Monday, May 22, 2017

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

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

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

May 22, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, May 21, 2017

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

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

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

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

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

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

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

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

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

Prior recent related posts: 

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

Friday, May 19, 2017

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

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

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

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

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

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

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

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

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

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

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

May 19, 2017 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (26)

Wednesday, May 17, 2017

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts: 

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

Monday, May 15, 2017

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

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

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

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

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

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

KEYNOTE SPEAKER: Judge William H. Pryor

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

MODERATOR: Vikrant P. Reddy

Date: May 17

Time: 12:00 pm - 2:45 pm

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

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

Sunday, May 14, 2017

Some more notable reactions to the Sessions Memo

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

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

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

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

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

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

Prior recent related posts: 

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

Saturday, May 13, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, May 12, 2017

Some notable first-cut reactions to the Sessions Memo

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

Obama AG slams Sessions for shift to harsher sentencing

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

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

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

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

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

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

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

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

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

Prior recent related post: 

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

Wednesday, May 10, 2017

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

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

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

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

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

KEYNOTE SPEAKER: Judge William H. Pryor

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

MODERATOR: Vikrant P. Reddy

Date: May 17

Time: 12:00 pm - 2:45 pm

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

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

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

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

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

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

Tuesday, May 09, 2017

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

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

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

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

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

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

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

Prior related post:

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

Monday, May 08, 2017

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

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

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

Key Findings

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

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

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

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

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

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

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

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

Tuesday, May 02, 2017

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

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

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

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

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

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

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

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

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

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

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

May 2, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (20)

Monday, May 01, 2017

"Unwarranted Disparity: Effectively Using Statistics in Federal Sentencing"

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

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

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

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

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

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

Sunday, April 30, 2017

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

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

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

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

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

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

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

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

Thursday, April 27, 2017

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

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

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

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

Wednesday, April 26, 2017

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

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

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

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

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

Other factors contributing to the decreasing prisoner population:

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

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

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

Monday, April 24, 2017

An empirical dive into federal "Health Care Fraud Sentencing"

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

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

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

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

Monday, April 17, 2017

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

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

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

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

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

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

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

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

Saturday, April 15, 2017

"Sentencing Disparities"

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

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

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

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

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

Sunday, April 09, 2017

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, April 05, 2017

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

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

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

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

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

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

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

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

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

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

Wednesday, March 29, 2017

Notable review of recent ups and downs in federal prosecutions

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

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

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

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

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

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

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

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

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

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

Tuesday, March 21, 2017

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

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

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

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

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

Friday, March 17, 2017

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

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

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

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

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

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

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

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

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

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

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

Monday, March 13, 2017

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

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

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

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

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

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

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

Friday, March 10, 2017

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

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

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

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

Tuesday, March 07, 2017

"Booker Disparity and Data-Driven Sentencing"

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

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

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

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

Monday, March 06, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, March 01, 2017

Justices seem disinclined to limit federal judicial sentencing discretion in Dean

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

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

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

Monday, February 27, 2017

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

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

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

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

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

Sunday, February 26, 2017

SCOTUS considering cases involving sentencing and collateral consequences in coming days

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

Packingham v. North Carolina

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

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

Esquivel-Quintana v. Sessions

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

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

Dean v. United States

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

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

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

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

Tuesday, February 21, 2017

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

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

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

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

Some highlights of the Commission’s study are that:

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

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

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

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

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

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

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

Sunday, February 19, 2017

"I sentenced criminals to hundreds more years than I wanted to. I had no choice."

13FRISK-master675The title of this post is the headline of this recent Washington Post commentary authored by former federal judge Shira Scheindlin. Here are excerpts from a lengthy piece that merits a full read:

In my nearly 22 years as a U.S. district judge in New York, I sentenced roughly 1,000 defendants. Thankfully, not all were subject to “mandatory minimum” sentences — in which Congress has imposed a required statutory punishment for a particular crime. But many were; 145 federal crimes still require a minimum sentence, including distribution of narcotics, immigration violations and identity theft, just to name a few.

Every first-year law student learns that sentencing has four goals: retribution, incapacitation, deterrence and rehabilitation. Yet thanks mostly to the Sentencing Reform Act of 1984 and the Anti-Drug Abuse Act of 1986, I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge. And I was not alone. Over the years, many of my colleagues on the federal bench felt the same frustrations.

This problem upset me as soon as I was appointed in 1994. Mandatory minimums were almost always excessive, and they made me feel unethical, even dirty. After seven years, my patience had run thin and my conscience was troubled; I began to consider resigning. I sought the advice of a revered mentor, a federal judge with more than 30 years of experience. He pointed out that quitting would serve nobody, as another judge would be required to impose identical sentences anyway. He also said that if I left, the bench would lose a judge who could advocate for criminal justice reform through her decisions. So I remained. But to this day, I am pained by many of the sentences I was required by law to impose. While I bore the title “Honorable Judge,” I felt less than honorable and more like a complicit tool of an unjust system....

Judicial discretion in sentencing matters. Many judges, including me, routinely sentence below the guidelines, particularly for first-time, nonviolent drug offenders. Indeed, in 2015 only 36.5 percent of all drug offenses nationwide resulted in a guideline-compliant sentences. Between 2005 and May 2016, when I retired from the bench, I sentenced more than 200 defendants convicted of narcotics offenses and imposed a lighter-than-advised sentence more than 80 percent of the time. Had I sentenced at the top of the guidelines’ range, these defendants would have served more than a millennium of additional prison time.

After I left the bench, Peter Dubrowski — my last law clerk — and I decided that we would review the sentencing protocols for each of those 200 defendants. As I expected, we found strikingly similar storylines. The overwhelming majority of the defendants were indigent. Seventy-two percent had children to support, and many of the defendants were under the age of 25 — barely adults themselves. More than half had not graduated from high school, most had not obtained a GED, and barely 5 percent had attended college. A majority battled alcohol addiction, drug addiction or both, and had begun abusing substances by age 14. Most were unemployed. Most came from single-parent homes, and most had at least one parent who was, or had been, incarcerated....

Does the length of the sentence deter people outside the courtroom from committing crimes? This is a popular idea in our country. Over time, I came to believe it is fiction. If this effect was real, my fellow judges and I would have seen narcotics arrests and prosecutions decline over the years. They never did. No young man on the street was ever deterred from criminal activity by the sentence given to a buddy. “Contrary to deterrence ideology and ‘get tough’ rhetoric,” says a report from the Sentencing Project, a nonprofit that studies criminal punishment, the evidence “fails to support” deterrence.

February 19, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (11)

Friday, February 17, 2017

US Sentencing Commission announces plans and opens registration for two(!) national seminars

I was intrigued this morning to receive an email from the US Sentencing Commission announcing that it will be conducting two "National Seminars on the Federal Sentencing Guidelines." As this USSC webpage reveals, historically the USSC has presented only a single annual seminar, and even that event did not happen in 2013 due to tight budget times thanks to the sequestration that year.  But now, despite a new administration saying two bad old federal regulations are going to be cut for every shiny new one, apparently the mighty Sentencing Commission this year was able to flip this around by offering two shiny new seminars when in the bad old days we only got one.

Jokes aside, I have always found the USSC annual seminars to be terrific and informative events, and the fact that these events are free to participants and fully open to the public truly makes them a very valuable and important form of government public service. This USSC page provides the details of the two upcoming events and links for registering for them:

2017 National Seminar Series on the Federal Sentencing Guidelines

May 31-June 2 in Baltimore

September 6-8 in Denver

The Commission will also hold a seminar in San Diego on June 22-23 for judges only.  Other seminars are open to the public.

Registration opened on Friday, February 17, 2017 for both the Baltimore and Denver seminars.  Registration is on a first come, first served basis.

February 17, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Friday, January 20, 2017

You be the judge: what federal sentence for "Dance Mom" star after her guilty plea to financial crimes?

Abby-lee-millerI am not ashamed to admit that some years ago the reality show "Dance Moms" was a regular watch in the Berman home.  My dancing daughters found engaging how the young dancers in the show stood up to the pressures created by teachers and parents; I was amazed at how the adult star, Abby Lee Miller, created a media sensation despite having no obviously distinctive talents.  But now, as this local article highlights, headlined "'Dance Moms' TV star faces sentencing in federal court," Abby Lee Miller is now of interest to me for a very different reason. Here are the details:

“Dance Moms” TV star Abby Lee Miller, convicted of hiding assets from bankruptcy court and sneaking cash into the U.S. to conceal it, says she shouldn’t go to federal prison. Ms. Miller, whose real name is Abigale Miller, is asking U.S. District Judge Joy Flowers Conti for probation.

But the government says she has shown no respect for the law — at one point she sent an email to her accountant using a vulgar term in referring to the bankruptcy judge handling her case — and deserves the two years to 30 months called for by federal sentencing guidelines.

Ms. Miller’s sentencing will start today. A second day has been set aside to finish it on Feb. 24. The unusual format was necessary because the sentencing is likely to be contentious enough to require two days and the judge also is handling the ongoing drug trial of former Pittsburgh Steelers doctor Richard Rydze.

Ms. Miller became a federal felon in June when she pleaded guilty to concealing assets from her TV show from federal bankruptcy court in Pittsburgh. She also admitted that she sneaked cash into the country in plastic bags stuffed into luggage after returning from dance trips in Australia. In pre-sentencing filings, Ms. Miller gave an accounting of her past, saying her family-run Penn Hills dance studio was in financial trouble in the late 2000s because of her lack of financial knowledge and a drop in enrollment caused by the global economic crisis and the decline of Penn Hills. She declared bankruptcy in 2010.

But when her reality TV show took off in 2011, she and her lawyer said, she suddenly became a star and didn’t know how to handle the fame that it brought. She soon became overwhelmed. “She was simply ill-equipped to manage her good fortune,” wrote attorney Brandon Verdream. He said she always intended to pay off her creditors at 100 percent and has admitted that what she did was wrong. “It was a foolish decision to skirt the law and she has accepted a felony conviction as the wages of her frivolity,” Mr. Verdream wrote.

He and Ms. Miller, who had been splitting time among homes in California, Florida and Penn Hills, also pointed to all of the people she has helped over the years as one reason she should not be jailed, including the 40-some dancers she has trained who went on to professional careers on Broadway and elsewhere. Mr. Verdream presented many letters on her behalf and asked Judge Conti to impose a “non-custodial” sentence.

But federal prosecutors say the guidelines don’t allow for probation and Ms. Miller’s calculated conduct warrants time behind bars. Assistant U.S. Attorney Greg Melucci said that Ms. Miller had numerous opportunities during her bankruptcy to set the record straight about her assets, yet chose to lie repeatedly.

Among his exhibits are emails and texts she sent showing her contempt for the court and her intent to hide income even after warnings. After being dressed down by U.S. Bankruptcy Judge Thomas Agresti in February 2013, for example, she sent an email to her accountant describing the judge using a derogatory term and complaining that he hated her because he was making her pay all of her creditors back at once.

Judge Agresti showed plenty of irritation at Ms. Miller as her schemes became apparent, Mr. Melucci said. At one hearing in 2012, he found out she hadn’t revealed her income from 2012 and had also struck TV show contracts without disclosing them in an amended bankruptcy plan. After she complained that she didn’t even know about the contracts, he’d had enough. “And she can shake her head and protest all she wants and go through her TV face, that’s not going to affect me, ma’am, and I’d prefer you stop it, OK?” the judge told her. “Let’s be a little stoic here. These are very serious problems you have, and a failure to disclose.”

Mr. Melucci also said her attempt to transport cash into the U.S. shows that she continued “her scheming ways” even after being caught hiding assets from bankruptcy. “It is apparent that Miller is not easily deterred by the threat of criminal prosecution,” he wrote, “even standing before a federal judge.” Judge Agresti discovered Ms. Miller’s fraud by chance. He said he was channel-surfing one night, came across her TV performances and realized she had more money than she was revealing in her Chapter 11 filings.

The U.S. Attorney’s office said she tried to hide about $755,000 from the bankruptcy trustee. In the other case, prosecutors said she did not report money that she transferred from Australia into the U.S. after trips there in 2014 to conduct dance instruction classes before large audiences. Mr. Melucci said she and her entourage brought back about $120,000 in cash tucked into Ziploc bags in amounts less than $10,000 and hidden in their luggage. Among the government’s exhibits is a photo of the cash bundles seized.

January 20, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4)

Sunday, January 08, 2017

"Mending the Federal Sentencing Guidelines Approach to Consideration of Juvenile Status"

The title of this post is the title of this notable new Harvard Law Review note. It gets started this way:

In a series of recent cases, the Supreme Court has reaffirmed the profound significance of a juvenile offender’s age in sentencing, seemingly rendering youth status a mandatory sentencing consideration as a constitutional matter — in at least some cases — and under the statutory sentencing directive.  Still, as a matter of policy, the Federal Sentencing Guidelines (Guidelines) — the required starting point for sentencing courts in federal cases and the benchmark for assessing the reasonableness of a sentence for appellate courts — discourage consideration of an offender’s youth and related circumstances in determining whether to depart from the recommended statutory sentencing range.  Though after United States v. Booker the Guidelines have been advisory only, the Court has recognized that even advisory Guidelines can, at times, exert an impermissible anchoring effect on sentencing courts.

This Note argues that Congress and the United States Sentencing Commission (Commission) should take seriously both the letter and spirit of the Court’s recent juveniles-are-different cases, which favor a return to a rehabilitative approach to young offenders.  Congress should address apparent conflicts between its statutory sentencing schemes and these recent cases by expanding the range of sentencing options for juvenile offenders convicted in federal court, and the Commission should promulgate new rules regarding calculation of sentences for juveniles convicted as adults in federal court.  Further, until such rules are promulgated, this Note contends that appellate courts should hesitate to presume reasonable within-Guideline sentences for juvenile offenders absent evidence that a sentencing court has considered age.

This Note proceeds in four parts.  Part I provides a brief history of the Guidelines, from development through the Court’s attempts to clarify their place post Booker. Part II describes the history of the treatment of juvenile offenders in federal courts and details the Court’s recent juveniles-are-different sentencing jurisprudence.  Part III argues that, for various reasons of law and policy, both Congress and the Commission should offer new guidance on how courts should approach the process of sentencing juvenile offenders convicted as adults.  Finally, Part IV recommends statutory changes and amendments to the Guidelines.

January 8, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, January 06, 2017

Seventh Circuit panel affirms above-guideline drug sentence ... with Judge Posner suggesting USSC involvement would be better than a sentencing "hunch"

An otherwise little and unremarkable sentencing appeal became blog-worthy because of Judge Posner's provocative opinion for the court in US v. Gibbs, No. 16-1747 (7th Cir. Jan. 6, 2017) (available here). Here is some background and the blog-notable aspect of Judge Posner's opinion:

The defendant pleaded guilty to possessing cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Because of the quantity of the cocaine that he possessed and his history of drug and other criminal offenses, his guideline sentencing range was 151 to 188 months and his statutory maximum 240 months. The government recommended a 216‐month sentence ... and that was the sentence that the district judge imposed....

The judge explained that he was imposing a sentence significantly higher than the top of the defendant’s guideline range on the basis of the “[18 U.S.C. §] 3553(a) [sentencing] factors.”  He called the defendant “a poster child for being a career offender,” and told him “unfortunately you may be one of those people that will never be able to conform to be a law‐abiding person.”....

Neither the government, in recommending a 216‐month sentence, nor the district judge, in imposing it, attempted a sophisticated analysis of the likely consequences for the defendant, his family, and society (primarily the persons to whom he sold illegal drugs) of adding roughly two years to the sentence he would have been given had the judge stopped at the top of the guideline range.  Judging from the government’s brief and the judge’s sentencing statement, both the prosecution and the judge based the 216‐month sentence (proposed by the government, imposed by the judge) on a hunch.  As the prosecutors as well as the judge are highly experienced, their hunches are likely often to be reliable. And because federal prosecutors are free to suggest any sentence within the statutory range, and a federal district judge has broad latitude in picking the sentence to impose within that range, and because the briefs and argument of defense counsel in this case bordered on the perfunctory ... the sentence must be affirmed.

Some consideration, however, should be given to the possibility of basing a prison sentence — at least a very long one (and an 18‐year sentence is very long) — on something other than a hunch.  The work of the U.S. Sentencing Commission in formulating sentencing guidelines provides a clue to a possible alternative. The sentencing judge, instead of ranging at large, with little guidance, over the wide space between the statutory minimum sentence for the defendant’s crime or crimes and the statutory maximum, might consider asking the Sentencing Commission to evaluate the appropriateness in particular cases of all the possible sentencing points in the statutory sentencing range, including points that fall outside the guideline sentencing range.  In a case like the present one the Sentencing Commission might advise the prosecutors, defense counsel, and the judge why it had fixed the guideline range where it did and how disapproving it would be of sentences below or above that range.  The Commission might for example take a close look at the government’s suggested 216‐month sentence in this case and the arguments the government gives for it, and conclude that maybe it’s a proper sentence given the particular facts of the case even though it lies outside the guideline range.  The defense proposed a sentence of only 10 years, which would be about two and a half years below the sentencing guideline; and again, the Commission might agree in the special circumstances of this case that that was a plausible alternative to a sentence in the guideline range — or might explain why it was not.  Judges wouldn’t have to ask the Commission for its input, or follow its recommendations, but they might find it a valuable resource.

The Judge Posner's opinion nominally represents the opinion of the Seventh Circuit, the other two judges on the panel (Judges Kanne and Sykes) wrote separate concurring opinions (and Judge Sykes opinion is only concurring in the judgment). Judge Kanne does join Judge Posner's opinion, but his separate opinion captures some aspects of my reactions to what Judge Posner suggests:

I write further to add that although Judge Posner has envisioned an interesting method to arrive at an appropriate sentence in individual cases, it is my view that such a unique system would be fundamentally unworkable in practice and contrary to the statutory provisions enacted by Congress and approved by the Supreme Court.

January 6, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

An optimistic accounting of many areas for bipartisan federal criminal justice reform ... and good lines of inquiry for AG nominee Jeff Sessions

The week brought this extended commentary by Mark Holden at The Hill under the headline "Criminal justice reform is ripe for bipartisan achievement." I recommend the piece in full, and here are highlights of the reforms urged (with Holden's accounting of "reason it could pass" left out so readers will be encouraged to click through):

Criminal justice reform has been one of the few policy areas where Republicans and Democrats have forged bipartisan consensus.  They have come close to passing reform the past two years, and now it’s up to GOP lawmakers to pick up where they left off. Leaders as diverse as Sens. Cory Booker (D-N.J.) and Mike Lee (R-Utah) agree that the current system is broken....

That’s why it’s critical that leaders in Congress take up criminal justice reform. If they focus on six key areas of reform, there’s a real possibility that legislation could pass in both the House and Senate, even with the Senate’s 60-vote threshold, a bar not easily achieved on other issues.

Here are the six areas of reform — and the reasons they have a viable path to becoming law.

First, we need to reform the grand jury process and rein in prosecutorial overreach. As Judge Kozinski has advocated, lawmakers should require open file discovery, so prosecutors hand over all evidence favorable to an accused person, and also establish truly independent prosecutorial review units to investigate abuses....

Second, we must protect every citizens’ Sixth Amendment rights.  When it comes to federal cases, Congress should ensure that all individuals — regardless of income level – have an adequate chance to retain counsel before they appear in court.  It should also explore the model that some states have moved to, which allows defendants to choose a private lawyer from a list of options, rather than being appointed a lawyer who may not offer a competent defense....

Third, the punishment must fit the crime. Congress should reform mandatory minimums that don’t make sense and increase the use of “safety valves,” which allow judges to use their discretion for non-violent offenses if the offender meets certain requirements. These reforms are particularly important for low-level and non-violent offenders (mostly involving drug crimes), who too often languish in prison for years or even decades at a time at great cost to their families and our society at large.....

Fourth, prisons should leave individuals better off than when they came in. Prison rehabilitation programs have proven to reduce the chance of re-offense and save taxpayer dollars....

Fifth, Congress should give worthy individuals a chance to rejoin society and find fulfillment in their lives.  Lawmakers could start by “banning the box” from federal employment applications so that individuals with a record can be considered for government jobs.  Congress, however, should not mandate that companies “ban the box,” but should allow them to voluntarily do so.  Congress should also clear the record of qualifying youth and non-violent federal offenders; limit solitary confinement for juveniles; and establish effective rehab, educational, and vocational programs so that every individual leaves prison a better person than when they came....

Finally, Congress needs to dramatically scale back the federal criminal code and ensure that all criminal laws have adequate criminal intent, also known as “mens rea.”  The criminal code is a stunning 27,000 pages and comprises an estimated 4,500-6,000 criminal laws — and that doesn’t even include the thousands of additional federal regulations that impose criminal punishments. Many penalize people who had no idea they were committing a crime — missing a basic historical requirement that once existed in the criminal law to protect people from being unfairly prosecuted....

Any one of these reforms would improve our federal justice system — and have a profound effect on our society.  Taken together, they will make communities safer, support our brave law enforcement officers, save taxpayer dollars, and empower individuals in need of a second chance.  That’s precisely why Republicans and Democrats alike will have a difficult time answering to their constituents if they resist such reforms.  Doing so would be a clear political move that overlooks the millions of Americans who would be better off as a result of this bipartisan achievement.

If President-elect Trump and the GOP Congress take up criminal justice reform, it will be a sure sign that they are willing to look beyond party lines in order to improve people’s lives.  That would be good start to putting individuals’ safety and wellbeing ahead of partisan politics.

As the title of this post suggests, I think this piece's accounting of six areas in need of reform would provide a fantastic guide for questions for Senator Jeff Sessions during his hearings to serve as Attorney General. These questions can be softball (e.g., do you believe prison rehabilitation programs can be valuable?) or tough (e.g., do you think there should be more means for federal inmates to earn sentence reduction for participating in prison rehabilitation programs). And I welcome readers to use the comment to make more suggestions for additional soft or tough questions on these or other fronts.

Critically, and as I hope to outline more fully in a post over the weekend, I feel very strongly that those Senators who support federal criminal justice reforms ought to use the Sessions' confirmation hearing to do much more that just simply attack the Senator for long-ago acts or statements claimed to be evidence of racism or insensitivity.  Instead, by crafting astute questions concerning specific area of the federal criminal justice system in need of reform, members of the Judiciary Committee could and should be able to get Sessions to express support for — or at least a lack of opposition to — many of the bipartisan reforms discussed above and widely embraced inside the Beltway in recent years.

January 6, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Wednesday, January 04, 2017

GOP Senate Judiciary Chair Chuck Grassley says federal sentencing reform a priority after Trump nominations completed

This lengthy new Politico article, headlined in full "Senators plan to revive sentencing reform push: Senate Judiciary Chairman Chuck Grassley says he's not done yet pressing a cause with broad bipartisan support," brings some welcome new year good news for advocates of federal sentencing reform.  Here are the details, with a couple of lines emphasized for subsequent commentary:

Criminal justice reform — the great bipartisan hope of 2016 that ended in disappointment — may not be dead just yet. Senate Judiciary Committee Chuck Grassley (R-Iowa) plans to take up a bill to revamp U.S. sentencing laws and reform prisons soon after his panel clears the high-profile nominations from Donald Trump. A similar measure passed his committee overwhelmingly last year before stalling out in the face of opposition from law-and-order conservatives.

But Grassley told POLITICO he will soon try again. "The committee will begin the year working through the attorney general and Supreme Court nominees, but criminal justice reform will be one of the legislative bills I plan to bring up early on,” he said in a statement. “It cleared the committee with a broad bipartisan majority in the last Congress, and I don't expect that to change.”

The chief authors of the criminal justice overhaul, led by Grassley and Senate Minority Whip Dick Durbin (D-Ill.), will continue to try to drum up more support among senators, while “educating” the Trump administration about their bill’s merits, Grassley said.  The legislation isn’t expected to be substantially different than last year’s version.

Criminal justice reform could’ve been one of the bright, bipartisan spots in an otherwise contentious election year. But despite support from President Barack Obama, powerful congressional Republicans, and a sprawling network of groups from the left and right, the legislation never made it to the floor.  That was partly due to the determined efforts of law-and-order conservatives to steamroll it — and there's little to suggest that if the legislation heads to the Senate floor, that dynamic would change.

Nevertheless, Durbin approached Grassley after the election and pressed the chairman about whether the duo should make another run at it this year, Durbin recalled in a recent phone interview. Grassley was in. And once the chairman tees up the bill this year in his committee, its supporters expect a bipartisan vote similar to the 15-5 tally it received in October 2015.

Durbin and Grassley’s aides have been discussing a strategy to advance the bill in 2017. Aiding their cause is the fact that three opponents — GOP Sens. David Vitter of Louisiana, Jeff Sessions of Alabama and David Perdue of Georgia — are leaving the committee this year, stirring hope that the vote count in favor of the measure could be higher. Vitter no longer serves in the Senate, Sessions is expected to be confirmed as attorney general and Perdue is shifting committees. Replacing them on the influential panel are Sens. Ben Sasse of Nebraska, Mike Crapo of Idaho and John Kennedy of Louisiana. “I think the committee will be just as strong. It may be stronger,” Durbin said. “When you have people like Grassley and Durbin and [Senate Majority Whip John] Cornyn and [Sen. Patrick] Leahy for goodness sakes … it ought to be enough for us.”...

Senate Majority Leader Mitch McConnell (R-Ky.) is rarely eager to take up policy fights that divide his conference — and Democrats point a finger at him as a prime reason why criminal justice reform stalled last year. “The problem we ran into is Sen. McConnell, who didn’t want to call the bill to the floor. He was concerned about the impact on the election and also that the House wasn’t going to take it up,” Durbin said. The question remains going forward, he added, "whether McConnell will give us a chance.” McConnell aide Don Stewart responded that the majority leader spoke several times about the issue in 2016 and “doesn’t need Sen. Durbin to be his spokesman.”

The president-elect ran on a law-and-order platform, but Trump doesn't appear to have weighed in on the Senate measure during his campaign. Another wildcard factor is Sessions, Trump’s pick to become the attorney general.  As a senior member of the Senate Judiciary Committee, he was a fervent opponent of the sentencing overhaul and one of the five votes against it.

But Sen. Thom Tillis (R-N.C.), another supporter of the criminal justice reform effort, speculated that once Sessions becomes the attorney general, his chief objective will be on enforcing what Congress sends him — even if he disagrees with it — rather than slipping into the role of legislator and try to change the laws. “He’s going to be focused on being the nation’s top law enforcement official,” Tillis said. “I don’t necessarily see him weighing in heavily on public policy choices that President Trump makes.”

Durbin said he intends to press Sessions on his views of criminal justice reform and how he’ll handle the issue at the Justice Department when the two meet privately to discuss about his bid to become attorney general on Wednesday.  Though Sessions had wanted to meet earlier, Durbin said Senate Democrats decided as a caucus to not meet with any Cabinet selections until the new year. “I want to know after all of the speeches he gave on the floor against criminal justice reform, what we can expect of him as attorney general,” Durbin said. “I don’t know what he’ll say.”

Still, others speculate that after Washington endures partisan wars over repealing Obamacare and confirming polarizing presidential nominees, Trump will be looking for a bipartisan win. Criminal justice reform could deliver one. “I know we have enough votes to send this to the president’s desk,” Tillis said. Stressing his desire to avoid legislative gridlock, Tillis added: “The election was not a Republican mandate. The election was a results mandate.”

This story is both encouraging and not all that surprising given the events of the last few years surrounding the proposal, debates and modifications of the Sentencing Reform and Corrections Act. The two lines I have emphasized reflect two coming developments that I think are crucial to this developing 2017 federal sentencing reform story:

1. I think it would be a policy mistake, despite the 2015 Judiciary Committee success of the SRCA, for that bill to serve the essential template for new Senate reform legislation. In my view, there are a host of ways a new and improved federal sentencing reform bill could and should be much more streamlined AND I think a new bill could and should garner even more bipartisan support if it also were to include some modest (or even aggressive) mens rea reforms.

2. I think Senators Sessions and Durbin are really critical players here, especially over the next few weeks, as Sessions develops and articulates his priorities as Attorney General and as Durbin seeks to explain why the horrific uptick in violent crime in his own Chicago (Which Prez-Elect Trump has been tweeting about) should not be a reason to tap the brakes on any further federal sentencing reforms.

January 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, January 03, 2017

Eleventh Circuit Judge, and SCOTUS short-lister, William Pryor named Acting Chair of the (now hobbled) US Sentencing Commission

Because of the rumored short-list of the short-list of possible SCOTUS nominees, this press release coming today from the US Sentencing Commission might get a bit more than usual amoung of attention. Here is the full text of the release, the last paragraph of which is really the most important:

The United States Sentencing Commission announced that Circuit Judge William H. Pryor, Jr. will serve as Acting Chair of the Commission, as the term of the former Chair, Chief Judge Patti B. Saris expired at the end of the 114th congressional session.

In his first statement as Acting Chair, Judge Pryor of the Eleventh Circuit Court of Appeals said, “I am honored to act as Acting Chair of the Commission and commend the exemplary leadership of Chief Judge Saris during her term. I look forward to our continued work to further the Commission’s critical mission of developing federal sentencing policies that further the goals of the Sentencing Reform Act of 1984.”

The terms of Judge Charles R. Breyer (former Vice Chair) and Commissioner Dabney L. Friedrich also expired.  By statute, commissioners are appointed by the President and confirmed by the Senate, and serve six-year terms. At least three of the commissioners must be federal judges and no more than four may belong to the same political party. Remaining commissioners include Commissioner Rachel E. Barkow, Commissioner J. Patricia Wilson Smoot (ex-officio, U.S. Parole Commission), and Commissioner Michelle Morales (ex-officio, U.S. Department of Justice).  The Commission must have at least four voting Commissioners for a quorum.

Because ex-officio members of the USSC do not have voting rights, the current Commission is now officially two members short of a quorum and five members short in total.  For those eager to see continued federal sentencing reforms and improvement, this is a very big deal and a very big problem.

I am hopeful (but not especially optimistic) that the incoming Trump Administration might make staffing the USSC with new Commissioners a "first 100 days" priority.  I am not sure whether having Judge Pryor as Acting Chair and/or having him be a possible SCOTUS pick makes staffing the USSC more or less likely.  I suppose time will tell.

January 3, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (5)

Sunday, January 01, 2017

Any astute thoughts about the sentencing year that was or the year that will be?

A variety of other (mostly non-work) engagements have prevented me from having the time to do any elaborate year-in-review or year-to-come posts about sentencing topics.  That said, as I take my 2016 calendars down and replace them with the 2017 versions, two matters come to mind that implicate both the year that was and the year to come:

1. SCOTUS transition: though representing only one vote, Justice Scalia's voice and impact on sentencing and criminal justice jurisprudence was far larger than his voting record.  The impact and import of his legacy and his absence, along with the coming character of his SCOTUS replacement, cannot be readily overstated.

2. Marijuana reform (but few other big sentencing reforms): with four more states voting for full recreational reform and nearly a dozen others enacting or enhancing medical regimes, in 2016 marijuana reform continued at a remarkable clip while broader drug war and other sentencing reform stalled (at least at the federal level). What the new GOP executive leaders in DC will now do on these fronts is among the most interesting and dynamic and uncertain story to watch in 2017.

As always, I welcome reader throughout on these topics and any others about the year that ended yesterday or the new one getting started today.

January 1, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Who Sentences? | Permalink | Comments (5)

Wednesday, December 21, 2016

"The Obama Legacy: Chipping Away at Mass Incarceration" ... but ...

The quoted portion of the title of this post is the headline of this notable new commentary authored by Marc Mauer.  Perhaps appropriately given the "Obama Legacy" label, the piece is focused mostly on the federal sentencing system.  And, in my view inappropriately, the piece gives Prez Obama a little too much credit for some of what I consider to be his "day late and dollar short" work in this arena.  With that set up, here are excerpts (with two lines emphasized that really rankles me, as I will explain after the excerpt):

As President Obama prepares to leave office, the United States still holds the dubious honor of having the highest incarceration rate in the world, with 2.2 million people behind bars. In order to assess his impact on the criminal justice system, it’s necessary to examine the policy shifts that got us here in the first place.

In 1980 there were 24,000 people in the federal prison system, about 25% of whom were serving time for a drug offense. By the time Obama was elected in 2008, that number had ballooned to 201,000 people, nearly half of whom were locked up for a drug offense.

There are two key reasons for the population explosion — both rooted in the war on drugs.  First, President Reagan encouraged federal law enforcement agencies and prosecutors to emphasize drug arrests. Second, Congress adopted mandatory sentencing policies — frequently applied to drug offenses — that established a “one size fits all” approach to sentencing. Federal judges were obligated to impose prison terms of 5, 10, 20 years — or even life — largely based on the quantity of drugs involved. They were not permitted to take any individual factors, such as histories of abuse or parenting responsibilities, into account to mitigate those sentences. The racial disparities from these sentencing policies were particularly extreme.

The most egregious of these policies were tied to crack cocaine offenses.  Someone possessing as little as five grams of the drug (about the weight of a sugar packet) would face a minimum of five years in prison.  That threshold was significantly harsher than the mandatory penalty for powder cocaine, which required a sale of 500 grams of the drug (a little over a pound) to receive the same penalty.  Since 80% of crack cocaine prosecutions were brought against African Americans, the racial disparities from these sentencing policies were particularly extreme.

Momentum for reforming the crack cocaine mandatory minimum laws predated the Obama administration, and had growing bipartisan support when the President took office.  The President signed the Fair Sentencing Act into law in 2010, reducing sentencing severity in a substantial number of crack cases.  Then in 2013, Attorney General Eric Holder issued a memorandum to federal prosecutors calling on them to avoid seeking mandatory prison terms in low-level drug cases, which has cut the number of cases with such charges by 25%.

While the changes in sentencing laws have helped to reduce the federal prison population, the highest profile of Obama’s reforms is his use of executive clemency to reduce excessively harsh drug sentences.  That is a story of both politics and policy.  During Obama’s first term he used his clemency power far less than his predecessors — a pattern that was sharply criticized by many reform groups and editorial  boards. But after launching a “clemency initiative” in 2014, the President has commuted the drug sentences of more than 1,100 individuals (with promises of substantially more by the time he leaves office).  Notably, in about a third of these cases, the individuals had been sentenced to life without parole due to mandatory sentencing policies....

Perhaps the most significant aspect of President Obama’s work in regard to criminal justice reform has been his role in changing the way we talk about the issue. After a disappointing first term in which these issues received only modest attention, Obama’s last years in office framed criminal justice reform as a top priority. Among a series of high-profile events during his second term was the President’s address on mass incarceration at the NAACP national convention, at which he concluded that “mass incarceration makes our country worse off.”

Mass incarceration did not come about because there is a shortage of ideas for better approaches to public safety — it was the result of a toxic political environment where legislators favored political soundbites over evidence. By using the bully pulpit to frame justice reform as a major issue, Obama provided some coverage for mainstream legislators to support sound policy options.

It is difficult to be optimistic that the incoming administration will look favorably on criminal justice reform.  Leading Republicans, such as House Speaker Paul Ryan, may be persuasive in making the conservative argument for reform.  But President-elect Trump’s “tough on crime” rhetoric, which paints many incarcerated people as “bad dudes,” suggests progress at the federal level will be a challenge.  Realistically, opportunities for justice reform are more likely at the state level. Many local officials are already convinced of the need for sentencing reform and reentry initiatives, and they may be less influenced by the political climate in Washington. If so, such changes at the local level may ultimately gain traction in a Trump White House as well.

1.  The first line emphasized above makes me extra crazy because it falsely portrays Prez Obama as a bold leader who used the bully pulpit in order to provide "coverage for mainstream legislators to support sound policy options."  This could not be more backwards: Prez Obama was a timid and disappointing follower here, as his July 2015 NAACP speech about the need for reform came only AFTER "mainstream" politicians ranging from Rand Paul to Corey Booker, from Ted Cruz to Patrick Leahy, from Rick Perry to Deval Patrick, from Bobby Jindal to Jim Webb, from Chuck Grassley to Dick Durbin, from Jim Sensenbrenner to Bobby Scott, from Raul Labrador to Elijah Cummings, from Judy Chu to Mia Love, from Newt Gingrich to even Chris Christie had all spoken in some significant ways about the need for significant criminal justice reform and especially sentencing reform (and I am sure I am leaving out many others).

2.  The second line emphasized above makes me crazy for more "inside baseball" reasons: given that this commentary makes much of the "egregious" crack/powder cocaine sentencing policies that were only partially fixed by the FSA, the commentary ought to take a moment to note that Prez-Elect Trump has nominated as Attorney General the most prominent and vocal GOP Senator who was complaining loudly about the 100-1 crack/powder laws before doing so was popular or comment.  As noted in this post and recently reported by the Wall Street Journal, " Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime."  

I really respect so much of the work Marc Mauer does in his commentary and through The Sentencing Project, but these troublesome statements reflect what I am seeing as the worst tendencies of the "commentariat class" since the election.  Specifically, even though Prez Obama's record on sentencing reform is relatively unimpressive (especially as compared to his record on lots of other issues), many on the left seem eager to assert that Prez Obama really achieved a lot in this arena and then go on to gnash teeth about reform momentum being halted now that there is a new sheriff in town.  This narrative entirely misses, in my opinion, not only (a) the reality that Prez Obama himself retarded reform momentum in many ways (e.g., by getting such a late start on clemency, by resisting mens rea reforms that could have been included in bipartisan sentencing reform bills), but also (b) the (significant?) possibility that many GOP leaders in Congress who have actively promoted and worked hard on federal sentencing reform bills will keep up that work in the years to come.

December 21, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17)

Sunday, December 11, 2016

You be the federal sentencing judge: how long a prison term for convicted Philly US Representative? UPDATE: He got 10 years!

Ap_927490019645-2I find high-profile, white-collar sentencing cases to be among the most interesting and dynamic because they often require a judge (and others) to balance and calibrate competing punishment theories and goals.  Because most white-collar offenders are not violent and often had a successful/productive life before getting into trouble, the need for severe punishment to incapacitate or specifically deter an offender from committing future crimes is often diminished.  But because potential white-collar offenders are likely influenced by the deterrent impact emerging from the punishment of others like them, and also because white-collar offenders typically have had a relatively advantaged background, one can reasonably believe that crime control and just punishment concerns justify always throwing the book at any and all serious white-collar offenders.  

With that backdrop, I am not surprised to have seen this past week a pair of articles reporting on lawyers are fiercely debating the federal sentences for a convicted politician from the City of Brotherly Love.  The sentencing of Chaka Fattah takes place this Monday, and these two local articles, linked here and with their introductions, provide the basics for any wanna-be federal sentencing judge:

"Feds recommend 17-22 years in prison for Fattah"

Chaka Fattah could spend the next two decades in prison if federal prosecutors get their way at the former congressman's sentencing hearing next week. In a memo filed with the court late Monday, government lawyers described the Philadelphia Democrat as "self-serving" and utterly unremorseful and urged U.S. District Judge Harvey Bartle III to sentence him within a range of 17 to 22 years in prison.

"Fattah understood the power and trust given to elected officials and that corruption benefits the few at the expense of the many," Special Assistant U.S. Attorney Eric Gibson wrote. "He chose to violate the trust of his constituents and the taxpayers to line his pockets and advance his personal and professional goals at their expense."

That punishment, if imposed, would far exceed those received by other Philadelphia-area politicians who ran afoul of federal corruption cases. State Sen. Vincent Fumo received five years after his 2009 conviction on 137 counts including conspiracy and fraud. But prosecutors noted that their recommended sentence for Fattah fell well within the federal sentencing guidelines for his crimes. What's more, they said, it tracks with other recent sentences for corrupt politicians, including former New Orleans Mayor Ray Nagin and former Detroit Mayor Kwame Kilpatrick, convicted of similar crimes.

"Fattah lawyers: A 17-to-22 year sentence for ex-congressman would be 'unnecessarily harsh'"

Chaka Fattah's lawyers pushed back against prosecutors Thursday, calling the two-decade-long sentence they recommended for the former congressman "extreme" and "unnecessarily harsh." Such a punishment, they said in a court filing, would be the longest prison term ever received by a member of Congress for corruption.

Instead, the defense urged U.S. District Judge Harvey Bartle III to consider a far shorter term and argued that the Philadelphia Democrat's misdeeds hardly compared to those of politicians found guilty in more serious cases.  "While it is true that Chaka Fattah now stands before this court convicted of serious crimes, he is also a man that has dedicated his entire life to the service of others," defense lawyer Mark Lee wrote.  "As a legislator, he made the education of disadvantaged youth his life's work.  And as a mentor and role model, Chaka Fattah inspired countless young men and women to service and self-improvement."

The defense's sentencing recommendation followed one filed Monday by prosecutors, who argued that Fattah deserves a sentence of between 17 and 22 years under federal sentencing guidelines. Fattah's team, in its filing, countered that the correct guideline range was 11 to 14 years — and suggested a far shorter term than that.

Their back-and-forth set up what is likely to be a contentious court battle Monday when Fattah, 60, will become the first member of Pennsylvania's congressional delegation to be sentenced in a federal corruption case since 1996, when Pittsburgh-area Rep. Joseph P. Kolter was sentenced to six months for covering up his theft of thousands of dollars in taxpayer funds with vouchers that claimed he used the money to buy stamps for his office.

My own punishment views in these kinds of white-collar cases, which may be influenced both by my ivory-tower history and my past work for certain white-collar defendants, lead me to believe that a few years in federal prison (plus a big financial sanction) will usually be sufficient to achieve utilitarian and retributivist goals. Stated slightly differently and in terms of the key directive of federal sentencing law, I tend to view any prison sentence of more than a few years when the defendant poses no real continuing threat to public safety to be "greater than necessary" to achieve congressional punishment purposes.

UPDATEThis Politico article completes the sentencing story in its headline: "Fattah sentenced to 10 years in prison."

December 11, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10)

Saturday, December 10, 2016

US Sentencing Commission proposes many guideline amendments as many USSC members complete service

JS-USSC_Logo-e1405802171396This extended press release from the US Sentencing Commission reports on the significant activities of the USSC at its public meeting yesterday.  The press release also explains a bit why these activities took place at this time and why the USSC is on the verge of a big transition.  Here are highlights (with links from the original):

Today the United States Sentencing Commission unanimously voted to publish proposed amendments to the federal sentencing guidelines.

The public meeting afforded the current commissioners the opportunity to work together for the last time, as the terms of Chief Judge Patti B. Saris (Chair of the Commission), Judge Charles R. Breyer (Vice Chair), and Commissioner Dabney L. Friedrich will expire at the end of the current congressional session.  Praising her colleagues, Chair Saris remarked, “Commissioner Friedrich and Judge Breyer demonstrated a remarkable commitment to improving federal sentencing policy and brought a wealth of knowledge and experience to the Commission.  I am deeply honored to have worked with them, and all of the commissioners, these past six years to make the guidelines more efficient, effective, and just. The proposed amendments were evidence-based, data-driven, and adopted in a collegial and bipartisan fashion. I thank all the commissioners and staff for their hard work. I am confident that the future Commission and its staff will remain dedicated to this serious and important mission” (full remarks).

In her final statement as Chair, Chief Judge Saris stated, “Next year marks the 30th anniversary of the federal sentencing guidelines. So much bipartisan progress has been made in criminal justice reform. I am hopeful that the 115th Congress will pass meaningful legislation, adopting the Commission’s unanimous recommendations to reduce the statutory mandatory minimum penalties for drug trafficking and to expand the so-called ‘safety valve,’ the mechanism to reduce sentences for non-violent, low level offenders.” The Commission will announce a new Acting Chair at the conclusion of this session of Congress.

The Commission proposed an amendment that could increase the use of alternatives to incarceration for first-time offenders. The Commission remains committed to its work to make the guidelines and federal sentencing fairer and more proportionate while maintaining an ongoing commitment to public safety.  In 2010, the Bureau of Prisons inmate population was 37% over capacity, and now it is around 15%.  Consistent with the ongoing statutory mandate to address overcrowding, the proposed amendment would reduce penalties for first-time offenders and increase the availability of alternatives to incarceration.  In a 2015 study, the Commission found that alternative sentences were imposed in only 13% of federal cases.  In a more recent research report, the Commission further found that offenders with zero criminal history points had the lowest rates of recidivism.

The commissioners also agreed to conduct a two-year study of synthetic drugs, which may result in establishing drug equivalencies for controlled substances not yet referenced at the drug quantity table in §2D1.1. To contribute to the study, commissioners voted to seek comment on offenses involving synthetic cannabinoids, synthetic cathinones (more commonly known as bath salts), and MDMA, also known as Ecstasy.

In a May 2016 report, the Commission’s Tribal Issues Advisory Group (TIAG) identified the treatment of youthful offenders as an area needing further examination. As a result of this study and the Commission’s subsequent research, commissioners voted unanimously to publish a proposed amendment that would exclude juvenile sentences from being considered in the calculation of the defendant’s criminal history score.

Another proposed amendment responds to the Bipartisan Budget Act of 2015. The Commission is considering a proposed amendment that reflects Congress’s changes to the Social Security Act by increasing penalties for social security fraud. In putting forth this proposed amendment, Chair Saris stated, “I would like to acknowledge the important years of work, as well as the continued oversight, led by the House Judiciary Committee, the Senate Committee on Finance and the House Ways and Means Committee to ensure aggressive implementation of these new penalties relating to Social Security fraud.” Other changes relate to the treatment of revocation sentences under §4A1.2(k) and a possible departure provision at §4A1.3 based on an offender’s criminal history category.

Over the past six years, the current Commission took a number of actions to address unwarranted sentencing disparities and to reduce federal prison costs and populations. The Commission reduced disparities in federal cocaine sentencing policy by giving retroactive effect to the guideline changes resulting from the Fair Sentencing Act of 2010, resulting in reduced sentences for 7,748 federal offenders. In 2014 the Commission changed the offense levels associated with the drug quantity table (often referred to as the “Drugs Minus Two” amendment)—as a result, 28,544 prison sentences were reduced, following the review of each case by a federal judge. These actions have contributed to a significant decrease in the federal prison population, leaving more funding for law enforcement, crime prevention and reentry programming, and victim services....

By statute, commissioners are appointed by the President and confirmed by the Senate, and serve six-year terms. At least three of the commissioners must be federal judges and no more than four may belong to the same political party. Other Commissioners include Circuit Judge William H. Pryor, Jr., Commissioner Rachel E. Barkow, Commissioner J. Patricia Wilson Smoot (ex-officio, U.S. Parole Commission), and Commissioner Michelle Morales (ex-officio, U.S. Department of Justice). The Commission must have at least four voting Commissioners for a quorum.

December 10, 2016 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (0)

Sunday, December 04, 2016

Second Circuit hints that sentence reduction might well be justified whenever guideline range is increased "significantly by a loss enhancement"

I am grateful to Harry Sandick for alerting me to this seemingly little (and easily overlooked) opinion handed down by a unanimous Second Circuit panel late last week.  Stephanie Teplin and Harry Sandick discuss the case in this thoughtful blog posting, and here are key passages from their coverage:

In United States v. Algahaim, No. 15-2024(L), the Second Circuit (Newman, Winters, Cabranes) upheld the conviction of two defendants for misconduct involving the Supplemental Nutrition Assistance Program (“SNAP”), but remanded to the district court for consideration of a below-Guidelines sentence.  The Court, in an opinion by Judge Newman, held that the outsize effect of the loss amount enhancement on the defendant’s base offense level — a sentencing scheme for fraud that is “unknown to other sentencing systems” — required the district court to reconsider whether a non-Guidelines sentence was warranted....

Judge Newman acknowledged that it was within the Sentencing Commission’s authority to construct a sentencing scheme that “use[s] loss amount as the predominant determination of the adjusted offense level for monetary offenses.”  However, he observed that “the Commission could have approached monetary offenses quite differently.  For example, it could have started the Guidelines calculation for fraud offenses by selecting a base level that realistically reflected the seriousness of a typical fraud offense and then permitted adjustments up or down to reflect especially large or small amounts of loss.”

The “unusualness” of the Guidelines system, the Court held, can be considered by a sentencing judge under Kimbrough v. United States.  “Where the Commission has assigned a rather low base offense level to a crime and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence.”  The Court did not hold that the sentences were in error, but remanded for the district court’s reconsideration of the sentences....

Judge Newman has long been a skeptic of the Guidelines approach to sentencing.  In this short opinion, he cites the pre-Booker decision in United States v. Lauersen, 348 F.2d 329 (2d Cir. 2003), an opinion he authored at a time when the Guidelines were mandatory, except for downward departures.  Lauersen held that where the cumulative impact of overlapping Guidelines enhancements (in that case, for loss amount and for defrauding a financial institution of more than $1 million) resulted in an overly long sentence, the district court could downwardly depart.... 

In Algahaim, Judge Newman carries this concept forward to the more open-ended sentencing regime given to us by Booker, Gall and Kimbrough.  Many judges have stated that the Guidelines are not helpful in white-collar cases and that their emphasis on loss can lead to results that are “patently unreasonable.”  E.g., United States v. Adelson, 441 F. Supp. 2d 506, 509 (S.D.N.Y. 2006) (Rakoff, J.).  Practitioners have also advocated for shorter sentences in cases involving relatively low loss amounts or where the defendant had no prior record.  See ABA Criminal Justice Section, “A Report on Behalf of the ABA Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes” (November 10, 2014) (last visited December 1, 2016).  To the extent that district judges needed any further encouragement, Judge Newman’s decision lets district judges know that a Guidelines sentence need not be imposed where the “significant effect of the loss enhancement” leads to an unduly long sentence.

Because Judge Jon O. Newman was my very first boss as a lawyer (I served as his law clerk from 1993-94 starting just months after my graduation from law school), I am always partial to his opinions and especially as to his opinions about sentencing issues. And, as regular readers know, I am always partial to judicial opinions that thoughtfully explain whether and when the federal sentencing guidelines should or should not be followed. And so, perhaps my partiality is going to bubble over when I assert that Judge Newman is being especially astute and shrewd in his pro-discretion sentencing work in United States v. Algahaim, in part because the particulars of the loss enhancement in Algahaim are actually not all that major.

Specifically, in Algahaim, the two defendants who were appealing their convictions and sentences were subject to offense-level increases for loss of "only" 10 and 12 points  under USSG § 2B1.1(b)(1).  Though such loss enhancements certainly appear significant when added to a base offense level of 6, in many other fraud cases the loss enhancement under 2B1.1(b) can commonly add 16 or 20 or 24 or even up to 30 points.  Despite those realities, the Second Circuit in Algahaim has now called just a 10-level loss enhancement in a fraud case "significant" and also has said this enhancement is alone large enough to merit serious consideration of a below-guideline sentence.  For that reason, I would now expect lots of astute and shrewd future white-collar defendants throughout New York and elsewhere to be citing to Algahaim to bolster arguments for below-guideline sentences whenever the guideline range is moved up a lot by loss calculations.

December 4, 2016 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (3)

Thursday, December 01, 2016

US Sentencing Commission getting an early start on possible guideline amendment

Traditionally, the US Sentencing Commission holds a meeting in January to proposed amendments to the federal sentencing guidelines for the year. But via email today I received this notice about the USSC getting off to a quicker start this season:

Please join the United States Sentencing Commission for a public meeting on December 9th at 11:30 a.m. (ET) where commissioners may vote to publish proposed amendments to the federal sentencing guidelines.

Amendments proposed during the meeting will stem from this year’s list of policy priorities. The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, in Suite 2-500 (South Lobby). Please note that if you cannot attend in person, it will be broadcast live.

The agenda is as follows:

  • Vote to Adopt August 2016 Meeting Minutes
  • Report from the Chair
  • Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment

December 1, 2016 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)