Sunday, May 22, 2016

A bunch of timely and notable new Quick Facts from the US Sentencing Commission

The US Sentencing Commission has its pretty new website up and running, and my only knock on the site is that it is not easy anymore to see exacly what is new on the site.  Fortunately, I somehow discovered that the Commission released two notable new Quick Facts covering federal drug sentencing and mandatory minimum sentences.  (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.")

In addition to these two new items, the Commission also released two other timely "Quick Facts" last month, and here are links to all four of these reader-friendly USSC products:

May 22, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

Tuesday, May 03, 2016

US Sentencing Commission working on impressive looking new website

I am excited and intrigued to see a new item on the US Sentencing Commission's (old) website titled "Commission Launches Redesigned Beta Website."  Here is the explanation:

We are pleased to invite you to explore an in-progress (beta) version of the Commission’s redesigned website [available here].  We have more work to do, styling content and fixing bugs but by using the site, you’ll help show us what works, and what doesn’t. E-mail comments to: PubAffairs@ussc.gov (link sends e-mail).

I spent a few minutes poking around this new USSC site, and I find it very pretty but not so easy to navigate (though this may be due to its unfamiliarity).

May 3, 2016 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Monday, May 02, 2016

Another prominent elderly corrupt politician presenting dynamic federal sentencing issues

NY-DK527_NYCHAR_11U_20150122183914This lengthy Wall Street Journal article, headlined "Sheldon Silver Set to Be Sentenced: Judge has wide leeway as prosecution asks for long prison term, and defense seeks leniency for the former Assembly speaker," reports on issues surrounding a high-profile politician's federal sentencing scheduled for tomorrow in New York. Here are excerpts:

A federal judge is expected to decide Tuesday whether former New York state Assembly Speaker Sheldon Silver deserves a long prison sentence for years of corruption, or leniency because he is ill and says he is sorry.

Leading up to the decision, lawyers for Mr. Silver have filed letters of support from ex-colleagues, constituents, family members and even a former employee at a Chinese restaurant he frequented. “I know that Sheldon Silver has been convicted, but please consider his kind personality and his support to the community,” wrote Fei Chen, who was a cook at Nom Wah Tea Parlor in Manhattan’s Chinatown.

The endorsement is part of a trove of materials from both the prosecution and defense that reflect the range of factors judges are supposed to consider in public-corruption cases and the latitude they have in deciding on punishment. Judges in cases like Mr. Silver’s grapple with how to account for breaking the public trust, and to what extent a sentence should serve as a deterrent to future crime.

Mr. Silver, a Manhattan Democrat who served as Assembly speaker for more than two decades, was convicted of honest-services fraud, extortion and money laundering. Prosecutors said Mr. Silver, 72 years old, netted about $4 million in kickbacks from schemes involving a real-estate company and an oncologist. Attorneys for Mr. Silver have said they would appeal.

Prosecutors have asked U.S. District Judge Valerie Caproni for a prison sentence greater than any previously imposed on legislators convicted of public corruption in the state. Court filings suggest the longest sentence for such an official was 14 years. “Silver exploited the vast political power entrusted in him by the public to serve himself,” prosecutors wrote.

Defense lawyers have asked for leniency, suggesting “rigorous community service.” The former legislator also wrote an apology letter to the judge. “I failed the people of New York,” Mr. Silver’s letter said.

U.S. law says judges should decide sentences based not only on the offense, but also the defendant’s “history and characteristics.” Also relevant, the law says, are deterrence, public protection and the needs of the defendant, including medical care. In court filings, Mr. Silver’s lawyers have highlighted his prostate cancer, bile-duct obstruction and knee problems.

For judges, sentencing in public-corruption cases presents a particular quandary: While the convicted official usually isn’t considered a threat to public safety, or capable of committing the same crimes in the future, the government has an incentive to punish such officials harshly to deter others from similar offenses.

“The difficulty you have in high-profile cases is that there is a philosophical argument that general deterrence sometimes trumps all other factors,” said Benjamin Brafman, a defense attorney not connected to the Silver case who represented Carl Kruger, a former state senator who was convicted on public-corruption charges and sentenced to seven years.

In the case of Mr. Silver, Judge Caproni can also consider prosecutors’ evidence that Mr. Silver used his position to help two women with whom he had extramarital affairs because, like the letters, it speaks to his character. In legal filings, attorneys for Mr. Silver said the allegations were unproven.

In recent years, public-corruption cases have garnered more attention, particularly because prosecutors have become increasingly vocal when bringing charges, said Deborah Gramiccioni, executive director of NYU’s Center on the Administration of Criminal Law. “The public’s indignation perhaps seems more pronounced,” said Ms. Gramiccioni, a former federal prosecutor who worked on public-corruption cases. But such indignation doesn’t necessarily influence judges’ decisions, she said....

Data show that New York judges often diverge from the federal guidelines when awarding prison sentences. Of 3,301 cases sentenced in federal court in New York in fiscal 2015, judges awarded sentences within the guideline range in 29.5% of cases, compared with 47.3% nationwide, according to federal statistics. Of 544 fraud cases in New York, 28.5% of sentences fell within the guidelines. Just five people received sentences above the guideline range.

In Mr. Silver’s case, sentencing guidelines suggest a range from about 22 to 27 years. In sentencing filings, both prosecution and defense attorneys cite many of the same public-corruption cases, including that of Mr. Kruger, the former state senator. Attorneys for Mr. Silver note that Mr. Kruger was sentenced to well below the federal recommendations. But prosecutors note that Mr. Kruger pleaded guilty, which they view as a crucial difference. “Unlike Kruger, here Sheldon Silver has accepted no responsibility and shown no remorse for his crimes,” they said.

May 2, 2016 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, April 30, 2016

"Why Vague Sentencing Guidelines Violate the Due Process Clause"

The title of this post is the title of this new article by Kelsey Heilman now available via SSRN. Here is the abstract:

The United States Sentencing Guidelines are the mandatory starting point and the lodestone for the sentences of 75,000 federal defendants each year.  Though advisory after the 2005 Supreme Court decision in United States v. Booker, the Guidelines continue to exert tremendous influence over federal sentencing practice.  Last term, in Johnson v. United States, the Supreme Court struck down as unconstitutionally vague a sentencing provision of the Armed Career Criminals Act.  In the ensuing year, a circuit split developed regarding whether that decision dooms a textually identical provision of the Guidelines, with some courts holding advisory sentencing guidelines are completely immune from due process challenges.  In this Article, I argue the Guidelines violate the Due Process Clause of the United States Constitution if they are so vague they deny fair notice to defendants and invite arbitrary enforcement by judges.

April 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (3)

Thursday, April 28, 2016

"A Legal Definition of Leadership: Understanding Section 3B1.1 of the Federal Sentencing Guidelines"

The title of this post is the title of this new paper now available via SSRN authored by Marin Roger Scordato. Here is the abstract:

This Article offers a formal legal definition of “leadership” drawn from an unusual quarter: criminal sentencing. Sentencing guidelines that include adjustments based on the extent to which a defendant was a “leader” have spawned hundreds of appellate court cases attempting to develop a thoughtful, workable definition of the term. Reviewing these cases, this Article offers 25 separate characteristics courts have found material to a legal judgment as to whether an individual has been a leader within a criminal enterprise.

Eleven of these characteristics can be organized into three categories, which operate on the boundaries of the leadership concept.  The first category contains those circumstances courts have found do not, by themselves, confer leadership status.  For example, courts have found that controlling property alone does not make one a leader.  The second category of leadership characteristics are those circumstances that are not, in themselves, sufficient to show a defendant is not a leader.  For example, there may be more than one leader in a group, so the identification of one or more other leaders in a group does not preclude the possibility of characterizing a defendant as a leader as well.  A third category of leadership focuses on the external group functions of leadership, the ways in which a leader monitors and mediates the points of contact between the group as a separate entity and important elements outside the group.

The remaining 14 characteristics comprise a fourth category that resides at the center of what courts find establishes leadership status. To courts, the gravamen of leadership is the control, organization, and responsibility for other group members.  Examples of characteristics in this category are that a leader inspires members to make sacrifices for the group, possesses decision-making authority within the group, carries ultimate responsibility for the group’s success, and resolves disputes within the group.

This Article concludes by noting this formal legal definition of leadership, given its basis in criminal sentencing, has generated a set of leadership characteristics all of which appear to enjoy the possibility of general applicability to a broad range of factual contexts including standard business settings, but still notes how very far the formal legal definition of leadership is from conventional definitions grounded explicitly in a moral, value-laden context.

April 28, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, April 21, 2016

"Slimy Sheldon Silver should serve substantial slammer stint, sentencing statement says"

An awesome, amusing, amazing alliteration about prosecutors' potent politico punishment proposal after federal fraud findings made for too good a title for me not to reuse the headline of this New York Daily News piece.  Here are the serious senetencing specifics:

Disgraced ex-Assembly Speaker Sheldon Silver should serve more than 14 years behind bars for corruption — a longer term than any other state pol convicted of similar crimes, federal prosecutors argued Wednesday.

Silver, a Democrat convicted last November on seven corruption counts, should serve a sentence that reflects the “unprecedented magnitude, duration, and scope of his abuse of power,” Manhattan federal prosecutors said in the sentencing memo.

“It should reflect the immeasurable damage Silver caused to the democratic process and to the public trust. It should punish Silver for the vast harm he has caused and the position of trust that he exploited, deter other elected officials from the temptation towards corruption, and communicate to the public that the rule of law applies even to the most prominent of public officials.”...

Sentencing guidelines for Silver suggest a range from 262 to 327 months — that’s between 22 and 27 years — in a federal lockup. “The guidelines range is high because the United States Sentencing Commission explicitly has recognized the ‘threat to the integrity of democratic processes’ caused by public corruption offenses,” the feds wrote.

Manhattan U.S. Attorney Preet Bharara’s office also said the hefty suggestion stemmed from “the many egregious aspects of the defendant’s crimes — including Silver’s role as a high-level public official, his engagement in multiple corrupt schemes, the millions of dollars in bribe money Silver took in, and his laundering of his crime proceeds.”

Bharara wants Silver, 72, to forfeit the $5.2 million he pocketed in the scheme and cough up “a substantial fine of at least $1 million is appropriate in this case, particularly in light of the defendant’s significant remaining resources and his more than $70,000-per-year pension, paid for by New York State taxpayers.”

Silver’s lawyers maintain in their sentencing memo that Manhattan Federal Judge Valerie Caproni should consider “a term of rigorous community service — whether as an alternative to incarceration, or as a component of an appropriate below-guidelines sentence” due to his age and poor health. "One letter after another — written with full awareness of the jury's verdict - from Mr. Silver's constituents, neighbors, friends, family, fellow Assembly members, and other government officials attest to his outstanding character and unrivaled contributions," they wrote in the memo, filed Wednesday.

Silver's lawyers went on to quote a key staffer who said that Silver "acted with integrity and exhibited a deep, consistent commitment to issues that he felt best served the public interest." They also quoted former Mayor David Dinkins as saying, "Mr. Silver has shown himself to be a person of integrity, committed to working in partnership on the side of New York City's citizenry."

April 21, 2016 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, April 20, 2016

Lots of interesting post-Booker guideline talk as federal defendant gets another sentencing win from SCOTUS

The Supreme Court today handed down its opinon this morning in Molina-Martinez v. US, No. 14-8913 (S. Ct. April 20, 2016) (available here), a little case about the application of plain error review of guideline calculation errors.  Excitingly, because the majority opinion authored by Justice Kennedy has lots of dicta about post-Booker sentencing, and because a concurrence by Justice Alito complains about some of that dicta, Molina-Martinez is now a must-read for all sentencing practitioners.  

I will likely have some further commentary about Molina-Martinez after I get a chance to read it thoroughly.  In the meantime, here are a couple of key passages from the majority opinion:

This case involves the Federal Sentencing Guidelines. In sentencing petitioner, the District Court applied a Guidelines range higher than the applicable one. The error went unnoticed by the court and the parties, so no timely objection was entered. The error was first noted when, during briefing to the Court of Appeals for the Fifth Circuit, petitioner himself raised the mistake. The Court of Appeals refused to correct the error because, in its view, petitioner could not establish a reasonable probability that but for the error he would have received a different sentence. Under that court’s decisions, if a defendant’s ultimate sentence falls within what would have been the correct Guidelines range, the defendant, on appeal, must identify “additional evidence” to show that use of the incorrect Guidelines range did in fact affect his sentence. Absent that evidence, in the Court of Appeals’ view, a defendant who is sentenced under an incorrect range but whose sentence is also within what would have been the correct range cannot demonstrate he has been prejudiced by the error....

The Court of Appeals for the Fifth Circuit stands generally apart from other Courts of Appeals with respect to its consideration of unpreserved Guidelines errors. This Court now holds that its approach is incorrect.

Nothing in the text of Rule 52(b), its rationale, or the Court’s precedents supports a requirement that a defendant seeking appellate review of an unpreserved Guidelines error make some further showing of prejudice beyond the fact that the erroneous, and higher, Guidelines range set the wrong framework for the sentencing proceedings. This is so even if the ultimate sentence falls within both the correct and incorrect range. When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error....

In the ordinary case the Guidelines accomplish their purpose. They serve as the starting point for the district court’s decision and anchor the court’s discretion in selecting an appropriate sentence. It follows, then, that in most cases the Guidelines range will affect the sentence. When that is so, a defendant sentenced under an incorrect Guidelines range should be able to rely on that fact to show a reasonable probability that the district court would have imposed a different sentence under the correct range. That probability is all that is needed to establish an effect on substantial rights for purposes of obtaining relief under Rule 52(b).

And here is the start of the concurrence authored by Justice Alito:

I agree with the Court that the Fifth Circuit’s rigid approach to unpreserved Guidelines errors is incorrect. And I agree that petitioner has shown a reasonable probability that the District Court would have imposed a different sentence in his case if his recommended Guidelines sentence had been accurately calculated. Unlike the Court, however, I would not speculate about how often the reasonable probability test will be satisfied in future cases. The Court’s predictions in dicta about how plain-error review will play out are predicated on the view that sentencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate. We should not make predictions about the future effects of Guidelines errors, particularly since some may misunderstand those predictions as veiled directives.

April 20, 2016 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 (4)

Saturday, April 16, 2016

US Sentencing Commission adopts a bunch of (large and small) federal sentencing guideline amendments

Late yesterday before I had to jump on an airplane, I watched online this scheduled public meeting of the US Sentencing Commission where a number of new guideline amendments were formally and unanimously passed by the USSC. The hour-long meeting included a few interesting comments by a few participants, and I was particularly struck by the Chair's comments (available here) that one proposed amendment concerning the animal fighting guideline engendered "more pieces of public comment on this amendment than any in the history of the Commission." (This USSC page with public comments includes this entry that reports that an ASPCA Form Letter was submitted by 48,116 citizens on this front that urges the Commission to act to "ensure higher sentences" for federal animal fighting offenses.)

This press release from the USSC provides this summary of the substantive work done by the Commission yesterday afternoon.  Here are excerpts:

The bipartisan United States Sentencing Commission (“Commission”) voted unanimously to amend the federal sentencing guidelines, including significant changes pertaining to immigration policy, compassionate release and animal fighting.

Based on the Commission’s data and public comment, the Commission voted to amend the illegal reentry guidelines. The promulgated amendment modifies the existing guideline by (1) eliminating the “categorical approach,” which has been a source of widespread complaints by judges, the Department of Justice, and others; and (2) recalibrating the guideline to account for prior criminal conduct in a more proportionate manner.  The newly adopted amendment adds a new tiered enhancement specifically aimed at criminal conduct occurring after a defendant reentered the country illegally, including prior illegal reentry offenses. The current base offense level for illegal reentry offenders will remain the same....

The Commission also amended the federal sentencing guidelines for alien smugglers, enhancing penalties for those who smuggle vulnerable unaccompanied minors.  Today’s amendment also makes clear that a four level sentencing enhancement applies for any smuggling case involving sexual abuse.

Separately, in response to Congressional changes to the Animal Welfare Act, the Commission’s own research and analysis, and nearly 50,000 citizen letters, the Commissioners also voted to strengthen the federal sentencing guidelines to better reflect the cruelty and violence associated with animal fighting offenses.  Specifically, the Commission voted to increase the base offense level for animal fighting offenses from a range of 6 to 12 months to a more serious range of 21 to 27 months.  The amendment also establishes a new, corresponding sentencing guideline range for anyone that attends an animal fighting venture with a minor under 16 years old.

In addition, the Commission strengthened and broadened the criteria for compassionate release with several meaningful changes. Congress charged the Commission with issuing policy statements describing what should be considered extraordinary and compelling reasons for a sentencing reduction.  As amended, federal inmates may be eligible for compassionate release based on four categories relating to medical conditions, age, family circumstances, or other extraordinary and compelling reasons.  The Commission’s action encourages the Bureau of Prisons (BOP) to use its current authority if an eligible offender meets any of the circumstances defined by the Commission’s expanded criteria for compassionate release.

In addition, the Commission voted to resolve certain circuit conflicts, in the area of child pornography, as well as to strengthen provisions pertaining to probation and supervised release.  Finally, the Commission took action on necessary conforming, technical changes in response to recently enacted legislation.

A reader-friendly version of these amendments are available at this link, and I hope in some future posts to highlight the part of these amendments likely to be most consequential in the future.

April 16, 2016 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Thursday, March 31, 2016

"A Fatally Flawed Proxy: The Role of 'Intended Loss' in the U.S. Sentencing Guidelines for Fraud"

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

Of all federal criminal defendants, those convicted of fraud are among the most likely to receive a sentence below the term recommended by the U.S. Sentencing Guidelines.  The most important (and controversial) driver of fraud sentences under the Guidelines is the economic loss — actual or intended, whichever is greater — resulting from the crime.

This Article examines the role of the “intended loss” calculation.  The U.S. Sentencing Commission designed the intended loss enhancement to function as a rule-oriented proxy for defendant culpability.  By applying the framework of rules and standards, this Article argues that culpability, by its nature, is too multifarious a concept to be accurately represented by a single variable.  Furthermore, a recently-enacted amendment to the definition of intended loss — which restricts its scope to losses “that the defendant purposely sought to inflict” — will only exacerbate the problem by excluding a significant subset of plainly culpable conduct.

Rather than attempt to fine-tune the intended loss calculation any further, this Article contends that the purposes of sentencing in general (and the goals of the Guidelines in particular) would be better served by enabling judges to conduct a more standard-based inquiry into the wide array of facts that can bear on culpability.  It evaluates several proposals that would give judges greater discretion while, at the same time, minimizing the risk of unwarranted sentencing disparities.

March 31, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3)

Thursday, March 17, 2016

"Easing Mandatory Minimums Will Not Be Enough"

The title of this post is the headline of this notable article in Judicature authored by one of my old bosses, Second Circuit Judge Jon O. Newman.  I recommend the full piece, and here is how it starts:

Congress is finally considering easing mandatory minimum penalties.  However, this effort, even if successful, will need to be complemented by actions taken by the United States Sentencing Commission and federal district judges.

If some mandatory minimum requirements are repealed or at least modified, there will be two immediate consequences.  First, prosecutors will be deprived of the awesome power to coerce a guilty plea by threatening to charge an offense that will subject a defendant to a mandatory minimum sentence.  Second, sentencing judges will be spared the often distasteful obligation to impose a required sentence that is more severe than the one they would have selected had they been free to use their sentencing discretion.

But these immediate consequences, desirable as they are, will be only the first of three steps needed to reduce the severity of sentences currently subject to mandatory minimum requirements.  The Sentencing Commission must take the second step of revising the Sentencing Guidelines, and then district judges must take the third step of using their authority to impose non-Guidelines sentences.

March 17, 2016 in Booker in district courts, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Tuesday, March 15, 2016

US Sentencing Commission hearing on proposed immigration and other guideline amendments

Tomorrow, as detailed at this webpage with the official agenda, the US Sentencing Commission is holding a public hearing to receive testimony from invited witnesses on proposed amendments to the federal sentencing guidelines. This event is being streamed live, and can be watched at this link.  I am hopeful that, as is the usual USSC practice, this webpage with the official agenda will eventually provide links to any and all submitted written testimony of the scheduled witnesses. 

Most of the conceptual and technical debate about guideline amendments this cycle are to be focused on the immigration guidelines, which have been subject to an array of criticisms over the years.  I will be especially interested to see what federal judges, practitioners and advocates have to say concerning the amendments that have been proposed by the USSC in this important arena.  As federal sentencing fans likely know, immigration cases are a huge part of the total federal criminal docket, especially in border states. Thus, any significant changes to the immigration guidelines is sure to have significant ripple effects throughout the entire federal criminal justice system.

March 15, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (0)

Sunday, March 13, 2016

"Feds want convicted journalist to serve 5 years, his lawyers ask for no prison time"

The title of this post is the headline of this interesting ArsTechnica article previewing an interesting federal sentencing scheduled for later this month in federal court in California.  Here are the particulars with all links from the original article to the parties' sentencing submissions and related materials:

Federal prosecutors have asked a judge to impose a sentence of five years against Matthew Keys, who was found guilty last year on three counts of criminal hacking under the Computer Fraud and Abuse Act.  That federal law, which was passed in 1984, was what the late activist Aaron Swartz was prosecuted under.  Last year, President Barack Obama called for Congress to expand prison sentences for those found guilty under this law.

Keys worked previously as an online producer for KTXL Fox 40, a Sacramento, California-based television station. Prosecutors argued that in December 2010, shortly after his dismissal, he handed over login credentials to a Tribune Media content management system (CMS), which allowed members of Anonymous to make unauthorized changes to a Los Angeles Times story. (At the time, both companies were both owned by Tribune Media.)  Those changes amounted to a short-lived prank: they lasted only 40 minutes, and there is little evidence that the prank was widely noticed. Criminal charges were not filed until March 2013.

Even after he was found guilty, Keys continued to deny the government’s narrative.  In a brief interview with Ars after his trial concluded, he described the prosecution’s theory as "total bullshit."

"A sentence of five years imprisonment reflects Keys’s culpability and places his case appropriately among those of other white-collar criminals who do not accept responsibility for their crimes," Matthew Segal, an Assistant United States Attorney, wrote in the Thursday sentencing memorandum.

In the 12-page filing, Segal explained that, although Keys initially "succeeded in deflecting suspicion away from himself," the FBI changed course after it reviewed chat logs found on the computer belonging to Wesley "Laurelai" Bailey, a former Anonymous member.  Those chat logs between Bailey and Ryan Ackroyd (aka "Kayla"), included a line where Kayla wrote: "Iol he's not so innocent and we have logs of him too, he was the one who gave us passwords for LA times, fox40 and some others, he had superuser on alot of media."  Segal explains further that Keys’ attack was "an online version of urging a mob to smash the presses for publishing an unpopular story," adding that Keys employed "means that challenge core values of American democracy."

Keys’ defense lawyers filed their own sentencing memorandum on Wednesday, asking the court to impose no prison time at all or go with a "non-custodial sentence."  The 69-page filing goes to great lengths to illustrate Keys lengthy history in journalism, going way back to his elementary school days when he edited the school bulletin.  "In recent years, Matthew’s sacrifices have paid off in the form of impactful journalism that has received national attention," wrote Jay Leiderman, his attorney, who has also worked on many other Anonymous-related cases.  "His stories have encouraged discourse, influenced policy and won the attention and accolades from his peers in the industry, public interest groups and even law enforcement officials."

Leiderman also notes that if the government’s recommendations stand, "[Keys] faces a far more severe sentence than any member of Lulzsec served.  60 months, which the Government seeks, would be more than any person engaged in hacking crimes during this period — by about double!"

I am a bit sorry I am not teaching my sentencing class this semester because the issues raised in this case and the parties' filing provide a great primer on guideline calculation disputes and the application of post-Booker sentencing jurisprudence based in the factors set forth in 3553(a). (I am teaching a 1L legal writing class in which students have to develop variance arguments for a white-collar offender, and I may urge my students to look at the parties' submissions for inspiration.)

March 13, 2016 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Thursday, March 03, 2016

"This Morning’s Breakfast, Last Night’s Game: Detecting Extraneous Influences on Judging"

The title of this post is the title of this notable new empirical article on SSRN authred by Daniel Chen, which actually has some encouraging federal sentencing findings. Here is the abstract (with the sentencing story highlighted):

We detect intra-judge variation in judicial decisions driven by factors completely unrelated to the merits of the case, or to any case characteristics for that matter.  Concretely, we show that asylum grant rates in US immigration courts differ by the success of the court city’s NFL team on the night before, and by the city’s weather on the day of, the decision.  Our data including half a million decisions spanning two decades allows us to exclude confounding factors, such as scheduling and seasonal effects.  Most importantly, our design holds the identity of the judge constant.

On average, US immigration judges grant an additional 1.5% of asylum petitions on the day after their city’s NFL team won, relative to days after the team lost.  Bad weather on the day of the decision has approximately the opposite effect. By way of comparison, the average grant rate is 39%.  We do not find comparable effects in sentencing decisions of US district courts, and speculate that this may be due to higher quality of the federal judges, more time for deliberation, or the constraining effect of the federal sentencing guidelines.

March 3, 2016 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Wednesday, February 24, 2016

"Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform"

The title of this post is the title of this notable new paper now available via SSRN authored by Mark Bennett, Justin Levinson and Koichi Hioki.  Here is the abstract:

White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission’s intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide-range of advocacy groups.  In November 2015, the Commission’s publicly announced proposed amendments became law without Congressional change.  These amendments, while commendable in process and purpose, fall short of sorely needed reforms that would serve to realign white-collar fraud punishments with legitimate penal justifications.  This Article portrays the recent historical tension between the Federal Sentencing Commission and federal judges, and presents the results of an original empirical study that demonstrates clearly the continuing need for significant reforms.

The Article begins by framing the problem of fraud sentencing within modern criminal law, and examines the statistical reality of economic crime sentencing since the 1980s, which has been increasingly characterized by downward departures from harsh recommend minimum sentences.  It then details an original empirical study we conducted on 240 sitting federal and state judges, just as the new sentencing guideline amendments were passing untouched through Congress.  This study presented judges with a realistic pre-sentence report for a multimillion-dollar economic crime, and asked judges to sentence the defendant.  We found that a remarkable 75% of federal district court judges sentenced the defendant to the precise minimum sentence of a possible seven year range.  The study further compared the judges’ sentences across judicial cohorts and evaluated the role of judges’ individual sentencing philosophies, age, religion, and the political party of the appointing president.  Despite a range of interesting differences in sentencing philosophy and self-reported attitudes found based on these factors, federal judges’ overwhelming agreement regarding minimum sentencing largely transcended their other differences.

The Article considers the results of the study in the context of the revised guidelines as well as scholarly reform suggestions, and offers five specific proposals to reform the guidelines, beginning with significant cuts to the so-called “loss table” as well as the specific offense characteristics that frequently lead to near-nonsensical sentencing guidelines.

February 24, 2016 in Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

What does (closet libertarian?) GOP front-runner Donald Trump now really think about the drug war and criminal justice reform and Prez clemency?

Based on his personal and professional history, as well as a number of his prior positions on a range of social and economic issues, I have long assumed the essential political views and commitments of Donald Trump to be what might be called "pragmatic libertarianism."  I say that in part because most successful private businessmen in the United States, in addition to being generally pragmatic, tend to have at least some hint of a libertarian streak on at least some issues (e.g., think of the Koch brothers or Peter Lewis).  More to the point, as I have flagged in prior posts here and  on my marijuana reform blog, Donald Trump once embraced the libertarian view that full legalization would be the only way to "win" the drug war.

But, of course, Donald Trump the Presidential candidate has sounded far more authoritarian than libertarian on the campaign trail, especially with respect to domestic issues.  He conveniently says that he has now changed his mind about abortion and thus now is pro-life rather than pro-choice.  He also has expressed in vaious ways disaffinity for marijuana legalization (though his position seems to get more and more nuanced as time goes on, as highlighted in posts here and here from my marijuana reform blog).  Then again, to the extent a single idea summarizes Trump's modern politics, it would seem to be "anti-establishment"; I think it is accurate to describe The Establishment, on both the left and the right, to be quite statist and generally anti-libertarian.  

I say all this not to claim that Donald Trump is the most libertarian candidate still with a serious chance to become President (although this might be true).  Rather, I say it in order to try to figure out whether, when and how the candidate now seemingly most likely to represent the GOP on the national stage for the bulk of 2016 will articulate his latest thinking about federal criminal justice issues ranging from statutory sentencing reform of mandatory minimum sentences for drug offenders to federal responses to state marijuana legalization to the robust use of federal clemency powers.  

Obviously, how the last five or six US presidents have approached these federal criminal justice issues, both politically and practically, has had a huge impact on the nature and reach of our nation's federal and state criminal justice systems.   Before I can even figure out whether I should be terrified by the prospect of a President Trump, I really am eager to hear more about his current thoughts on these important criminal justice fronts.  Critically, not only would Trump's discussion now of these issues help me better understand long-term what would a President Trump might actually do, I think they could have a big short-term impact on the work of the current Congress and the current President (and even the current Supreme Court) in these areas.

With apologies for my (silly?) Prez Trump musings in the wake of his latest "yuge" win in Nevada, I am eager to hear lots of thought from lots on readers on this political and legal front.

February 24, 2016 in Clemency and Pardons, Federal Sentencing Guidelines, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9)

Monday, February 22, 2016

"The Use of Federal Rule of Criminal Procedure 35(b)" to reward cooperators after initial sentencing

The quoted portion of the title of this post is the title of this notable new US Sentencing Commission research report and the second part of the title of this post is intended to highlight exactly why the first part of the title of this post is a sentencing story.  The 42-page report is data-rich, and here is the text of this USSC webpage providing background and noting some of the report's key findings:

This report examines sentence reductions for offenders who cooperate with the government in its efforts to investigate or prosecute others.  Offenders can receive credit for their “substantial assistance” in at least two ways; at the time of sentencing (USSG §5K1.1 departure motions) and after sentencing (Federal Rule of Criminal Procedure 35(b) motions).  In both instances, the government must make a motion for a lower sentence.

This publication discusses the history and current use of Fed. R. Crim. P. 35(b).  It also presents data on the number of Rule 35(b) reductions and the jurisdictions where they are granted; the effects of Rule 35(b) reductions on sentences; and the offense and demographic characteristics of offenders who receive such reductions.  The report also compares the circumstances of offenders receiving Rule 35(b) reductions with those who received USSG §5K1.1 departures. 

Key Findings

A review of the 10,811 cases in which Rule 35(b) reductions were granted over the past six years suggests the following conclusions:

  • Rule 35(b) sentencing reductions are used relatively rarely, but a few districts make frequent use of Rule 35(b) sentencing reductions.  There is no clear data-based explanation for these differences, as these districts vary substantially from one another in overall case load, offense mix, and demographic composition.

  • Most offenders receiving a Rule 35(b) reduction were originally sentenced within the guideline range.  This suggests that courts are rarely departing or varying for reasons other than substantial assistance with this group of offenders.

  • Most offenders receiving a Rule 35(b) reduction were convicted of a drug trafficking offense that carries a mandatory minimum penalty.

  • Rule 35(b) sentencing reductions generally provide less benefit than do § 5K1.1 substantial assistance departures.  This general statement holds true whether the Rule 35(b) sentencing reduction is compared to the §5K1.1 substantial assistance departure in terms of the ultimate sentence length or by the extent of the reduction from the original sentence.  The relatively high number of Rule 35(b) offenders who are convicted of drug and firearms offenses, though, as well as the relatively high number of those subject to mandatory minimum penalties, suggests that these offenders may receive a lower reduction because they are more serious offenders.

  • Although Rule 35(b) sentencing reductions are usually less beneficial to offenders than are §5K1.1 substantial assistance departures, offenders who receive both a §5K1.1 departure and a Rule 35(b) sentencing reduction receive the largest overall reduction in their sentences, regardless of how that reduction is measured.

  • Offenders sentenced in jurisdictions that primarily use Rule 35(b) sentencing reductions overall receive less of a benefit for their substantial assistance than do offenders in jurisdictions that rely primarily on §5K1.1 departures or a combination of Rule 35(b) reductions and §5K1.1 departures.

February 22, 2016 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, February 16, 2016

"Fifty Shades of Gray: Sentencing Trends in Major White-Collar Cases"

The title of this post is the title of this new Note appearing in the February 2016 issue of the Yale Law Journal authored by Jillian Hewitt and now available via SSRN.  Here is the abstract:

Between 1987 and 2005, federal judges sentenced defendants pursuant to binding Sentencing Guidelines that severely curtailed their discretion.  In United States v. Booker, the Supreme Court held the mandatory Guidelines sentencing scheme unconstitutional and rendered the Guidelines advisory.  This Note offers a picture of white-collar sentencing in “shades of gray.” It conducts an empirical analysis of sentencing decisions after Booker to assess the consequences of the return to judicial discretion.

In particular, the Note examines major white-collar cases in the Southern District of New York, where many such cases of national and international significance are prosecuted.  The Guidelines instruct judges in white-collar cases to calculate the amount of economic loss attributable to the defendant and apply a sentencing enhancement — often a sizable one — on the basis of that loss.  The findings reveal that a significant majority of defendants in these cases receive sentences of imprisonment shorter than those recommended by the Guidelines.  Moreover, when judges impose sentences below the Guidelines range, the resulting sentences are often dramatically shorter than those produced under the Guidelines.

Based on these findings, this Note argues that the U.S. Sentencing Commission should revise its approach to white-collar cases in three ways.  The Commission should amend the Guidelines to reduce the severity of the economic loss table; calculate economic “loss” differently; and add additional, though less severe, enhancements to punish pecuniary gain and intended loss.  Absent such changes, judges will — and should — continue imposing sentences far below the Guidelines range.  These proposed changes better capture the seriousness of the offense and the culpability of the offender, even if they do not resolve the fundamental tension between individualized sentencing and the rigid quantification that characterizes the Guidelines system.

February 16, 2016 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Friday, February 12, 2016

Another federal child porn downloader gets another non-prison sentence in the EDNY

A helpful readers alerted me to this notable Newsday report concerning a notable federal sentencing this morning in the Eastern District of New York headlined "Ex-police investigator gets home detention for child porn." Here are the details:

A former investigator with the New York State Police stationed on Long Island was sentenced to 9 months of home detention Friday in a child porn case.  Sean Michael Pagano of Mount Sinai could have been sentenced to between 46 months to 57 months in prison under federal sentencing guidelines after he pleaded guilty to one count of accessing child pornography.

Pagano, at the time stationed at Troop L in East Farmingdale, was arrested in April by FBI agents after he was accused of accessing a website in Alaska and downloading child pornography.  The arrests came after agents raided a house in Anchorage that served as a base for the distribution of child pornography and took over the site, collecting information on who was involved in the site.

“I take full responsibility for my actions,” Pagano said Friday, tearing up as he spoke in Central Islip federal court.  “I am sorry. . . . Helping people was my main goal in life.”

Before sentencing Pagano, U.S. District Judge Arthur Spatt said he was balancing the “seriousness” of the crime with his otherwise “outstanding” career. There is “certainly no danger to society or anyone and he is probably truly remorseful,” Spatt said.

Eastern District Assistant U.S. Attorney Allen Bode had asked for a significant sentence, noting that Pagano, as a state trooper, had gone along on raids involving child pornography with FBI agents on Long Island who normally deal with such cases.  Bode said as a result of Pagano’s relationship with agents on Long Island FBI agents from the city had to work on the case.

Before sentencing, Pagano’s attorney Joseph Conway of Mineola described his client as having a distinguished career in the Marine Corps and with the State Police. Pagano has since resigned from the State Police. His position was the equivalent of being a detective....

At the time of his arrest, Pagano claimed he was investigating child pornography. But State Police officials said that that was not correct and he had been assigned to investigating narcotics.

Though I am disinclined to assert that there is a full judicial revolt with respect to the federal sentencing of child pornography offenders in the Eastern District of New York, I do think it quite notable and significant that this is the third significant report of a federal judge in EDNY refusing to accede to the arguments by federal prosecutors that a downloader of child pornography has to be imprisoned (prior coverage here and here and linked below).

Notably, in the course of this discussion at Crime & Consequences in the wake of Judge Jack Weinstein's recent similar sentencing ruling in US v. RV (discussed here), Bill Otis stated his view that there are "very, very few CP cases that actually reach indictment in which a zero [prison] sentence would be acceptable."  Though I am not sure I completely agree with that sentiment, I do find the imposition of only home confinement in this case especially notable (and perhaps distinctly questionable) because the defendant here was, according to this press article, a "state trooper [who] had gone along on raids involving child pornography with FBI agents on Long Island,"  and when arrested "Pagano claimed he was investigating child pornography."  In other words, it appears that the CP downloader here had a unique position of trust AND aggravated his crime by obstructing justice when he was first caught.  Those aggravating factors lead me to wonder think federal prosecutors might be uniquely eager to appeal this case to the Second Circuit, though I would need to know a lot more about the extent and nature of the child porn downloaded by Pagano before making any predictions about whether such an appeal might prevail.

Recent related posts about child porn sentencing in EDNY:

February 12, 2016 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Thursday, February 11, 2016

Based on Johnson, split Fifth Circuit panel finds another simlar provision of federal law is unconstitutionally vague

A helpful reader alerted me to a notable new split ruling handed down by the Fifth Circuit yesterday in US v. Gonzalez-Longoria, No. 15-40041 (5th Cir. Feb. 10, 2016) (available here). Here is how the majority opinion gets started:

In this appeal, we address for the first time whether 18 U.S.C. § 16’s statutory definition of “crime of violence” is unconstitutionally vague.  We consider this question in the light of the Supreme Court’s recent holding that a similar provision of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  Johnson v. United States, 135 S.Ct. 2551 (2015).  In Johnson, the Court held that the ACCA violated the constitutional prohibition against vague criminal statutes by defining “violent felony” as any crime that “is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).  Section 16 contains a similar definition: a “crime of violence” is “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  The Seventh and Ninth Circuits have both held that this language is sufficiently similar to the ACCA’s language to suffer the same unconstitutional fate.  United States v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). We agree, and accordingly hold § 16 unconstitutional.

And here is how the dissent gets started and sums up its differing analysis of Johnson's impact here:

It is the uncertainty that charms one. A mist makes things wonderful.” Oscar Wilde, The Picture of Dorian Gray. Perhaps true for Oscar Wilde, but not in the criminal law, where too much uncertainty denies defendants fair notice and permits arbitrary enforcement of the laws. See Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)....

In summary, we should not strike Congressional law, 18 U.S.C. § 16(b), because, first, the concerns raised by the Court in Johnson with respect to ACCA’s residual clause are less implicated by Section 16(b); second, because Leocal is precedent only the Supreme Court should adjust; and, third, because Section 16(b) does not involve the interplay of interpretative method and statutory text causing the double indeterminacy that was the due process muddle rejected in Johnson.  Gonzalez-Longoria was on sufficient notice that his prior crime of Assault Causing Bodily Injury with Prior Conviction of Family Violence is one society condemns as violent because it involves a substantial risk that, in the course of its commission, force will be used against another.  I dissent.

February 11, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (2)

Wednesday, February 10, 2016

Senator Tom Cotton forcefully (and somewhat thoughtfully) makes his case against the current version of SRCA 2015

23992166449_9ff10a5a94As reported previously in this post and now again via this new piece from The Hill, a number of Senators are in the midst of a robust conversation about the merits of and concerns about the Sentencing Reform and Corrections Act (which I have called SRCA 2015 since its introduction last fall).  Of particular note and importance (and as noted in this prior post), Arkansas Senator Tom Cotton seems to be taking a leading role raising concerns about the current version of the SRCA, and I am now pleased and impressed that Senator Cotton has provide a thorough articulation of his concerns through this new Medium commentary titled "The Current Sentencing Reform and Corrections Act is Dangerous for America," and also through this extended speech delivered yesterday on the Senate Floor.

The Medium commentary, which is relatively short, does not do much more than emphasizethe anti-federal-sentencing-reform points already forcefully and repeatedly expressed by the National Association of Assistant U.S. Attorneys and Bill Otis and others who have been consistent opponents of any changes to the current federal sentencing status quo.  But the Senate floor speech is much, much longer and, in my view, in spots much, much more thoughtful in discussing the SRCA and his own perspectives about federal sentencing reform.  I highly recommend all persons following federal sentencing reform to read Senator Cotton's lengthy floor speech in full, and here are some of the (many) passages that has led me to describe it as forceful (and somewhat thoughtful):

Today, I want to discuss the Sentencing Reform & Corrections Act that has been voted out of the Judiciary Committee. There is much debate about the wisdom of this bill.  That is, like most bills we discuss in this chamber, a judgment call. But there cannot be debate over the facts of this bill. We have to be very clear on what this bill, by its own text, is designed to do....

By its text, the bill will not just apply to so-called "non-violent offenders," but to thousands of violent felons and armed career criminals who have used firearms in the course of their drug felonies or crimes of violence.

By its text, the bill will reduce sentences not for those convicted of simple possession, but for major drug traffickers, ones who deal in hundreds of thousands of dollars' worth of heroin or thousands of pounds of marijuana.  And let's be clear: drug trafficking is not "non-violent," as the bill's proponents often claim.  It's an industry that's built on an entire edifice of violence, stretching from the narcoterrorists of South America to the drug-deal enforcers on our city streets. If you think dealing drugs on a street corner while armed with a gun is a "non-violent" offense, you probably live in a rich suburb or a gated community....

It's been reported that the bill's sponsors are preparing to release a revised bill, one that would address some of these many shortcomings.  Regarding this news, I first want to thank the sponsors for acknowledging that the bill as passed by committee does in fact apply to serious drug traffickers and other violent felons.  I look forward to evaluating the new legislative text, and I hope it addresses these problems....

The [US Sentencing] Commission first reduced sentencing guidelines in 2007.  It did so again in 2010. And again in 2014. That is three major systemic sentencing reductions in the span of seven years. The result?  46,000 federal convicts will walk from jail early.  Wendell Callahan was one among that 46,000.  There will be many more like him. And while we pray — against all odds — that none of them go on to commit a triple-murder like Wendell Callahan did, or any other heinous crime, I'm afraid our prayers will go unanswered, at least in part.

The Sentencing Commission is an independent judicial agency that provides uniform sentencing guidance to judges. Congress didn't have a hand in those sentencing reductions.  But with the Sentencing Reform & Corrections Act, the Senate would impose a fourth major sentencing reduction within eight years — one that is deeper and broader than the reductions imposed by the Sentencing Commission.

This is badly misguided.  The Senate would be launching a massive social experiment in criminal leniency without knowing the full consequences of the first three reductions imposed by the Sentencing Commissions.  This experiment threatens to undo the historic drops in crime we have seen over the past 25 years....

The Senate, and the American people, need to consider any change to our sentencing laws with full information.  We need to know if this sentencing-leniency bill will return us closer to the days of the `70s and `80s when our cities were besieged by the drug trade, and whole communities were being rotted out as a result.  We need to debate sentencing changes with all the data available to us.  We need to do this with eyes wide open.

That is why today — together with Senators Hatch, Sessions, and Perdue — I am introducing the Criminal Consequences of Early Release Act.  This is a simple, but very needed bill.  It will require the federal government to report on the recidivism rates of the 46,000 federal inmates to be released early under the Sentencing Commission's reductions.  And it will require the same reporting for any prisoners released early under any future reductions passed by Congress.

The report required by this bill will make clear how many crimes are being committed by released felons.  It will make clear what types of crimes — from drug trafficking to assault to robbery to murder — are being committed by these felons. And it will make clear in which states these crimes are occurring.

Currently, this type of data is extremely hard to compile.  It is not reported by the Bureau of Justice Statistics, and any information we do have comes through anecdotes and sporadic media reports.  Full information on the criminal consequences of early release must be published in detail.  Before voting on any bill to reduce sentences, the members of this chamber need to understand fully the criminal consequences of prior sentence reductions....

I want to be clear.  To those who support the Sentencing Reform & Corrections Act, we are not in full disagreement. Like you, I oppose jail for first-time drug users with no prior record.  It's vanishingly rare for such offenders to be prosecuted and jailed in the federal system.  But it remains true that the better option for them — particularly if they are addicts — would be drug treatment.  Like you, I believe that our prisons should not be an anarchic jungle that is a danger to both prisoners and corrections officers.  Like you, I believe that those prisoners who will someday complete their sentences and re-enter society should be given the chance to rehabilitate and redeem themselves while in prison so that they do not recommit crimes once they are released.  Like you, I do believe that there exists the possibility of an unjust sentence, one that is so out of proportion that it shocks the conscience.

So I suggest, let's work on that bill.  Let's work on a bill that identifies and addresses all first-time drug possession inmates in the federal system, but keeps drug traffickers and other violent offenders in prison to finish their sentences.  Let's improve prison conditions and give prisoners a shot at redemption and a better life.  And, if you wish, let's work on a bill to speed the consideration of commutation applications.

If we want to undo unjust sentences, we can help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences.  But what we should not do is use the blunt instrument of releasing thousands of violent felons and major drug traffickers.  The president has the constitutional power to remedy unjust sentences.  But you know what power he doesn't have?  The power to bring back to life the victims murdered by prisoners who are released early or sentenced inadequately.

There are a number of statements in the parts of this speech quoted above with which I could take serious issue. In particular, Congress always has authority to block any and every formal decision by the US Sentencing Commission, and the crack-guideline reductions of 2010 were essentially mandated by Congress in the Fair Sentencing Act of 2010. Consequenlty, it is not accurate for Senator Cotton to assert that "Congress didn't have a hand in those sentencing reductions" to drug sentences promulgated by the USSC in recent years. More generally, to assert in blanket terms that "drug trafficking is not 'non-violent'," is no better than asserting in blanket terms that "drug trafficking is non-violent." Some federal drug-traffickers in some settings are extremely violent in doing business. But I have not heard of much violence taking place in all the stores now selling a whole lot of marijuana in Colorado and other states, and I surmise that the ability to purchase this drug in a safe environment is one reason marijuana sales seem to keep going up and up in a number of states.

But, critically, even though Senator Cotton sometimes favors rhetoric over reality in this speech, the basic themes and many particulars he stresses are an important and valuable contribution to the broader debate over federal sentencing reforms. In particular, Senator Cotton is 100% right that our national data on the recidivism rates and realities of federal offenders — not only with respect to those who get sentence reductions, but also for the entire released offender population — leave a lot to be desired and raise more questions than answers. (Indeed, as some readers likely know well, the very term "recidivism" is subject to various definitions in various settings.) I could not agree more with Senator Cotton's statement that the "Senate, and the American people, need to consider any change to our sentencing laws with full information." Indeed, I have long thought that many of our worst federal sentencing laws enacted in prior decades — e.g., the 100-1 crack/powder disparity, some of our most severe gun possession mandatory minimums — were passed largely based on misinformation about their reach and likely impact.

In addition, I think Senator Cotton merits praise for urging his colleagues to "improve prison conditions and give prisoners a shot at redemption and a better life," and especially for suggesting "work on a bill to speed the consideration of commutation applications" in order to "help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences." As long-time readers know, many sentencing reform advocates (myself included) have been advocating for Presidents of both parties to make much broader and more constitent use of the "constitutional power of pardon and commutation." I think it is both quite heartening and significant that now the Senate's most vocal opponent of proposed sentencing reforms is sincerely calling for President Obama (and future presidents) to use the clemency power to remedy any and all federal sentences that appear to the President to be "manifestly unjust."

February 10, 2016 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Sunday, February 07, 2016

FSR accounting of state of federal sentencing reform efforts at end of 2015

1.cover-sourceAs I try to provide here a "real-time" account of certain ups-and-downs with various federal statutory sentencing reform bills, I too rarely find the time to provide a more reflective accounting of what is afoot in this important criminal justice reform space.  Helpfully, my Federal Sentencing Reporter co-editor, Frank Bowman, has spent time recently assembling in FSR's pages some primary documents and cutting-edge commentary on this front.  Here is part of an email Franl authored providing a description of what he has put together for FSR:

For anyone interested in the details of the various pending pieces of legislation and analysis of the practical impact of the bills that have made it through the House and Senate Judiciary Committees, I commend you to the latest issue of the Federal Sentencing Reporter (Vol 28, No. 2), which contains the text or summaries of the various bills, as well as commentaries. 

In particular, for an overview and impact analysis, see my article, Good Enough to Be Getting on With? The State of Federal Sentencing Reform Legislation, December 2015.  The FSR issue also contains excellent work by Nora Demleitner of Washington & Lee and Paul Hofer, formerly of the Sentencing Commission and now with the Federal Defenders sentencing project, which can be found at this link. Here is the abstract of Frank's article linked above:

This Article addresses the current status of the push for federal sentencing and corrections reform, and describes and analyzes all of the major pieces of sentencing and corrections reform legislation pending in the United States Congress at the close of 2015.  In particular, it considers the Justice Safety Valve Act of 2015, the Smarter Sentencing Act of 2015, the SAFE Justice Act of 2015, and the most likely candidate for passage -- the Senate's Sentencing Reform and Corrections Act of 2015 (SRACA) and its counterpart in the House.  The Article discusses the merits and deficiencies of each bill, and estimates the likely effect of each on the population of current and future federal defendants and inmates.

The Article notes that the legislative proposals have become less expansive as the session has progressed, with each succeeding bill more cautious than the last.  The final section of the Article considers whether the result of Congress's efforts will be worthy of support by those who favor significant federal sentencing and corrections reform.  It concludes that, on balance, the front-end sentencing provisions of the legislation most likely to pass (SRACA) are "good enough to be getting on with," but that the back-end corrections measures with the most current legislative backing ought to be reconsidered and improved.

February 7, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Tuesday, February 02, 2016

Second Circuit panel laments the "Statement of Reasons" form used by sentencing judges

A helpful reader made sure I did not miss the interesting sentencing opinion handed down by the Second Circuit yesterday in US v. Pruitt, No. 14‐1921 (2d Cir. Feb. 1, 2016) (available here).  Authored by District Judge John Gleeson sitting by designation, here is how the Pruitt opinion gets started:

Kaylon Pruitt appeals from the May 29, 2014 judgment of conviction entered against him in the United States District Court for the Northern District of New York (Suddaby, J.).  Pruitt was sentenced principally to a 46‐month term of imprisonment on his plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).  He contends that the district court committed procedural error during his sentencing by failing to explain the reasons for the sentence, as required by 18 U.S.C. § 3553(c).

We affirm but write to suggest to the United States Sentencing Commission and the Judicial Conference of the United States that the Statement of Reasons form included within the statutorily‐required form for the entry of criminal judgments ‐‐ Form AO 245B ‐‐ be amended to bring it into conformity with § 3553(c) and Supreme Court precedent.  Specifically, a check‐a‐box section of the form, which was checked by the district court in this case, invites sentencing judges to impose a sentence within the applicable Guidelines range simply because the judge finds no reason to depart.   Because that both undermines the statutory obligation to state the reasons for every sentence and unlawfully presumes the reasonableness of the advisory Guidelines range, the form should be amended.

In a final notable footnote, the Pruitt opinion takes a notable shot at the US Sentencing Commission:

The form as a whole seems designed to encourage judges to sentence within the range.  A path of least resistance is clearly marked, and it is consistent with the Commission’s overall approach to sentencing in the post‐Booker era.  In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the mandatory guidelines system was incompatible with the Sixth Amendment right to trial by jury, and it accordingly severed the provision of the Act that made the Guidelines mandatory.  The Sentencing Commission has since repeatedly asked Congress to enact legislation requiring sentencing courts to give greater weight to the Guidelines range than Booker and its progeny permit.  The specific proposals include laws that would require sentencing judges give “substantial weight” to the advisory Guidelines range and require appellate courts to accord a presumption of reasonableness to within‐range sentences.  Thus, the objectionable part of Statement of Reasons form may reflect the law as the Commission wants it to be.

February 2, 2016 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 (6)

Saturday, January 30, 2016

Judge Jack Weinstein disregards severe federal child porn guidelines again

A helpful reader alerted me to this notable local story describing the latest notable child porn downloading sentence imposed by US District Judge Jack Weinstein.  The piece is headlined "Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences," and here are excerpts:

A Brooklyn man who faced 10 years for downloading child pornography was sentenced to five days by a federal judge who sharply criticized punishment guidelines for failing to distinguish between dangerous offenders and those who pose little threat.

U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers.  "Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. "It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."

His opinion, first reported in the New York Law Journal, is the latest salvo in a war over whether penalties for possessing child pornography have gotten too harsh.  The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."

The defendant, who agreed to speak to NBC News on the condition his name was not used, said he was surprised and relieved that Weinstein was so lenient after his guilty plea.  "I prayed to God and took my chances," the 53-year-old father of five said.  "I feel very remorseful. It's something that will never happen again."

But child-abuse victims' advocates said they were appalled by Weinstein's reasoning. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images. It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives," said Paul Cassel, a former federal judge who is now a law professor at the University of Utah.

In 2013, investigators remotely connected to the man's computer and downloaded four photos and videos showing men engaged in sexual acts with girls, including a 3-year-old and a 5-year-old, and they seized more porn on thumb drives with a search warrant, court papers said. The man also had "sexual" chats with underage girls online, but there was no evidence he sought physical contact with minors. When he pleaded guilty, the defendant said he understood the charge carried up to 10 years behind bars. Based on the specifics of his case, the federal guidelines called for a sentence of 6.5 to 8 years in prison.

But Weinstein thought that was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough. The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.

The man — who lost his $75,000-a-year job as a restaurant manager after his arrest — told NBC News that he stumbled on child pornography while consuming legal, adult pornography online. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading."

Weinstein is among a group of federal judges who have argued that sentencing ranges for possessing child pornography — which were doubled by Congress in 2003 — are too severe. The federal bench handed down sentences below the guidelines 45 percent of the time, the Associated Press reported in 2012. Those who favor tougher sentences point out that while many consumers of child pornography may not never lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children....

Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure. "He's basically saying it's not worth too much punishment," she said, adding that she did not want to comment on whether the man Weinstein sentenced deserved more time than five days.

That man said that he had done something wrong and was ashamed of it but that locking him up would not have served any purpose and would have "put my family living out on the street."

"It should be illegal," he said of child pornography. "No child should be put through that process." But he added, "I would never physically do anything. I never had even a thought of it."

I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.

Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines).  But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.

UPDATE:  A helpful reader sent me a copy of Judge Weinstein's sentencing opinion in this case, so I can now provide it here for downloading:  Download US - v- RV weinstein sentencing opinion

January 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23)

Tuesday, January 26, 2016

"Congressionally Mandated Task Force Calls for Bold Transformation of Federal Corrections System"

CCTFThe title of this post is the headline of this press release which summarized the contents and import of a new report released this morning by the Charles Colson Task Force on Federal Corrections.  Here are excerpts from the press release (which includes a link to the report):

Today, the Charles Colson Task Force on Federal Corrections issued a set of bold recommendations to reform the federal justice system, enhance public safety, and save the government billions of dollars. In a new report, Transforming Prisons, Restoring Lives, the Congressionally mandated blue-ribbon panel released the findings of its year-long investigation into the nation’s overcrowded and costly federal prisons....

“We have laid out a detailed roadmap of ambitious, consensus-based recommendations that place public safety first while reserving prison for those who truly need it,” said task force chair, former Republican congressman from Oklahoma J.C. Watts, Jr. “If taken together, these reforms are projected to reduce the federal prison population by 60,000 people in the coming years and save more than $5 billion.”

Congress established the bipartisan panel in 2014 in response to mounting concerns about the scale and cost of the federal Bureau of Prisons (BOP), which currently houses 197,000 people with a budget of almost $7.5 billion this year. Alan Mollohan, the task force’s vice-chair, said that the seven-fold increase in the BOP’s population since the 1980s is unsustainable. 

"The BOP has been operating at crisis levels for decades," said Mollohan, a former Democratic congressman from West Virginia. "As a result, its policies and practices have not kept up with best practice in the field, presenting a missed opportunity to rehabilitate those who are confined in federal prisons and thus promote public safety.”...

In the report, the task force recommends that the federal justice system move away from its current “one size fits all” approach to meting out punishment and delivering treatment and programs. Instead, they advise that sentencing decisions and correctional responses be based on the individual case–an approach grounded in research evidence as the most effective means of reducing recidivism.

Observing that prison is expensive and imposes tremendous harm to individuals, families, and communities, the Task Force recommends that prison sanctions be used sparingly and long terms of incarceration be reserved for only the most serious federal crimes. They advise incentivizing participation in programs that are proven to lower recidivism and increase the odds of success for individuals reentering society. And, in following the example of successful reforms in states like Texas, Utah, Georgia, South Carolina, and Pennsylvania, they advocate for a more diversified, evidence-based approach to criminal justice that delivers public safety at less cost.

In more specific terms, the Task Force recommends that:

  • Mandatory minimum penalties for drug offenses should be reserved for “drug kingpins”–those found to have served a leadership role in a large cartel;
  • Program and treatment participation in prison should be incentivized through earned time off one’s sentence; and
  • The BOP should better assess the risks, needs, and assets of its population and align programming and treatment accordingly to reduce recidivism and enhance public safety.

Along with the release of this important report, J.C. Watts, the chair of the Charles Colson Task Force on Federal Corrections, authored this Washington Post commentary headlined "Prisons are full of low-level offenders. It’s time to rethink federal sentencing laws.: Americans believe in redemption, but for too long, our reflexive reliance on incarceration has left us little room to show it."

January 26, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

What lessons are to be learned from California's recent experiences with sentencing reform?

The question in the title of this post is prompted by this notable new post authored by Michael Rushford at Crime & Consequences (and supplemented by Bill Otis) titled "Congressional Supporters of Sentencing Reform Need to Look at California."  As regular readers know, I have long pointed to California as a state to watch closely in the sentencing reform arena, and thus I am pleased to see this post urging federal legislators to look at California's modern reform experiences.  But while the C&C folks seem to think the California experience should lead Congress to back away from proposed statutory sentencing reforms, I see many of the problems emphasized by the C&C folks to be a result of the abject failure of California's legislature to respond wisely with statutory reforms when there was an obvious need to improve its sentencing structures.

I have previously highlighted some of these California realities in this extended 2014 post titled "Can and should California's enduring CJ problems be blamed on those who've long opposed a state sentencing commission?".  In that post, I stressed that while the tough-on-crime crowd over at C&C is eager to blame recent California developments on recent sentncing reform required by a federal court order in Plata and resulting from voter initiatives, it was this same tough-on-crime crowd that vehemently opposed and effectively blocked efforts to create a California sentencing commission to deal proactively and systematically with the state's enduring sentencing problems before they became so acute that federal court intervention was required.

The critical part of the California reform story left out from the C&C discussion is that the California legislature from 2005 to 2010 completely failed to respond in any sound way to sensible calls by sentencing reformers to deal with the state's unconstitutional prison overcrowding and the statutory sentencing problems aggravating these problems.  The court orders requiring prisoner release in Plata and the voter-approved sentencing reforms passed in subsequent elections were the direct result of federal courts and Californian voters no longer being able to trust the state's elected representatives to move responsibly forward with needed state statutory sentencing reform.   

In some ways, this potentially problematic, reactive-reform dynamic is already playing out in the federal sentencing system.  For example, the US Supreme Court has been saying in various ways for many years that Congress needed to fix various problems with the Armed Career Criminal Act.  Congress long failed to respond, and we ultimately get the Justices in Johnson striking down the ACCA statute as partially unconstitutional (which will now require the release of many offenders previously sentenced as armed career criminals).  Similarly, the US Sentencing Commission and the US Department of Justice have been saying in various ways for many reasons that Congress needs to address record-high federal prison populations.  I suspect the USSC concluded, after Congress failed to heed its repeated calls for broad statutory reforms, that it had to do something big itself (with DOJ's support) and thus voted unanimously to reduce guideline sentences for all drug offenses across the board and to make these reforms retroactive.

Now, after years of failing to heed calls by sentencing reformers (and the bipartisan US Sentencing Commission) to get ahead of statutory sentencing problems, much of Congress (now led by the GOP) has seemingly come to realize that failing to deal proactively and systematically with sentencing and corrections reform could produce even more long-term problems and challenges.  But, yet again, the tough-on-crime crowd at C&C and elsewhere is vehemently opposed to a legislature moving forward proactively and systematically with enduring statutory sentencing problems before we get to a crisis point and other actors feel compelled to get involved due to legislative inaction.

January 26, 2016 in Federal Sentencing Guidelines, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Monday, January 25, 2016

GOP empire striking back against federal sentencing reform efforts in Congress

TomCottonThis new Politico article, headlined "Cotton leads effort to sink sentencing overhaul: A cadre of conservative Republicans is lining up against the bipartisan measure, imperiling its future," reinforces my long-standing concern that the prospects of significant statutory sentencing reform emerging from Congress gets dimmer every week that passes without movement forward on the bills that have made it through the judiciary committees.  Here is the first part of the article:

Sen. Tom Cotton, the hawkish upstart who's already made waves railing against the Iran nuclear deal and government surveillance programs, is now leading a new rebellion against a bipartisan effort to overhaul the criminal justice system — hoping to torpedo one of the only pieces of major legislation that could pass in President Barack Obama’s final year.

GOP tensions over a bill that would effectively loosen some mandatory minimum sentences spilled over during a party lunch last week, when Cotton (R-Ark.), the outspoken Senate freshman, lobbied his colleagues heavily against the legislation, according to people familiar with the closed-door conversation. The measure passed the Senate Judiciary Committee last fall with bipartisan support.

“It would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons,” Cotton said later in an interview with POLITICO. “I think it’s no surprise that Republicans are divided on this question … [but] I don’t think any Republicans want legislation that is going to let out violent felons, which this bill would do.”

Cotton isn’t alone. Other Senate Republicans, including Sens. Jim Risch of Idaho and David Perdue of Georgia, also registered their strong opposition during the lunch, even as Sen. Mike Lee (R-Utah) vigorously defended the bill, which he helped negotiate. Risch stressed this message, according to one Republican source: Shouldn’t the GOP be a party of law and order?

Risch declined to elaborate on his concerns over the bill, saying he was displeased that his private remarks made during a party lunch were made public. But the deepening Republican split over reforming key elements of the criminal justice system — an effort years in the making that has been powered by an influential right-left coalition — may imperil whether Senate Majority Leader Mitch McConnell ultimately will take up the measure later in this election year.

Conservatives opposing the legislation are coalescing around Cotton’s view — despite strong pushback from bill supporters — that the measure could lead to the early release of people convicted and imprisoned for violent crimes. Sen. Ted Cruz (R-Texas), once a supporter of easing mandatory minimums for nonviolent drug offenders, has also made this argument. And there’s stiff resistance in pockets of the Republican Party to do anything that may erode its tough-on-crime reputation.

Backers of the bill say their changes to sentencing laws merely allow qualifying inmates to have their cases revisited by the same judge and prosecutor who landed them in prison. The judge would then have the discretion to hand down a reduced sentence. “It’s not true,” said Senate Majority Whip John Cornyn (R-Texas) of opponents’ insistence that violent criminals could be freed under the sentencing reforms. “I’d say, please read the bill and listen to people like [former Attorney General] Michael Mukasey who makes the point, which is a critical point, that there’s no get-out-of-jail-free card.”

But that perception, hardening among conservatives, is a serious obstacle for supporters of the bill like Cornyn, who as the Senate’s second-ranking Republican is the most influential GOP backer of the criminal-justice measure. And last week, McConnell — who is often hesitant to press ahead on issues that divide his 54-member conference — indicated a breather of sorts on the bill, saying GOP senators would take some time to get educated on the measure.

Those comments discouraged some supporters, since any major pause could spell doom for the bill this year. In a couple of months, the GOP-led Congress will turn its attention to its top legislative priority — budget and appropriations bills — while individual lawmakers shift into full campaign mode. “Members of the Judiciary Committee have been deeply involved on that issue, the rest of us have not,” McConnell told reporters of criminal justice reform. “So we’re going to be working through the process of bringing everybody in the Republican Conference up to speed on this very important issue, and we’re going to do that before any decision is made about floor time.”

The criminal justice overhaul isn’t limited to sentencing reforms. The measure also includes reforms to the prison system championed by Cornyn and Sen. Sheldon Whitehouse (D-R.I.) — changes that Cotton said he supports. And overhaul efforts also are complicated by the issue of so-called mens rea reform, with House Republicans and some GOP senators — including Orrin Hatch of Utah, the most senior Senate Republican — demanding changes to rules governing criminal intent.

But the sentencing changes are triggering the biggest — and most vivid — rift among Republicans. Cotton and other Republicans pointed to a triple murder earlier this month in Columbus, Ohio, where a man is accused of killing an ex-girlfriend and two of her children. The suspect, Wendell Callahan, had his prison sentence on drug charges reduced twice for a total of more than four years, according to The Columbus Dispatch.

January 25, 2016 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Thursday, January 14, 2016

"More Prison, Less Probation for Federal Offenders"

The title of this post is the title of this short Pew Charitable Trusts "Fact Sheet" publication which includes a graph highlighting how many more federal offenders are sentenced to prison and how many fewer get just probation in recent years.  Here is the heart of the text of the document (with my emphasis added):

Over the past three decades, imprisonment has become the dominant sanction in the federal criminal justice system. Nine in 10 federal offenders received prison sentences in 2014, up from less than half in 1980, as the use of probation declined steadily. (See Figure 1.) Federal courts sentenced 2,300 fewer offenders to probation in 2014 than in 1980, even though their caseload nearly tripled during that span.

Changes in the kinds of offenses and offenders prosecuted in federal court may have contributed to the shift toward prison and away from probation. But sentencing policies established during the 1980s and 1990s also played an important role by mandating prison time for many offenses for which probation had routinely been ordered in the past.

Congress increased imprisonment and decreased the use of probation in several ways. During the 1980s and 1990s, for example, lawmakers enacted dozens of laws prohibiting probation and requiring prison terms for many common federal crimes, including drug trafficking and illegal firearms possession.

In 1984, Congress created the U.S. Sentencing Commission, an independent agency within the judicial branch, and charged it with establishing guidelines that federal judges were required to follow during sentencing. The guidelines, which were intended to promote consistency in federal criminal penalties and took effect in November 1987, mandated imprisonment for a variety of offenses — including fraud, embezzlement, and tax evasion — for which probation was a routine sanction in the past.

January 14, 2016 in Data on sentencing, Federal Sentencing Guidelines, Scope of Imprisonment | Permalink | Comments (5)

Wednesday, January 13, 2016

"'Not Ordinarily Relevant': Bringing Family Responsibilities to the Federal Sentencing Table"

The title of this post is the title of this notable Note, which I just happened across, authored by Emily Anderson and recently published in the Boston College Law Review. Here is the abstract:

Incarceration results in negative social, psychological, and economic impacts on an inmate’s family and dependents. These impacts last well beyond the period of incarceration and can cause lifelong challenges.  Federal statutes require courts to consider mitigating factors while calculating a sentence, including a defendant’s characteristics. Family ties and responsibilities are considered an aspect of a defendant’s characteristics.  Yet the Federal Sentencing Guidelines significantly limit the extent to which courts can use family ties and responsibilities to reduce or alter a defendant’s sentence.

This Note first argues that the Guidelines should be amended to indicate that courts can consider family ties and responsibilities when determining a sentence.  This Note then argues that Rule 32 of the Federal Rules of Criminal Procedure should be amended to require that a family impact assessment be incorporated into each presentence investigation report to provide courts with information about a defendant’s family ties and responsibilities.

January 13, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22)

Monday, January 11, 2016

Plain and Prejudice and Zombie Guideline Errors

51clhdJZUyL._SY344_BO1,204,203,200_The title of this post is the cheeky title I suggested for this SCOTUSblog argument preview I wrote up concerning Molina-Martinez v. United States, a case to be argued before the Justices tomorrow morning.  Perhaps unsurprisingly, the sensible SCOTUSblog folks went with a more descriptive title: "Argument preview: Justices take on 'plain error' review and guideline-range mistakes.  But I could not resist using my silly title in this space because it has literary/theatrical flair and Molina-Martinez concerns whether appellate courts conducting Plain error review should presume Prejudice upon discovery of a guideline calculation mistake that was buried until appeal (a Zombie Guideline Error).  Though I recommend heading over to SCOTUSblog for all the gory details on this case, here is how my SCOTUSblog argument preview starts and ends:

Before modern reforms, federal sentences were essentially unreviewable on appeal. This reality resulted largely from the absence of substantive federal directives for district judges in exercising their sentencing discretion. A defendant — or a prosecutor, for that matter — was hard pressed to complain on appeal that a sentence was premised on a legal error when no sentencing laws structured what sentences district judges were to impose within wide statutory sentencing ranges.

Through passage of the Sentencing Reform Act of 1984, Congress brought law to federal sentencing. The SRA created the U.S. Sentencing Commission to promulgate sentencing guidelines directing how federal judges impose sentences. The Guidelines Manual now runs more than 500 pages and requires district judges to parse intricate provisions to calculate an “offense level” and a “criminal history score” to determine a defendant’s recommended guidelines sentencing range. Federal sentencing is now so chock full of so much law, it is inevitable that federal judges sometimes make technical mistakes in calculating a defendant’s proper guideline range. On January 12, the Supreme Court in Molina-Martinez v. United States will hear argument concerning how the courts of appeals should approach “plain error” review of guideline calculation errors not noticed until appeal....

The Supreme Court has not always broken into traditional conservative and liberal blocks in recent and older cases addressing the intersection of guideline-calculation issues and the application of the federal rules of criminal procedures.  However, in part because Molina-Martinez is not the most sympathetic of defendants, and because a number of current Justices may have deep reservations about adopting any doctrine that might be seen to water down the traditionally tough standards of plain-error review, it seems likely Molina-Martinez’s counsel will have an uphill battle convincing the Court to adopt the prejudice presumption he is seeking.

January 11, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Friday, January 08, 2016

US Sentencing Commission promulgates "Johnson fix" guideline amendment and proposes many other notable amendments

As noted in this recent post, today the US Sentencing Commission conducted a public meeting at which it was scheduled to "Vote to Promulgate Proposed Crime of Violence Amendment" and to "Vote to Publish Proposed Guideline Amendments and Issues for Comment." I suggested that these two agenda items could be a very big deal for federal sentencing fans; after watcing the meeting online, I now think the slate of new proposed guideline amendments that the USSC just unanimously voted to publish may be an even bigger deal than the "crime of violence" amendment that was also just officially promulgated by the USSC.

I say this because,

(1) on the crime of violence guideline amendment front, the USSC's new promulgated amendment (a) seemingly seeks to codify the best prior jurisprudence concerning what offenses should be enumerated as violent priors in the career offender guideline while eliminating the vague residual clause essentially blown up by the SCOTUS Johnson decision, and (b) seemingly will not be given retroactive effect because doing so could prove almost administratively impossible. Meanwhile....

(2) on the other proposed guideline amendment front, the USSC appears to be proposing potential amendments to a number of the most controversial and consequential amendments that it had not addressed in prior recent amendment efforts.  Specifically, it seems that the USSC, after having adjusted the drug and fraud guidelines in the last two amendment cycles, now is ready and eager to consider at least some significant tweaks to the immigration and child pornography guidelines.

Because it is not easy to fully assess the potential import and impact of all the USSC action today simply by watching the public meeting live, I am hopeful that some follow-up documents will soon be available on the Commission's website so that all federal sentencing fans can fully understand and assess all of today's action.  But, even before we see any official accounting of today's USSC efforts, I am eager to compliment all the members and staff of the Commission for reminding me that at least some inside-the-Beltway folks can conduct (and complete) critically important and consequential government work in an efficient and bipartisan manner (and on a Friday afternoon, no less).  Kudos to the USSC!

UPDATE: I just got an official email from the US Sentencing Commission that included this text and links:

At today’s public meeting, the U.S. Sentencing Commission unanimously voted to adopt an amendment relating to the definition of “crime of violence” in the Career Offender and other federal sentencing guidelines (press release). This amendment was the result of a multi-year study prompted by concerns and problems relating to the definition of “crime of violence.” The amendment, which eliminates the so-called “residual clause,” was informed by the recent Supreme Court case, Johnson v. United States, issued in June 2015. Read the adopted amendment.

In addition, the Commission proposed an amendment on immigration offenses which would recalibrate the guidelines to ensure more proportional sentences that reflect the totality of the circumstances in a particular case. The Commission also proposed amendments that would allow for higher penalties for animal fighting offenses. An update to the Commission’s policy statement pertaining to compassionate release was also proposed. Read all of the proposed amendments and issues for comment.

January 8, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (11)

Thursday, January 07, 2016

US Sentencing Commission slated to vote on "Johnson fix" guideline amendment and promulgate other proposals

As detailed in this official notice, the United States Sentencing Commission has "a public meeting of the Commission ... scheduled for Friday, January 8, 2016, at 1:00 p.m....  This meeting will be streamed live."  Here is the agenda (with my emphasis added):

These last two agenda items could be a very big deal, depending on what the USSC has in the works.

January 7, 2016 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Thursday, December 24, 2015

"Child Pornography Sentencing in the Sixth Circuit"

The title of this post is the title of this notable new papaer by Carissa Byrne Hessick now available via SSRN. Here is the abstract:

This Symposium Essay explores and analyzes the Sixth Circuit’s approach to child pornography sentencing.  It critiques the Sixth Circuit’s decision to apply heightened scrutiny to below-Guideline sentences for child pornography possession.  In addition to presenting a critique of the Sixth Circuit’s cases, the Essay also provides guidance for defense attorneys seeking a below-Guidelines sentence.  It notes that there are particular strategies those attorneys should follow in order to secure not only a more lenient sentence from a district court judge, but also a sentence that is more likely to be upheld by the Sixth Circuit on appeal.

During the course of this discussion, the Essay identifies and criticizes three significant features of the Sixth Circuit’s cases in this area.  First, it notes that the Sixth Circuit is the only circuit to have adopted heightened appellate review of below-Guideline sentences for child pornography possession.  Second, it explains that the Sixth Circuit appears to be developing a common law of sentencing in child pornography cases; such a common law is contrary to the language and the logic of the Supreme Court’s Sixth Amendment sentencing cases.  Finally, it explains that the Sixth circuit has failed to give appropriate deference to district court decisions to sentence below the Guidelines based on facts and circumstances of particular cases.

December 24, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, December 14, 2015

Will Senate leader ever bring latest federal sentencing reform bill up for a full Senate vote?

The question in the title of this post is prompted by this notable inside-the-Beltway report from the New York Times headlined "Mitch McConnell Demurs on Prospects of Criminal Justice Overhaul."  Here are excerpts:

Despite a concerted push from a broad right-left coalition, Senator Mitch McConnell said he had not determined whether he would bring a bipartisan criminal justice overhaul to the Senate floor next year.  “I haven’t decided yet,” Mr. McConnell, the Kentucky Republican and majority leader, said in an interview on Thursday as he began looking toward 2016.

The Senate leader definitely seemed open to the idea.  He said the proposal, which would reduce some mandatory minimum sentences, lead to early release for thousands of nonviolent offenders and set up new programs to help them adjust to life after prison, seemed to meet his criteria for allocating precious Senate floor time.

“It seems to have pretty broad bipartisan support,” Mr. McConnell said of the criminal justice legislation approved by the Judiciary Committee in October.  “This is the kind of thing, when you look at it, you have principals on both sides who are interested in it.  That makes it worthy of floor time.”

However, the legislation, while endorsed by both conservative and progressive interest groups, could present a sticky election-year vote for some Republicans who typically see themselves as law-and-order politicians.  And the issue could get very complicated should Senator Ted Cruz of Texas become the Republican presidential nominee.  Mr. Cruz voted against the plan in the Judiciary Committee and was outspoken in his criticism.  So if the Republican-led Senate moved forward, it could conceivably be pushing legislation opposed by its candidate for the White House.

It is critical to recall that just a few years ago when Democrats still controlled the Senate, then-Senate leader Harry Reid never brought the Smarter Sentencing Act up for a full Senate vote ever after the SSA passed through the Senate Judiciary Committee with bipartisan support and even though there was good reason to believe the SSA would have garnered majority support from the full Senate.  Thus, as this article spotlights, the passage of the Sentencing and Correction Reform Act through the Senate Judiciary Committee provides no certainty that even the full Senate will get a chance to vote of this reform bill.

As reported earlier, it is clear that the first few months of 2016 now constitute the next critical period for federal statutory sentencing reform.  I remain cautiously optimistic that the broader political and social forces that have so far propelled bipartisan support for reform to this point will help carry some bill through both houses of Congress in some form in 2016.  But I am not counting any sentencing reform chickens anytime before they completely hatch out of Congress and find their way to the desk of the President.

December 14, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Tuesday, December 01, 2015

You be the judge: what federal sentence for beloved elderly preist who embezzled half-million dollars?

Fatheredwardbelczakashxjpg-79869763239fae48This local article, headlined "Dozens ask judge for mercy in sentencing of embezzling Detroit-area Catholic priest," provides the interesting backstory for an interesting federal sentencing scheduled for late today. Here are the basics:

A beloved Catholic priest in Troy was scorned when allegations came forth that he embezzled more than $500,000 from church coffers.  Rev. Edward A. Belczak, 70, admitted to diverting $572,775 collected by the church, most of which he kept in a secret private bank account.  He also spent $109,570 to purchase a Florida condo in 2005.

Despite the admissions, dozens of people, including many of the parishioners he defrauded, have come forward to ask for a lenient sentence on behalf of the priest who headed St. Thomas More church in Troy from 1984 until 2013. He's scheduled to be sentenced Tuesday.

Belczak pleaded guilty to mail fraud as part of the plea agreement. In exchange, the U.S. Attorneys Office dismissed more serious charges and asked U.S. District Judge Arthur J. Tarnow to sentence Belczak to just over three years in prison.

Attorney John J. Morad, a friend and supporter of the priest, thinks any prison time is too much. "He made a terrible mistake and I know that he is embarrassed, ashamed and humiliated by the fact that he disappointed so many people who have grown to love and respect him for the work he has done among the people," Morad wrote in a letter to the judge. " ... I know he has confessed his sins and I'm certain God has forgiven him. Should we do anything less?"

The defense has asked for home detention, while sentencing guidelines call for a prison term of between 33 and 41 months.  The theft from the church is believed to have occurred between 2004 and 2012.

UPDATE This Detroit Free-Press article about the sentencing of Father Belczak report on the basic outcome via its headline: "Embezzling priest gets 27 months: 'It's .. my destiny'"

December 1, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (12)

Monday, November 23, 2015

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

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

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

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

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

Download Feauto.Final Opinion.final.112315

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

Monday, November 16, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 12, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

Saturday, November 07, 2015

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

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

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

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

Friday, November 06, 2015

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

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

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

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

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

Thursday, November 05, 2015

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

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

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

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

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

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

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

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

Friday, October 30, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, October 29, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, October 25, 2015

Great Hastings Law Journal coverage of federal sentencing circa 2015

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

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

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

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

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

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

Thursday, October 22, 2015

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

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

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

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

Racial disparity

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

Judge effect

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

Female sentencing

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

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

Monday, October 19, 2015

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

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

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

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

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

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

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

Some prior related posts:

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

Thursday, October 15, 2015

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

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

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

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

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

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

Saturday, October 10, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, October 06, 2015

"Unsophisticated Sentencing"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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