sentencing guidelines, which were mandatory until 2005 when the Supreme Court decided United States v. Booker and made them advisory, are too severe and could be significantly reduced without endangering public safety.  The Commission, however, has shown no interest in making guideline sentences less harsh. Rather, its principal concern is that since Booker judges are imposing too many below guideline sentences and thereby creating disparity.  Thus, it recently asked Congress to require sentencing judges to give additional weight to the guidelines and provide additional justification for sentences varying substantially from the guidelines, and to require appellate courts to presume the reasonableness of guideline sentences and to strictly scrutinize sentences based on policy disagreements with the guidelines.  These restrictions would, of course, increase the federal prison population.

My essay argues that it serves no useful purpose for the Commission to continue to make its top priority curtailing judicial discretion in the name of reducing disparity.  I contend not only that the system created by the SRA and the guidelines failed but that any system principally designed to reduce disparity will fail.  I argue that, instead of attempting to curtail judicial discretion, the Commission should focus on the problem of over-incarceration.  The Commission is statutorily authorized and institutionally well-positioned to address this problem and, by doing so, it could have a positive impact on the entire American criminal justice system.  I propose that the Commission take such actions as modifying the guidelines to expand the use of probation, reducing the severity of numerous guidelines, developing a release program for elderly prisoners, lobbying Congress regarding mandatory minimum sentences, calling public attention to over-incarceration and others.  I also contend that if the Commission is intent upon reducing disparity, the best way to do so is by making the guidelines less severe and thus making it more likely that judges will follow them.

Some recent related posts:

• Prez Obama makes three great new nominations to the US Sentencing Commission
• If (and when?) confirmed, will Judge William Pryor champion federalism concerns within the US Sentencing Commission?
• "How can a member of the US Sentencing Commission promote federalism?"
• Senate confirms new USSC Commissioners Barkow, Breyer and Pryor

Guidelines are "the lodestone" of federal sentencing (as well as "the starting point and the initial benchmark")

The title of this post is drawn from the key word in a key paragraph that captured my attention in what is otherwise a straight-forward opinion by the Supreme Court today in Peugh (basics here).  Here is the context from a paragraph that effectively summarizes the conclusions of the Peugh majority opinion per Justice Sotomayor:

"The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing.  A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation."

Major kudos to Justice Sotomayor for adding a fitting new term to the post-Booker federal sentencing lexicon.  Kudos also to the majority Court for stressing these enduring modern federal sentencing realities in the course of reaching its conclusions:

When Peugh committed his crime, the recommended sentence was 30 to 37 months.  When he was sentenced, it was 70 to 87 months....  Such a retrospective increase in the measure of punishment raises clear ex post facto concerns.  We have previously recognized, for instance, that a defendant charged with an increased punishment for his crime is likely to feel enhanced pressure to plead guilty.  See Carmell, 529 U.S., at 534, n.24; Weaver, 450 U.S., at 32.  This pressure does not disappear simply because the Guidelines range is advisory; the defendant will be aware that the range is intended to, and usually does, exert controlling influence on the sentence that the court will impose....

On the Government’s account, the Guidelines are just one among many persuasive sources a sentencing court can consult, no different from a “policy paper.”  Brief for United States 28.  The Government’s argument fails to acknowledge, however, that district courts are not required to consult any policy paper in order to avoid reversible procedural error; nor must they “consider the extent of [their] deviation” from a given policy paper and “ensure that the justification is sufficiently compelling to support the degree of the variance,” Gall, 552 U.S., at 50.  Courts of appeals, in turn, are not permitted to presume that a sentence that comports with a particular policy paper is reasonable; nor do courts of appeals, in considering whether the district court’s sentence was reasonable, weigh the extent of any departure from a given policy paper in determining whether the district court abused its discretion, see id., at 51.  It is simply not the case that the Sentencing Guidelines are merely a volume that the district court reads with academic interest in the course of sentencing.

And kudos also to Justice Thomas for providing a slightly competing vision of the post-Booker world via passages in his dissent like the following that, I suspect, will end up in many more defense sentencing submissions than government ones:

[T]he Guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence.  Second, to the extent that the amended Guidelines create a risk that a defendant might receive a harsher punishment, that risk results from the Guidelines’ persuasive force, not any legal effect....

Petitioner next argues that the Guidelines limit district court discretion because sentences falling outside the Guidelines are more likely to be reversed for substantive unreasonableness.  Brief for Petitioner 25.  I doubt, however, that reversal is a likely outcome when a district judge can justify his sentence based on agreement with either of two Guidelines — the old or the new.  If a district court calculated the sentencing range under the new Guidelines but sentenced the defendant to a below-Guidelines sentence that fell within the range provided by the old Guidelines, it would be difficult to label such a sentence “substantively unreasonable.”  To do so would cast doubt on every within-Guidelines sentence issued under the old Guidelines.

I have long suggested that defense attorneys regularly and in every case calculate, and submit to a sentencing court prior to sentencing, the "old" sentencing ranges that would have applied under the original 1987 version of the federal sentencing guidelines which were first promulgated by the original US Sentencing Commission.  The above-quoted passages from Justice Thomas now would enable sentencing courts to feel confident that a sentence within the range suggested by the 1987 guidelines should nearly always be deemed reasonable.

SCOTUS concludes Ex Post Facto Clause still limits application of new guidelines after Booker

Thanks to the fine folks live-blogging at SCOTUSblog, I can provide this summary report (with a few edits) of the one big sentencing ruling handed down by the US Supreme Court this morning:

Justice Sotomayor for the Court in Peugh v. United States....

The decision of the Seventh Circuit is reversed, the case is remanded.  The Court is splintered.  Justice Sotomayor delivers the opinion of the Court except for one part. The Ex Post Facto Clause is violated when a defendant is sentenced under guidelines promulgated after he committed his acts, and the new version of the guidelines provides for a higher sentence than the one in effect at the time he committed his act.

Justice Sotomayor's opinion is for the Court except for a discussion about the policies underlying the Ex Post Facto Clause.  It's another case where Justice Kennedy joins the more liberal members of the Court.

Justice Thomas dissents, joined by the Chief and Scalia and Alito. Justice Alito dissents, joined by Justice Scalia.  Justices Ginsburg, Breyer, and Kagan join all of the Sotomayor opinion; Justice Kennedy declines to join Part III-C.

The big fight in the case was whether the Sentencing Guidelines are important enough to trigger Ex Post Facto review given that they are no longer binding -- the majority says they are....

The part of the Sotomayor opinion that Kennedy does not join is a response to the argument by the government and the dissent that the Ex Post Facto Clause is not implicated by this case.  The ruling will be significant to the ability of courts to apply tougher new sentencing guidelines to pending cases.  It is also a strong reaffirmation of the Ex Post Facto Clause.

The full opinions in Peugh are available here.  The opinion for the Court per Justice Sotomayor runs 20 pages, and the main dissent per Justice Thomas is 14 pages. 

Kudos to the Court in keep this one relatively brief, as I suspect every sentence from the Justices in this case could end up having some impact on the operation of the post-Booker federal sentencing world.  And once I get some time to read these opinions, I will do some follow-up posts on whether Peugh passes the smell test (get it..., I know, pretty lame).

"Iowa judge calls sentencing guidelines for meth dealers 'flawed'"

The title of this post is the headline of this local article discussing a significant federal sentencing decision handed down late Friday.  Here are the basics:

Sioux City-based U.S. District Judge Mark Bennett on Friday became one of a handful of U.S. judges to declare public opposition to federal sentencing guidelines for methamphetamine dealers. He wrote that he considers them to be “fundamentally flawed,” not based on empirical data and too harsh for lower-level drug figures.

Bennett — declaring in a 44-page ruling that he has a “fundamental policy disagreement” with the methamphetamine portion of guidelines that federal judges are supposed to consider in sentencing criminals — cut the sentence of Sioux City drug dealer Willie Hayes to six years and three months from a possible 15 years, eight months....

Bennett, a longtime critic of mandatory minimum sentences, notes in his opinion that the methamphetamine guidelines lack the depth of other portions of the sentencing blueprint and appear to be more influenced by politics than by science. Methamphetamine dealers in recent years have faced much harsher sentences than dealers of marijuana, cocaine or heroin and run into mandatory minimum sentences for handling a much lower quantity of drug.

“The methamphetamine guidelines are fundamentally flawed because they fail to consider additional factors beyond quantity,” Bennett wrote. “The system is too severe in the indiscriminate way it treats offenders … . Since the methamphetamine guidelines are fundamentally flawed, I find that they fail to promote the purposes of sentencing” outlined in federal law.

Des Moines defense attorney Angela Campbell called the ruling “a very big deal, and it’s also something that’s been coming for a while.”...

Bennett’s ruling borrows reasoning from two other federal judges who have made similar stands — Joseph Bataillon of Nebraska and John Gleeson of New York. “He’s not a lone voice in the wilderness,” said Iowa defense attorney F. Montgomery Brown. And Bennett’s ruling likely will have an affect on how federal drug cases are argued.

“It’s an argument that defense lawyers in both the Northern and Southern districts of Iowa need to make,” Brown said. “It’s malpractice not to.”

I concur with the sentiment that Judge Bennett's work in US v. Hayes (available here) is a "very big deal," and I believe that federal defense attorneys nationwide, not just in Iowa, ought to be raising arguments based on Hayes in every federal meth sentencing case.

"Indeterminate Sentencing Returns: The Invention of Supervised Release"

The title of this post is the title of this new article by Fiona Doherty just published in the June 2013 issue of the New York University Law Review. Here is the abstract:

The determinacy revolution in federal sentencing, which culminated in the passage of the Sentencing Reform Act of 1984, has since been upended by a little-noticed phenomenon: the evolution of federal supervised release.  A “determinate” sentencing regime requires that prison terms be of fixed and absolute duration at the time of sentencing.  Because of the manner in which supervised release now operates, however, contemporary federal prison terms are neither fixed nor absolute. Instead, the court has discretion to adjust the length of a prison term after sentencing based on its evaluation of the post-judgment progress of the offender.  This power to amend the duration of the penalty is the classic marker of the “indeterminate” sentence.

In this Article, I show how federal supervised release has dismantled the ambitions of the determinacy movement and made federal prison terms structurally indeterminate in length.  I conclude that the widespread use of supervised release has created a muddled and unprincipled form of indeterminate sentencing: one that flouts the insights and vision of the nineteenth-century indeterminacy movement as well as the twentieth-century determinacy movement.  Having dislocated once-celebrated theories of sentencing, federal supervised release now controls the lives of more than 100,000 people without offering any alternative theoretical basis for doing so.  This Article draws on the lessons of a 200 year history to expose the current nature of supervised release and to envision a more coherent role for its future.

I have long viewed supervised release as an important, but badly under-examined and under-theorized, aspect of the modern federal sentencing system.  Thus I am pleased to see a prominent article taking on SR in a prominent way.

"Amoral Numbers and Narcotics Sentencing"

The title of this post is the headline of this notable new article authored by Mark Osler and now available via SSRN. Here is the abstract:

Americans are fascinated with lists and rankings. Magazines catch the eye with covers promising “92 Cute Summer Looks,” college football fans anxiously await the release of pre-season rankings, and law schools have reshaped themselves in reaction to the rankings released by U.S. News and World Report.  With each of these, though, the lists often do more to create a reality than to reflect one, with distinct negative effects. The same problem plagues federal narcotics sentencing, where rankings of the relative seriousness of crimes are embedded in sentencing guidelines and minimum sentences required by statutes, though they are rooted neither in empirical evidence nor a consistent theory of problem-solving.

"Not -So -Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines"

The title of this post is the title of this notable new Note by Andrew Tunnard just published in the Vanderbilt Law Review. Here are excerpts from this Note's introduction explaining its themes and scope:

[T]hree circuits [the Third, Seventh and Ninth have all] reasoned that adult convictions stemming from crimes committed before the age of eighteen can count toward the career offender sentencing provisions of the Guidelines (“Career Offender Guidelines”), regardless of whether the prior sentence was served in a juvenile facility.  The Fourth and Eleventh Circuits stand in opposition; they apply the Career Offender Guidelines by inquiring into the nature of the sentence served.  If a prior conviction resulted in a sentence served in a juvenile facility, this conviction cannot be counted toward a career offender determination.....

This Note looks beyond the circuit split to the larger juvenile justice issues implicated by these sentencing practices.  Part II provides a brief overview of the juvenile justice system, juvenile transfer statutes, and the Guidelines.  Part III explores the interpretive issues that have led to this circuit split.  Part IV explains why resolving this circuit split requires more than choosing one side, and expands the discussion by analyzing the impact of recent judicial and scientific trends on the treatment of juvenile offenders in the adult system.  Part V proposes that convictions occurring before the age of eighteen should not be factored into a career offender enhancement, regardless of the nature of the conviction or sentence. Ultimately, this solution creates a judicially manageable rule supported by Supreme Court precedent, state law, and the overall rehabilitative goals of the juvenile justice system.

Feds and Jeff Skilling cut resentencing deal to fix new guideline range at 168 to 210 months

As had been previewed a public notice to victims from the Justice Department last month (noted here), federal prosecutors and former Enron CEO Jeff Skilling have reached a deal concerning unresolved matters before Skilling's resentencing. This Reuters article details the basics of this notable high-profile sentencing development:

Jeffrey Skilling, the former Enron Corp chief executive, could be freed from prison nearly a decade sooner than originally expected, under an agreement with federal prosecutors to end the last major legal battle over one of the biggest corporate frauds in U.S. history.

The agreement calls for Skilling to see his federal prison sentence reduced to as little as 14 years, down from the 24 years imposed in 2006. It could result in Skilling's freedom in late 2018, with good behavior.

In exchange, Skilling, 59, who has long maintained his innocence, agreed to stop appealing his conviction. The agreement would also allow more than $40 million seized from him to be freed up for distribution to Enron fraud victims.

A resentencing became necessary after a federal appeals court upheld Skilling's conviction but found the original sentence too harsh....  Wednesday's agreement, which is subject to court approval, recommends that Skilling be resentenced to between 14 and 17-1/2 years in prison, including time already spent there. Skilling has been in prison since December 2006.

A helpful readers forwarded to me the 7-page sentencing agreement, which can be downloaded below.  Here are the essential pieces of the deal:

The Government and the defendant agree that, based on the previous decisions of the Fifth Circuit with respect to proper calculation of the United States Sentencing Guidelines range and this Court's prior sentencing rulings on October 23, 2006, the United States Sentencing Guidelines provide that the defendant should be resentenced using an adjusted offense level of 36 and a criminal history category of I, resulting in an advisory guidelines range of 188 to 235 months of imprisonment.

For the reasons set forth below as "Relevant Considerations," the Government and the defendant agree to recommend jointly that the District Court apply a one-level downward variance and resentence the defendant using an adjusted offense level of 35, pursuant to the United States Sentencing Guidelines.  Given that the defendant is located in criminal history category I for resentencing purposes, the jointly recommended adjusted offense level will result in a jointly recommended guidelines range of 168 to 210 months of imprisonment.

Neither the Government nor the defendant will seek any variance or departure from the jointly recommended guidelines range.  The Government may allocute at sentencing, but the Government will not take a position regarding the particular sentence the District Court should impose within the jointly recommended guidelines range.

The defendant agrees to waive all potential challenges to his convictions and sentence, including a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, appeals, and collateral attacks, except as set forth [below]....

Neither the Government nor the defendant will appeal a sentence imposed within the jointly recommended guidelines range.  However, the Government and the defendant each reserve the right to appeal a sentence imposed outside this range.

Download Skilling Sentencing Agreement final.cfv

Senate hearings scheduled this afternnon for two of Prez Obama's USSC nominees

As detailed on this official Senate Judiciary Committee webpage, today at 2:30pm there is a scheduled a hearing on "Nominations" which includes the nomination of "William H. Pryor, Jr., to be a Member of the United States Sentencing Commission" and "Rachel Elise Barkow, to be a Member of the United States Sentencing Commission."

Regular readers may recall from this prior post that I am very excited about all three of the new nominees to fill open spots on the USSC. I am thus thrilled to see two of these nominees get a hearing only a few weeks after their nomination, but also a bit puzzled about why US District Judge Charles Breyer is not also having a hearing. (As a matter of pure speculation, I am inclined to guess that Judge Breyer's nomination is more controversial perhaps because of his brother's status as a sitting Supreme Court Justice.)

Because I will be on the road all afternoon, I will not be able to follow closely this scheduled hearing, but others can watch it live via this link.  I am eager to hear reports on whether the questioning of these two nominees are tough or sweet, as well as whether their views on the import and importance of federalism concerns come up.  (I would also love to see Senators Leahy and Paul ask the nominees whether they share my perspective on the proposed Justice Safetly Valve Act of 2013.)

Some recent and older related posts:

• Prez Obama makes three great new nominations to the US Sentencing Commission
• If (and when?) confirmed, will Judge William Pryor champion federalism concerns within the US Sentencing Commission?
• "How can a member of the US Sentencing Commission promote federalism?"
• Justice Safety Valve Act gets bipartisan introduction in House of Representatives
• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013

New bipartisan House Judiciary Committee task force to examine overcriminalization

As reported in this Wall Street Journal article, Congress is creating a new federal criminal justice task force to address the problem of Congress creating too much federal criminal justice.  The article is headlined "Task Force Aims to Lighten Criminal Code: Bipartisan Congressional Initiative Targets Bloated Federal Provisions Cited by Critics for Driving Up Incarceration Rates," and here are excerpts:

Congress plans this week to create a new, bipartisan task force to pare the federal criminal code, a body of law under attack from both parties recently for its bloat.

The panel, which will be known as the House Committee on the Judiciary Over-Criminalization Task Force of 2013, will comprise five Republicans and five Democrats.  It marks the most expansive re-examination of federal law since the early 1980s, when the Justice Department attempted to count the offenses in the criminal code as part of an overhaul effort by Congress.

Rep. Bobby Scott (D., Va.) said he expected the committee to work through consensus. "We've been warned it's going to be a working task force and it means we'll have to essentially go through the entire code," he said.

Rep. F. James Sensenbrenner (R., Wis.) a longtime champion of overhauling the code, will lead the task force.  He is expected to reintroduce a bill he has tried to get through several congresses that would cut the size of the criminal code by a third. "Overcriminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of problems," he said.

In a city with deep political divisions, the expansion of federal criminal law has created a coalition of allies from opposite sides of the aisle, including the conservative Heritage Foundation, the libertarian Cato Institute, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and the American Bar Association. Legal experts estimate there are 4,500 criminal statutes and tens of thousands of regulations that carry criminal penalties, including prison.

The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year. In recent years, states have reversed years of steady increases by reducing their prison populations while the number of people held at the federal level has continued to climb.  Federal lawmakers and legal experts attribute part of the continuing increase to the rise in criminal offenses and regulations that carry prison time and the creation of laws that don't require knowledge of wrongdoing.

Democrats have long opposed the growth of parts of the system, blaming mandatory minimums for the increase in the federal prison population, especially the rise in African-American inmates.  For Republicans, the encroachment of federal law into areas that could be handled by the states is a top concern....

Other committee members include Rep. Raul Labrador (R., Idaho) and Rep. Karen Bass (D., Calif.). Recommendations made by the task force will be taken up by the House Judiciary Committee, Chairman Robert Goodlatte (R., Va.) said in an interview.

As the first sentence of this post suggests, I am not especially optimistic about the prospects for a new federal criminal justice entity doing a robust job of curtailing the size and scope of the federal criminal justice system.  Nevertheless, simply the creation of this new task force, as well as its composition and commitment to work via consensus, suggests that at least a few persons inside the Beltway have come to realize there can and should be bipartisan efforts to shrink the considerable costs of the massive modern federal criminal justice system.

Should the top 1% get sentenced extra tough for defrauding Social Security?

The question in the title of this post is prompted by this notable report of an interesting federal sentencing proceeding taking place today in Minnesota.  Here are the basics:

A North Oaks couple will be sentenced Monday for defrauding the Social Security Administration of more than $300,000 in medical assistance despite a family net worth of $11 million. James and Cynthia Hood pleaded guilty in October to falsely claiming $332,000 in medical assistance payments for their seriously disabled children over five years.

Prosecutors are recommending a 41- to 50-month sentence for James Hood, but no prison time for Cynthia Hood ecause of the critical role she plays in caring for her two disabled children.  One is autistic and the other has spastic quadriplegic cerebral palsy.

U.S. District Judge Joan Ericksen is expected to sentence the couple in a hearing beginning at 11 a.m. at the federal courthouse in Minneapolis.

The U.S. attorney’s office stated it “does not object to a non-incarcerative sentence for Cynthia Marsalis Hood, which includes home confinement, community service and a fine.” She should normally receive a prison sentence of 27 to 33 months for her conduct, federal prosecutors said in a memorandum last month.

The Hoods’ three children are 15-year-old triplets. Two of them are described by the prosecutors as “severely disabled.” Cynthia Hood sleeps next to one child “on a nightly basis” to keep her airways clear, in addition to helping “with all toileting and bathing needs.”...

The prosecution’s recommendation for a lighter sentence cites specific paragraphs from federal guidelines that indicate Cynthia Hood may have cooperated with the federal investigation. When they pleaded guilty in October, she and her husband paid the U.S. Marshals Service $484,312 as part of the plea agreement....

James Hood is a retired professor at Tulane University in New Orleans. Following Hurricane Katrina in 2005, the couple “decided to relocate to Minnesota to take advantage of the health care and educational resources available for their children,” the court documents state.

Social Security Income (SSI) benefits for a child require that a parent and child have no more than $2,000 in income and assets, excluding a house and vehicle. “SSI is meant to be a resource of last resort,” prosecutors wrote. However, in a benefits interview in February of 2006, Cynthia Hood lied, claiming her husband lived in Louisiana and she was the sole legal guardian of her children, authorities said. She also lied about her assets and said she only had $1,400 in the bank, they said.

She failed to disclose that she and her husband owned a house in Louisiana that they had listed for sale at $278,000, that she held at least 16 bank accounts while he had 68 bank accounts, and that their combined interest income in 2006 was $183,000, prosecutors said.   Her husband also owned a farm in Batavia, Iowa, that consisted of 180 acres of timber and farmland where corn and soybeans grew, with an income in 2005 of $187,910 that included $19,000 in state and federal agricultural payments.

The documents state that Cynthia Hood was purportedly unaware that for three years, they also received Medicaid payments from Louisiana for their children, thereby defrauding both Minnesota and Louisiana at the same time.  The medical payments Hood received in Minnesota included more than $20,000 per year in salary to serve as a personal attendant for her children and $30,000 for a wheelchair-accessible elevator installed in the Hoods’ North Oaks home.

I would like to see the proverbial "book" thrown at these white-collar scoundrals, but I do not see the value or need for that book to include costly federal incarceration for either of these defendants.

In my view, it would be far more fitting to require James Hood to do 3+ years of community service rather than spend time (and taxpayer money) getting three squares and a cot in some low-level federal prison facility.  I think Mr. Hood could and should be ordered as part of probation to helping truly poor people secure the Medicaid funding they deserve or ordered to spend time back in New Orleans helping truly needy folks still struggling with post-Katrina challenges.

UPDATE:  This follow-up press report reports on the the sentencing outcomes for the Hoods, which appear to track the recommendations made by prosecutors:

A wealthy North Oaks woman will serve no prison time for defrauding Medical Assistance of $332,000. On Monday, U.S. District Judge Joan Ericksen sentenced her to probation instead, saying her two severely disabled children “are very, very dependent on you.”

Ericksen ordered Cynthia Hood, 55, to pay a $300,000 fine, but said she was entitled to the lighter sentence because she was not the fraud’s ringleader, cooperated with authorities in investigating her husband, and was essential to caring for the children.

Her husband, James Hood, 69, was sentenced to 3½ years in prison and must pay a $200,000 fine. Erickson called his actions “despicable.”

Notable new Judge Weinstein opinion on child porn sentencing for juve offender

Over the weekend, experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) alerted me to what he called a "new and (again) excellent opinion by Judge Jack Weinstein" in U.S. v. D.M., 12-CR-170 (EDNY May 1, 2013) (available here).  The opinion runs nearly 50 pages, and Mark provided a summary which he has graciously allowed me to post here:

D.M. is a child porn possession case wherein Judge Weinstein imposed straight probation. What is rather unusual about the case (in addition to the sentence imposed) is the fact that the government initially charged the defendant with distribution, which carries a 5-year mandatory minimum, but later allowed the defendant to plead to a simple possession charge in order for the court not to be bound by the mandatory minimum after the defendant successfully completed a couple of polygraphs regarding whether he intended to distribute (as is typical, he had used a peer-to-peer site to obtain the contraband).

The nature of the plea negotiation is quite interesting, and, as Judge Weinstein rightly notes, counsel for both sides should be congratulated for their effort to seek justice, as opposed to the all-so-typical bidding war regarding months' imprisonment that mirrors what occurs in civil settlement negotiations rather than what should occur (and what did occur here). 

Judge Weinstein begins the opinion as follows: “This case illustrates the sensible cooperation of prosecutor, defense, experts and the court to save rather than destroy an adolescent found to have used his computer to view child pornography.”  How many judges can say that in any criminal case that is resolved by plea?  Far, far too few. 

Judge Weinstein ends thus: “The sentence imposed will provide an opportunity for defendant to succeed in therapy, at school, at attaining employment, and at becoming a functioning and law-abiding member of society. A sentence involving incarceration has been considered and is rejected.  All concerned are best served by following this course.”

This is a good read for all, regardless of practice focus. (Of course, those who have clients charged with child porn, it is a particularly good case to read and cite, not the least of which is because it is the first published opinion to discuss in substantive detail the Commission’s new Child Porn report).

Is adjective "draconian" fitting for a proposed 13-year prison sentence for insider trader?

The question in the title of this post is prompted by this lengthy new Bloomberg article about the defense's sentencing submission in a high-profile, white-collar federal sentencing scheduled for later this month.  The Bloomberg article is headlined "Chiasson Seeks Leniency From U.S. Judge Citing Charitable Deeds," and here are excerpts:

Level Global Investors LP co-founder Anthony Chiasson, convicted of an insider-trading scheme that reaped $72 million, asked a judge to give him less time in prison than the 13-year term called for by U.S. sentencing guidelines.

Lawyers for Chiasson, 39, called such a sentence “draconian” in a, April 29 court filing. They urged U.S. District Judge Richard Sullivan in Manhattan to impose an unspecified shorter prison term, saying the alleged crimes were “aberrant” and that Chiasson has led an “exemplary life.”

Defense lawyers Greg Morvillo and Reed Weingarten cited Chiasson’s charitable work, including his effort to save his Catholic Jesuit high school in Portland, Maine, from closure, the creation of a scholarship program for his alma mater, Babson College, and his contributions to the Robin Hood Foundation and the Michael J. Fox Foundation.  “Anthony Chiasson is an extraordinary man,” Morvillo and Weingarten said in a memo to Sullivan. “But for the conduct that brings him before the court, Anthony has led an exemplary life.”

Chiasson, who began his career on Wall Street at Solomon Brothers and left SAC Capital Advisors LP to start the hedge fund, is scheduled to be sentenced May 13.  While U.S. court officials said that based on non-binding guidelines Chiasson should serve 121 to 157 months in prison, his lawyers said the appropriate range is 78 to 97 months.

A Manhattan federal jury in December found Chiasson guilty of five counts of securities fraud and convicted former Diamondback Capital Management LLC portfolio manager Todd Newman of one count of conspiracy and four counts of securities fraud.  Newman is scheduled to be sentenced May 2.  The U.S. alleged that the two portfolio managers were part of a “corrupt chain” of hedge-fund managers and analysts and insiders at technology companies who swapped and traded on illicit tips.  The U.S. said Level Global earned $68 million as a result of the insider trading based on material nonpublic information Chiasson received from Spyridon “Sam” Adondakis, a former Level Global analyst who worked for him. 

Defense lawyers estimated the fund earned $11.7 million as a result of trading in the stocks of Dell Inc. and Nvidia Corp. They disputed the government’s allegation that Chiasson based the transactions on illicit information and argued that federal sentencing guidelines allow prosecutors to inflate profits generated as a result of alleged crimes.  “There is only one reason the range is so high: the guidelines’ unrelenting predisposition to punish profit,” Morvillo and Weingarten said.

Morvillo and Weingarten also argued that Chiasson “should not be required to forfeit gains of any co-conspirators.” They said that the fund earned more than $21.6 million on trades by David Ganek, a Level Global co-founder who was ruled by Judge Sullivan to be an uncharged co-conspirator in the insider- trading scheme.  Adondakis, who pleaded guilty, testified that he didn’t tell Ganek about the source of his tips.  Ganek hasn’t been charged with wrongdoing....

Chiasson’s lawyers argued that he deserves a sentence comparable to others convicted of insider trading, including former Goldman Sachs Group Inc. director Rajat Gupta, who was ordered to serve two years in prison, and former Primary Global Research LLC executive James Fleishman and Michael Kimelman, the co-founder of Incremental Capital LLC, who were both given 30- month prison terms.  In January, a federal appeals court allowed Gupta to remain free while he fights his conviction.  Both Fleishman and Kimelman were recently released from prison.

The adjective draconian is often used now as a synonym for unduly harsh punishments, and I am sure I have sometimes used the term this way in various settings. But the faint-hearted linguistic originalist in me cannot help but note that arguably no prison terms should be really called draconian because incarceration was largely an unknown punishment in achient Greece and Draco the lawgiver was (in)famous for prescribing death as a punishment for both major and minor crimes. (With tongue-in-cheek, I suppose maybe a different (but less real) Draco could be expected to be a proponent of long prison terms, though I this this character probably realized he and his family only narrowly avoid imprisonment in Azkaban.)

Historical and literary references aside, these latest insider-trader, white-collar sentencing cases are surely worth watching closely.  My sense is that, especially with the economy seeming to be improving, there is diminishing public and social pressure to "throw the book" at wall-street types like Anthony Chiasson.  And yet, as the arguments in Chiasson's case highlight, every below-guideline sentence given in major white-collar cases provide a strong defense argument in later cases that only below-guideline sentences are proper pursuant to the sentencing commands of 3553(a).

US Sentencing Commission names new executive director

I am very pleased to report, as detailed in this official press release, that a former law school classmate of mine has now been named as the next staff director of the US Sentencing Commission.  (Apparently, the fact that Harvard Law School lacked any kind upper-level sentencing course in the early 1990s did not unduly retard the professional development of some of its students).  Here are the details:

The United States Sentencing Commission announced the appointment of Kenneth P. Cohen as its new Staff Director, succeeding Judith W. Sheon. Cohen has served as the Commission’s General Counsel since February 2007 and previously served as its Director of Legislative Affairs.  His appointment becomes effective on June 2, 2013....

Cohen graduated with highest distinction from the University of Virginia in 1988 and cum laude from the Harvard Law School in 1993.  Previously he served as a credit analyst for Chemical Bank in New York, and he was an associate at the Washington D.C. law firm of Covington & Burling from 1993 to 1997.  He also served at the Commissi on as an attorney advisor to then-commissioner Judge Deanell Tacha, and he served on detail as counsel to Senate Judiciary Committee Chairman Arlen Specter from 2005 to 2006.

The same press release also notes another notable recent new hire on the USSC: "The Commission also last month added Noah D. Bookbinder as Director of Legislative and Public Affairs.  Bookbinder previously served as Chief Counsel for Criminal Justice for the Senate Judiciary Committee, where he worked from 2005 to 2013, and as a Trial Attorney for the United States Department of Justice’s Public Integrity Section from 1999 to 2005.   He graduated summa cum laude from Yale University in 1995 and with distinction from Stanford Law School in 1998 and served as a law clerk to United States District Judge Douglas Woodlock."

"Passive Pedophiles: Are child porn viewers less dangerous than we thought?"

The title of this post is the headline of this notable recent commentary by Emily Bazelon at Slate. Here are excerpts:

Making child pornography is abuse.  What about possessing it? As a group, these offenders — the ones who look but don’t abuse children to create new images — are serving increasingly long prison sentences. In 2004, the average sentence for possessing child pornography was about 4 ½ years. In 2010, it was almost eight years.  Child sex offenders may also be kept in prison beyond their release dates through “civil commitment” if the state deems that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”

It’s hard to feel concern for people (mostly men) who prowl the Internet for sexually abusive images of children, some of whom are very young.  Their crimes aren’t “victimless,” as defense lawyers sometimes argue.  These men create the market for new images.  They are the demand behind the supply.  I’ve written about how hard it is for women who were abused and photographed as girls to know that men are still viewing, and taking pleasure in, the record of their suffering — and about the victims’ efforts to win restitution from these men.

But the main reason Congress has upped the penalties for men who possess child pornography is the deep-seated belief that many of them physically abuse children and that they are highly likely to keep doing so because they can’t stop themselves.  Is that true? I’ve heard it so many times it’s hard to think otherwise.  Yet that premise is contested in a new 468-page report by the U.S. Sentencing Commission (the body Congress established to advise it about federal sentencing law).  The commission did its own research.  It says the federal sentencing scheme for child pornography offenses is out of date and argues that this leads to penalties that “are too severe for some offenders and too lenient for other offenders.”...

This isn’t an easy subject.  Punishments for sex offenders move only in one direction in this country — they get harsher.  But the Sentencing Commission’s critique should get a serious hearing.  Prison comes with a cost for taxpayers as well as the people it incarcerates.  And if there’s increasing hope for effective treatment, as the commission suggests, investing in it could save kids....

Maybe men convicted of possessing child pornography probably reoffend more than the researchers can measure because they don’t tell.  Surely they commit more new crimes than the number they get arrested for, as the commission is careful to say.  The question is how many more.  Do they really pose a different risk in this regard than other criminals do?  The Justice Department “takes issue” with the commission’s conclusions about recidivism and the link between viewing pornography of children and molesting them. These questions won’t be resolved any time soon.  In the meantime, Congress could fix the aspects of child pornography sentencing that both DOJ and the Sentencing Commission see as broken.

Months before scheduled sentencing, lawyers buzzing about Jesse Jackson Jr.'s mental health

As highlighted in this story about a hearing in a high-profile federal case in DC, "prosecutors raised the prospect on Friday in court of having their experts examine former Rep. Jesse Jackson Jr. if his lawyers plan to raise his bipolar disorder as a mitigating factor in trying to reduce his prison sentence." Here is more:

U.S. District Court Judge Amy Berman Jackson made no decision after prosecutor Matt Graves said he wanted to “alert” her to the possible issue in advance of the sentencing July 1 of Jackson and his wife, former Ald. Sandi Jackson.  The two pled guilty in February to looting $750,000 from campaign funds for personal use.

Judge Jackson asked for the hearing because she is taking over the case after U.S. District Court Judge Robert Wilkins — who handled the pleas of the couple — withdrew without explanation from the case.

Graves said the government is “entitled” to have Jackson checked “by our own experts” if Jackson’s lawyers decide to argue Jackson’s mental health should be taken into consideration by the judge when she sentences him.

Defense attorney Reid Weingarten told Judge Jackson that the former congressman’s bipolar disorder is well known and “not controversial.”  Weingarten also said they do not intend to argue that Jackson’s “criminal activity” was caused by his mental illness.  The former congressman was hospitalized at Mayo Clinic last year for treatment of bipolar depression.

Judge Jackson — who consolidated two separate sentencing dates into one morning July 1 sentencing session for the couple — had nothing before her to rule on, since the defense lawyers have yet to show their hand.  The judge signaled that the former congressman’s mental state may be a factor for her, since she said she was required to consider “who he is as a person.”

Recent related posts:

• You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?
• Jacksons plead guilty and federal prosecutors recommend significant prison terms for both
• Noteworthy new lawyer and now a new judge for Jesse Jackson Jr. sentencing

"Sometimes a number is just a number, but when the number at issue triggers an enhancement under the Sentencing Guidelines, that number matters."

The title of this post is the first sentence of this notable Eleventh Circuit panel decision today in US v. Washington, No. 11-14177 (11th Cir. April 26, 2013) (available here).  Here is the rest of the first paragraph, as well as an interesting extra little part of the story from the final section of the Washington opinion (cites omitted):

In this appeal we decide whether the government presented sufficient evidence that 250 or more persons or entities were victimized by the fraud scheme in which Gary Washington participated.  Because the government failed to put on any evidence that there were 250 or more victims, we vacate Mr. Washington’s sentence and remand for the district court to resentence Mr. Washington with a 2-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) rather than a 6-level enhancement under § 2B1.1(b)(2)(C)....

The government asks that it be allowed to prove on remand that there were 250 or more victims for whom Mr. Washington was responsible.  We decline the government’s request. Nothing prevented the government -- which was aware of Mr. Washington’s objection -- from putting on evidence concerning the number of victims at the sentencing hearing, and a party who bears the burden on a contested sentencing issue will generally not get to try again on remand if its evidence is found to be insufficient on appeal.  We have discretion to permit the government to present evidence at resentencing even though it amounts to giving the party a second bite at the apple.  But often a remand for further findings is inappropriate when the issue was before the district court and the parties had an opportunity to introduce relevant evidence, and here the government failed to present any evidence concerning the number of victims.