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)

Monday, November 28, 2016

Guest posting from Prof Carissa Hessick on SCOTUS argument: "Beckles and the Continued Complexity of Post-Booker Federal Sentencing"

Image (1)I am pleased to be able to reprint this original commentary concerning today's SCOTUS oral argument from LawProf Carissa Hessick:

Earlier today the Supreme Court heard argument in Beckles v. United States.  Beckles raises two questions: (1) whether the now-advisory Federal Sentencing Guidelines are subject to vagueness challenges under the Due Process Clause, and (2) whether, assuming the Guidelines are subject to vagueness challenge, a ruling that a Guideline is unconstitutionally vague is retroactive under the Teague framework.  The Beckles case and today’s argument illustrate how complicated federal sentencing has become since the Supreme Court decided to treat the Federal Sentencing Guidelines as advisory in Booker v. United States.

In the decade since Booker was decided, the Supreme Court has clarified that, although the Federal Sentencing Guidelines are no longer mandatory, they are also not entirely voluntary.  Deputy Solicitor General Michael Dreeben did a fantastic job in his argument explaining the middle path that the Court has carved for the Guidelines since Booker.  He not only described the anchoring effect of the Guidelines, but he also noted that the Court has adopted procedural mechanisms “designed to reinforce the primacy of the Guidelines.”  The current advisory system, according to Dreeben, “injects law into the sentencing process.”

As the Beckles argument illustrates, the middle path that the Court has carved is complicated.  The Court continues to struggle with how to regulate an advisory system in light of the fact that the purely discretionary system that the Federal Sentencing Guidelines replaced was essentially unregulated.  Indeed, counsel for Beckles spent much of her argument fending off questions by various Justices about how a Guideline could be unconstitutionally vague if a purely discretionary system is permissible under the Constitution. Justices Alito, Breyer, Kennedy, and Chief Justice Roberts all asked questions to this effect.  Notably, later questions by Justice Breyer and the Chief Justice appeared to accept that a purely discretionary system might be subject to different rules than an advisory system.

The complexity of the middle path was on full display in today’s argument in part because the United States relied on the complexity of that path to take what Justice Kennedy and a court-appointed amicus characterized as inconsistent positions.  The United States argued that the advisory Guidelines are subject to vagueness challenges because of the important role that they continue to play in the post-Booker world.  But the government argued that the advisory status of the Guidelines should prevent the Court from making any vagueness ruling retroactive.  The government distinguished this case from a recent juvenile life-without-parole case, saying that juvenile LWOP cases require a particular finding in order for a defendant to be eligible for a life-without-parole sentence.  In contrast, according to the government, the Guidelines affect only the likelihood that a defendant will receive a particular sentence.  The government relied on the distinction between likelihood of a sentence and eligibility for a sentence as the reason it took different positions on the vagueness question and the retroactivity question. And while Justice Sotomayor pressed the government on this distinction, none of the attorneys or the Justices mentioned an important fact about this case: When Beckles was sentenced in a Florida district court, the prevailing law in the Eleventh Circuit actually required such a finding. (Because of the amount of time taken up by questions about vagueness, petitioner’s counsel addressed the likelihood/eligibility argument only in the single minute she had remaining for rebuttal. The argument was made in an amicus that Doug and I co-authored with Leah Litman, which is available here.)

Other odd aspects of the Court’s post-Booker jurisprudence were also on display during the Beckles argument.  Chief Justice Roberts and Justice Alito both raised the question whether the Court’s recent decisions about the quasi-legal status of the advisory Guidelines should endure in the face of changing sentencing patterns in the district courts.  And Justice Breyer, who has often served as a champion for the U.S. Sentencing Commission, raised the possibility that the courts should be more indulgent of vague sentencing guidelines than vague statutes because the Commission is in a better position than Congress to refine the law.

Perhaps because this area of the law is so complex, both Justice Ginsburg and Justice Kennedy appeared to cast about for an easy way to dispose of this case.  At one point Justice Ginsburg said as much: “I thought . . . that if we decide the first issue, . . . the case is over.  But -- so I was thinking, well, we could decide that issue and not reach either vagueness or retroactivity.”  Much to his credit, Deputy Solicitor General Dreeben discouraged the Court from taking that path, even though it would have meant a victory for the Government.  Dreeben noted that there are many cases that raise the vagueness and the retroactivity questions that are currently pending in the lower courts.  And he made an institutional appeal to the Justices to resolve the retroactivity issue even if they could decide this case based on some commentary in the Guidelines.  I admire Dreeben for making this appeal to the Justices.  But I don’t think that his appeal went far enough. There are a number of defendants in the Eleventh Circuit who have viable vagueness claims that are not claiming retroactivity.  Because the Eleventh Circuit refused to recognize any vagueness challenges to the Guidelines, the Court should also rule on the vagueness issue even if it determines that its ruling will not be retroactive.

Although I was not at the argument this morning, it is hard to read the transcript of the Beckles argument and think that the defendant is likely to prevail. Only Justice Sotomayor seemed to be asking friendly questions of petitioner’s counsel, and only she seemed to resist the Government’s likelihood/eligibility argument.

But even if Beckles does not prevail, we may see another vagueness challenge to the Guidelines in the not-so-distant future.  For one thing, Dreeben made clear in today’s argument that the Government has not taken a position on retroactivity for pre-Booker mandatory sentences.  So if Beckles loses on the retroactivity question, then the courts of appeals will have to decide retroactivity in those pre-Booker cases, and if the courts split on that question, the Supreme Court may need to take another case.  For another, the Court has granted cert in another statutory vagueness case, Lynch v. Dimaya.  The statute at issue in Dimaya, 18 U.S.C. § 16(b), has been incorporated into a Guideline, U.S.S.G. § 2L1.2(b)(1)(C).  So if the Court decides that § 16(b) is unconstitutionally vague in Dimaya, and if the Court does not answer the vagueness question in Beckles, then the Court may need to take another Guidelines vagueness case.

November 28, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (6)

Sunday, November 13, 2016

"Hard Bargains: The Coercive Power of Drug Laws in Federal Court"

11_HardBargainsThe title of this post is the title of this soon-to-be released book by Mona Lynch that is now at the very top of my holiday wish/reading list. Here is the publisher's description of the book:

The convergence of tough-on-crime politics, stiffer sentencing laws, and jurisdictional expansion in the 1970s and 1980s increased the powers of federal prosecutors in unprecedented ways.  In Hard Bargains, social psychologist Mona Lynch investigates the increased power of these prosecutors in our age of mass incarceration.  Lynch documents how prosecutors use punitive federal drug laws to coerce guilty pleas and obtain long prison sentences for defendants — particularly those who are African American — and exposes deep injustices in the federal courts.

As a result of the War on Drugs, the number of drug cases prosecuted each year in federal courts has increased fivefold since 1980.  Lynch goes behind the scenes in three federal court districts and finds that federal prosecutors have considerable discretion in adjudicating these cases.  Federal drug laws are wielded differently in each district, but with such force to overwhelm defendants’ ability to assert their rights.  For drug defendants with prior convictions, the stakes are even higher since prosecutors can file charges that incur lengthy prison sentences — including life in prison without parole.

Through extensive field research, Lynch finds that prosecutors frequently use the threat of extremely severe sentences to compel defendants to plead guilty rather than go to trial and risk much harsher punishment.  Lynch also shows that the highly discretionary ways in which federal prosecutors work with law enforcement have led to significant racial disparities in federal courts.  For instance, most federal charges for crack cocaine offenses are brought against African Americans even though whites are more likely to use crack.  In addition, Latinos are increasingly entering the federal system as a result of aggressive immigration crackdowns that also target illicit drugs.

Hard Bargains provides an incisive and revealing look at how legal reforms over the last five decades have shifted excessive authority to federal prosecutors, resulting in the erosion of defendants’ rights and extreme sentences for those convicted.  Lynch proposes a broad overhaul of the federal criminal justice system to restore the balance of power and retreat from the punitive indulgences of the War on Drugs.

November 13, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Tuesday, November 08, 2016

Is the likely federal sentencing guideline range for "Bridgegate" defendants convicted last week at least 3 to 4 years in federal prison?

As noted in this prior post, late last week a federal jury returned guilty verdicts against Bridget Anne Kelly, the former deputy chief of staff to NJ Gov Chris Christie, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey on seven federal criminal charges stemming from the so-called "Bridgegate" scandal.  This Wikipedia page provides lots of background on the scandal, and this lengthy New York Times article about the convictions provides these hints about the federal sentencing issues to now be debated as a February sentencing for Ms. Kelly and Mr. Baroni looms:

A federal jury convicted two former allies of Gov. Chris Christie on Friday of all charges stemming from a bizarre scheme to close access lanes at the George Washington Bridge to punish a New Jersey mayor who declined to endorse the governor’s re-election.  Though only the two defendants, Bridget Anne Kelly and Bill Baroni, were tried in the so-called Bridgegate case, the scandal surrounding the lane closings in September 2013 left Mr. Christie deeply wounded....

David Wildstein, who was installed as the governor’s enforcer at the Port Authority of New York and New Jersey, which operates the bridge, pleaded guilty to orchestrating the lane closings and became the prosecution’s chief witness....

Facing about 50 reporters and television cameras outside the federal courthouse here on Friday, the United States attorney for New Jersey, Paul J. Fishman, said that his office brought charges against only the people it believed a jury would find guilty beyond a reasonable doubt.  There was substantial documentary evidence, he said, to corroborate Mr. Wildstein’s testimony about Ms. Kelly and Mr. Baroni, once Mr. Christie’s top staff appointee at the Port Authority....

The convictions carry a maximum sentence of 20 years in prison, but under federal guidelines, Ms. Kelly and Mr. Baroni are likely to get far less time.  Mr. Fishman said Friday that under federal guidelines, Mr. Wildstein would be sentenced to 20 to 27 months in prison, but that he was likely to get “credit” from the judge for his cooperation. Prosecutors were likely to recommend longer terms for Mr. Baroni and Ms. Kelly, Mr. Fishman said, because they did not accept responsibility for their crimes and because prosecutors believe that they did not testify truthfully.

Judge Susan D. Wigenton set sentencing for Feb. 21.

I found at this link a copy of the plea agreement in which Mr. Wildstein agreed to plead guilty to two counts and to have his guideline calculation add up to an offense level 16 (including a three-point downward adjustment for acceptance of responsibility).  Such an offense level for a first offender accounts for his applicable guideline range being set at 21-27 months before he gets any further cooperation credit for his substantial assistance in the prosecution of Ms. Kelly and Mr. Baroni.  Assuming the same basic guideline calculations for Mr. Baroni and Ms. Kelly, but now without any benefit for acceptance of responsibility AND with a two-point enhancement for obstruction of justice based on testifying falsely, it seem they are facing an offense level of 21 (at least), and thus looking at an advisory guideline range of 37-46 months (at the lowest).

I can certainly imagine all sorts of arguments that could possibly be made by federal prosecutors to try to drive up the applicable guideline range further, but I suspect that USA Paul Fishman and his line prosecutors will be content to argue for a federal prison sentence in the range of three to four years.  I would also expect that defense attorneys for Ms. Kelly and Mr. Baroni will look for ways to contest any guideline range enhancement and will also advocate forcefully under the provisions of 18 USC 3553(a) for a sentence below whatever the guideline range is calculated to be. 

Because I am going to be turning this real case into a real-world teaching exercise in my sentencing class, I would be grateful to have informed (or even uniformed) folks provide any insights or ideas about how they expect the sentencing for Ms. Kelly and Mr. Baroni and Mr. Wildstein to play out in the week ahead.

Prior related post:

November 8, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5)

Friday, November 04, 2016

"Bridgegate" now a federal sentencing story after two former New Jersey officials convicted on all federal counts after lengthy jury deliberations

As regular readers know, I tend to avoid discussing high-profile criminal prosecutions unless and until they become interesting or important sentencing stories.  And then, perhaps problematically, once they become notable sentencing stories, I tend to discuss the cases too much.  These tendencies are going to be on full display now that the long-running so-called "Bridgegate" scandal this morning because a great sentencing story. This CNN piece explains, while concluding with an accurate and ridiculous sentencing point:

Two former officials linked to New Jersey Gov. Chris Christie's office were found guilty on all charges Friday in connection with the closure of lanes in 2013 on the George Washington Bridge in an act of alleged political retribution, the fallout for which has come to be known as Bridgegate. The news comes after nearly five days of deliberations from the jury.

Bridget Anne Kelly, the former deputy chief of staff to Christie, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey, both faced seven counts of various charges including conspiracy, fraud, and civil rights deprivation.

The verdict is another setback in Christie's political career, following a controversy that spans nearly three years and put a significant dent in the Garden State Republican's presidential ambitions. Christie is heading planning behind Republican nominee Donald Trump's transition if he wins the presidency. CNN has reached out to the Trump campaign for comment and not yet gotten a response.

Prosecutors allege that the lane closures on the George Washington Bridge were part of a deliberate effort to punish the Democratic mayor of Fort Lee, New Jersey, who did not endorse the Republican incumbent Christie in his 2013 re-election bid.  Emails and text messages released in January of 2014 form the basis of the charges. In one particularly damning email, Kelly told former Port Authority official David Wildstein, "Time for some traffic problems in Fort Lee."  Kelly later said her messages contained "sarcasm and humor," and she claims that she had told Christie about traffic problems resulting from a study a day prior to sending the email....

Kelly and Baroni each face a maximum sentence of 86 years, according to Paul Fishman, the federal prosecutor in the case.

Though I am disinclined to accuse federal prosecutors of "overcharging" unless and until I know all the facts, the simple fact that the conviction on all counts here even presents the possibility of a sentence of 86 years in prison leads me to be more than a bit suspicious of how the feds approached this case. That concern aside, I feel pretty certain predicting (1) that now-convicted federal felons Bridget Anne Kelly and Bill Baroni are unlikely to be sentences to more than a few years in prison, and (2) that federal prosecutors are going to be inclined to ask for a pretty lengthy prison sentence for these two because they had the temerity to contest their guilt and put the feds through the bother of a lengthy trial, and (3) that a low-profile, high-impact legal question for Kelly and Baroni is whether they will be given bail pending what could be very lengthy appeals of their multiple convictions.

I have not followed this case closely enough to even begin to figure out what the advisory guideline calculations might look like in these cases, but I would love to hear from some informed folks about what they think Bridget Anne Kelly and Bill Baroni are now facing, formally or informally, as this long-running scandal becomes a fascinating federal sentencing case.

November 4, 2016 in Campaign 2016 and sentencing issues, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (10)

Tuesday, November 01, 2016

Two new Washington Post commentaries making federal sentencin reform sound (way too) easy

The "In Theory" section of the Washington Post now has posted two notable new commentaries about prison reform.  Here are the authors, full titles and links:

Here is how the second of these two commentaries gets started:

When our next president enters the Oval Office, she or he will be faced with two questions: First, how to make a mark as president ? Second, how to break through gridlock in Congress?

Prioritizing reducing our prison population is one way to achieve both goals. Most Republicans and Democrats agree: Mass incarceration devastates communities of color and wastes money.  Even Hillary Clinton and Paul Ryan see eye-to-eye. Committing to such reform in the first 100 days would make a lasting and imperative change.

Regular readers will not be surprised to know I support the spirit and much of the substance of these two commentaries.  But the "can-do" talk and the direct or indirect suggestion that this kind of reform should be "easy for the next president" really seem to me to miss the mark.  After all, Prez Obama and House Speaker Paul Ryan and current Senate Judiciary Chair Chuck Grassley all right now largely "see eye-to-eye" on the importance of "reducing our prison population."  And yet, despite diligent work by lots and lots of folks on the federal reform front for more than two years now, Congress has so far been unable to get any kind of significant criminal justice reform bill to the desk of Prez Obama. 

Though I know the 2016 election is certain to disrupt the existing political status quo, I do not know if anything that happens at the voting booth next week can make it that much easier for the folks inside the Beltway to find their way to turn all sorts of talk into actual statutory reforms.  I sure hope advocates like those who authored these commentaries keep talking up the importance of making criminal justice reform a priority in 2017.  But, as I have been saying for too many years already, I am not counting any federal sentencing reform chickens until they are fully hatched.

November 1, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Tuesday, October 25, 2016

Latest USSC data suggest prison savings now exceeding $2 billion from "drugs -2" guideline amendment retroactivity

The US Sentencing Commission's website has this new data document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated October 2016, provides updated "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through September 30, 2016, and for which court documentation was received, coded, and edited at the Commission by October 20, 2016."

The official data in the report indicate that, thanks to the USSC's decision to make Amendment 782, the so-called "drugs -2" guideline amendment, retroactive, now 29,391 federal prisoners have had their federal drug prison sentences reduced by an average of over two years. So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers around $2.1 billion dollars.

As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing evidence that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and taxpayer costs of the federal government. Perhaps more importantly, especially as federal statutory sentencing reforms remained stalled in Congress and as Prez Obama continues to be relatively cautious in his use of his clemency power, this data provide still more evidence that the work of the US Sentencing Commission in particular, and of the federal judiciary in general, remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.

October 25, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (27)

Monday, October 17, 2016

"How the Sentencing Commission Does and Does Not Matter in Beckles v. United States"

The title of this post is the title of this timely new paper available via SSRN authored by Leah Litman and Luke Beasley. Here is the abstract:

This Essay considers how significant the differences between the Armed Career Criminal Act and the Sentencing Guidelines are to one question the Supreme Court is poised to address in Beckles v. United States -- namely, whether a rule invalidating the so-called "residual clause" in the Sentencing Guidelines applies retroactively to cases on collateral review.  This Essay collects evidence from resentencings that have occurred after courts have found the Guidelines' residual clause invalid.  These resentencings have resulted in defendants receiving significantly less prison time. 

The extent to which a rule invalidating the Guidelines' residual clause affects defendants' sentences -- often significantly -- justifies revisiting defendants' sentences because whatever finality interests exist in the defendants' sentences are outweighed by the effects that a rule invalidating the Guidelines' residual clause has on the amount of prison time defendants serve.  The Supreme Court should also not hesitate to make a rule invalidating the Guideline retroactive because the Sentencing Commission decided not to make retroactive an amendment deleting the Guideline's residual clause.  The Commission never investigated how difficult it would be to make that amendment retroactive.

A few of many related prior posts and related materials:

October 17, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (1)

Saturday, October 15, 2016

"Cost-Benefit Analysis and Retroactivity: The brief for respondent in Beckles v. U.S."

The title of this is the title of this timely and astute New Jersey Law Journal commentary authored by (former federal prosecutor) Steven Sanders. I recommend the piece in full, and here are excerpts from its beginning and ending:

In late June, the Supreme Court granted certiorari in Beckles v. United States, 136 S. Ct. 2510 (2016).  Beckles actually raises three questions, but only two of them are pertinent here: (1) is the "residual clause" of the U.S. Sentencing Guidelines' career offender provision void for vagueness under Johnson v. United States, 135 S.Ct. 2551 (2014); and (2) can a defendant whose Guidelines sentence became final before Johnson issued nonetheless invoke Johnson's new rule in a motion filed under 28 U.S.C. §2255.  In its recently filed merits brief, the government argues that the answer to question (1) is "yes," but that Beckles and thousands like him have no legal remedy because the answer to question (2) is "no."

The government's non-retroactivity argument in Beckles represents a total reversal of the position it took before the en banc Eleventh Circuit only one month before Johnson issued. And that reversal seems to stem from the government's concern about the costs the justice system would incur from conducting resentencings for prisoners who very likely would receive lower sentences were they afforded a remedy.  The government's belief that the costs of dispensing justice outweigh the benefits (i.e., less prison time for thousands of people the government acknowledges have been over-sentenced) is eye-opening, to say the least.  That it has broadcast that belief in a Supreme Court brief is downright disturbing....

In sum, the government's retroactivity position in Beckles seems more like a belated attempt at damage control than a principled effort to apply the law consistently across a set of similarly situated defendants.  The government would do well to heed Solicitor General Frederick Lehmann's powerful observation — now inscribed on the walls of the Department of Justice — that "[t]he United States wins its point whenever justice is done its citizens in the courts." See Brady v. Maryland, 373 U.S. 83, 87 & n.2 (1963).

A few of many related prior posts and related materials:

October 15, 2016 in Advisory Sentencing Guidelines, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Friday, September 23, 2016

Great new US Sentencing Commission report on "simple possession" federal drug cases raises array of hard follow-up questions

Simplepossession_coverI find crime and punishment data so interesting and so important in large part because (1) even seemingly basic and simple data often can only be fully understood after one takes time to examine closely the backstories that surround that data, and (2) only if and when a researcher or advocate has deep understanding of data can that person even start to appreciate all the challenging policy and practical questions that important data implicate.  These realities are on full display in the context of an interesting and important new report released this week by the US Sentencing Commission titled "Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice System." Here is the introduction to the short report, which explains the notable backstories concerning a dramatic recent change in the number of federal "simple possession" cases:

The simple possession of illegal drugs is a criminal offense under federal law and in many state jurisdictions. The offense occurs “when someone has on his or her person, or available for his or her use, a small amount of an illegal substance for the purpose of consuming or using it but without the intent to sell or give it to anyone else.”

Simple drug possession is a misdemeanor under federal law which provides that an offender may be sentenced to a term of imprisonment of not more than one year, fined a minimum of $1,000, or both. However, if an offender is convicted of simple possession after a prior drug related offense has become final, the offender can be charged with a felony simple possession offense.

The number of federal offenders whose most serious offense was simple drug possession increased nearly 400 percent during the six-year period between fiscal years 2008 and 2013. A change of this magnitude over a relatively short period of time triggered further investigation into these cases using data on offender and offense characteristics routinely collected by the United States Sentencing Commission (“the Commission”), as well as additional data collected specifically for this project.

At first, this dramatic increase in the number of offenders sentenced for the simple possession of drugs seems to suggest a substantially increased focus on this offense by federal law enforcement personnel. Further analysis, however, does not support such a conclusion. A closer inspection of the data demonstrates that this increase is almost entirely attributable to a single drug type — marijuana — and to offenders who were arrested at or near the U.S./Mexico border (a group almost entirely composed of offenders from the District of Arizona). For simple possession of marijuana offenders arrested at locations other than the U.S./Mexico border, the median quantity of marijuana involved in the offense was 5.2 grams (0.2 ounces).  In contrast, the offense conduct of simple possession of marijuana offenders arrested at that border involved a median quantity of 22,000 grams (48.5 pounds or 776.0 ounces) — a quantity that appears in excess of a personal use quantity.

In other words, the USSC noticed data showing a huge increase in the charging of misdemeanor federal drug crimes, which at first might suggest a curious new commitment by federal prosecutors to pursue low-level drug offenders. But, upon closer examination, the USSC discovers that what is really going on is that a whole lot of (low-level?) drug traffickers (mules?) found with huge quantities of marijuana are having their cases prosecuted through "simple possession" charges even though that label hardly seems like a factually fitting description of their drug crimes.

I am extraordinarily pleased to see the USSC detailing and explaining this interesting new data trend, and I am extraordinarily interested to hear from readers as to whether they think federal prosecutors in border regions ought to be praised or pilloried for their new misdemeanor approach to dealing with marijuana offenders arrested at the border with an average of 50 pounds of mary jane. This USSC report not only documents one tangible way that state marijuana reforms would seem to be having a profound impact on how the federal government is now waging the so-called "war on weed," but it also prompts a lot of hard questions about whether the new behaviors by federal drug prosecutors are appropriate given the absence of any formal changes to federal drug laws.

September 23, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

Wednesday, September 21, 2016

"Assessing Time Served" and the deeply under-theorized problems of criminal history

Patrick Woods has this effective and important new article now available via SSRN titled "Assessing Time Served."  Here is the abstract (which will be followed by a few comments I have about this topic):

This article examines the utility of a new way of determining when increased punishment should be imposed pursuant to “three strikes” laws or other recidivist enhancements. In the past two years, Congress and the United States Sentencing Commission have each considered criminal justice reform measures that would use the length of time an offender spent incarcerated as a proxy for the seriousness of his earlier criminal conduct.  While this reform seems sound at first glance, the article ultimately concludes that its incorporation into current state and federal sentencing laws must be done carefully, if at all, and that doing so now may be premature.

The article compares this new “time served” approach with the current methods of determining the severity of the punishment imposed upon an offender for his prior crime.  Current federal and state laws assess the seriousness of prior punishment using either the maximum statutory penalty — irrespective of the real sentence — or the sentence announced in court by the judge — even if only a small fraction of that sentence was actually served before the defendant was released.  Compared with these methods, determining the severity of a prior punishment using a “time served” measure seems to be an improvement.

Real problems, however, lurk just below the surface.  The article discusses in detail significant challenges with records gathering, defining the term of incarceration, and using the metric in a way that is consistent with due process guarantees.  It suggests how the metric might be employed to minimize each of these concerns, but also concludes that the condition of state and local incarceration records may make use of the metric in the near future impracticable.

This article effectively highlights some of the practical challenges of using time actually served in prison as a metric for recidivist sentencing enhancements, and these practical challenges must be considered against the backdrop of the host of other practical difficulties federal courts have experienced in using other metrics in application of the Armed Career Criminal Act and guideline assessments of criminal history.  Moreover, as the title of this post hints,  I think modern criminal justice theorists and scholars ought to be working a lot more on what the author calls the "philosophical underpinnings" of recidivist sentencing enhancements. (The author usefully brackets this issue because his fundamental project in this article is not conceptual.)  In many ways, I think the "war on drug" has had its biggest impact on modern incarceration through such recidivist enhancements, and I have long thought that the "philosophical underpinnings" of such enhancements can and should be greatly influenced by the types (and especially the motives) of prior offenses.

September 21, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Thursday, September 15, 2016

Grover Norquist and Wade Henderson say now is the time for federal statutory sentencing reform

This new National Review commentary authored by the notable pairing of Grover Norquist and Wade Henderson makes the case for having Congress finally getting sentencing reform to the desk of Prez Obama now.  The piece is headlined "No Better Time Than Now to Pass Justice Reform," and here are excerpts:

Picture this: a legislative reform initiative that has garnered more than 70 percent approval from both Democrats and Republicans in state after state. Imagine a package of reform bills that has brought together elected officials from the left and right and passed through House committee with near unanimous support. Now consider that the speaker of the House is the biggest champion of these bills.

What issue has brought together both ends of Pennsylvania Avenue and has civil-rights groups working with top prosecutors and law enforcement? Justice reform. And given all this success, you would say these policies have every chance of becoming law, right? It’s not that simple, but it should be.

In the months since bipartisan-backed sentencing- and prison-reform legislation was introduced in the House of Representatives, Congress managed to name about ten post offices, revised coastal-barrier boundaries, ordered the Mint to create commemorative coins, and adopted bison as the national mammal of the United States.

In the states during that time, Minnesota introduced and passed the most significant reforms to its drug laws in 30 years. These bills reduced mandatory minimums for low-level drug crimes and devoted greater resources to treatment instead of incarceration. Iowa took similar steps. Maryland repealed mandatory minimum sentences for nonviolent drug offenses. Even states with high incarceration rates took action. Oklahoma and Louisiana eliminated employment barriers for those with criminal records. And Kentucky passed one of the most aggressive expungement bills in the country that seals criminal records for certain offenses.

It’s time for Congress to act on justice reform. The states have proven that treatment and rehabilitation in lieu of incarceration can often provide better outcomes. Unnecessarily harsh sentences for nonviolent offenders do not make better citizens; they lead them to commit more offenses. We also know that the easier it is for someone who leaves incarceration to get a job, improve his education, and support his family, the better shot he has at turning away from crime altogether.

In an election year, real reforms can easily get jettisoned for campaign-trail antics. Yet we know justice reform makes for good politics as well as good policy. In polling in battleground states such as Florida, Nevada, Ohio, and North Carolina, support for reforms that would reduce mandatory minimum sentences and focus resources on rehabilitation ranges from the low 70s to the high 80s for both Republicans and Democrats. These numbers show that the risk lies not in supporting these reforms, but in opposing them.

When one in three American adults has a record, these issues are now affecting every corner of society. That explains why the diversity of support for justice reform spans the breadth and depth of our political ideologies. Whether it’s about redemption and second chances, as is the case for religious groups such as the Southern Baptist Convention, or about reducing the cost of an ineffective system, as is the case for Americans for Tax Reform and many other conservatives, millions of Americans from all different perspectives are getting behind this movement....

Our justice system should be a part of the solution to crime and its root causes. We can do better than using a one-size-fits-all sentencing regime that lumps nonviolent offenders with violent ones. And when some estimates have re-arrest rates for ex-offenders at 65 percent within three years, we cannot afford to continue the status quo. The reforms on the table would improve outcomes while ensuring that public safety is a top priority.

The best chance we have of passing this legislation is now. The political stars are aligned, and support for reform is at a zenith. We need our elected officials to seize this moment and pass legislation that saves money and makes us safer. Congress must not squander this opportunity.

September 15, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Tuesday, August 30, 2016

Split en banc Seventh Circuit ruling, previewing coming Beckles debate before SCOTUS, applies Johnson to career-offender guidelines

As regular readers may recall (and as I like to remind everyone), in this post right after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career-offender guideline of the US Sentencing Guidelines.  As I have noted before, the Justice Department has consistently conceded Johnson-based constitutional problems with that guideline, even though there was some prior rulings in some circuits that the federal guidelines could not be attacked based on traditional void-for-vagueness doctrines. 

In the last year, most of the circuit courts, perhaps moved a lot by DOJ 's view, have come to rule that vagueness challenges to the guidelines are proper and have concluded that there are Johnson-based constitutional problems with sentences based on the old career-offender guideline.  But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  

As I have previously noted, I consider the ruling Matchett suspect; but an amicus brief I helped put together urging en banc review in Matchett has not led to its reconsideration.  As blogged here this past June, we now have the ultimate judicial authority on this issue poised to weigh in: the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whether Johnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.  Continuing my friendly ways in this setting, I had the honor and pleasure to work with Carissa Hessick and Leah Litman on this new SCOTUS Beckles amicus brief explaining why we think the US Sentencing Guidelines are subject to vagueness challenges and why any ruling that a guideline is unconstitutionally vague should be made retroactive.

Though folks interested in a full understanding of the Beckles case might read all the extant SCOTUS briefing, folks interested in understanding the substantive highlights and the basic arguments on both sides of this intricate and important story can now just turn to the split en banc ruling of the Seventh Circuit yesterday in US v. Hurlburt, No. 14-3611 (7th Cir. Aug. 29, 2016) (available here).  Here are two key paragraphs from the start of the majority opinion (per Judge Sykes) in Hurlburt:

The residual clause in § 4B1.2(a)(2) mirrors the residual clause in the Armed Career Criminal Act (“ACCA”), which steeply increases the minimum and maximum penalties for § 922(g) violations. 18 U.S.C. § 924(e)(2)(B).  One year ago the Supreme Court invalidated the ACCA’s residual clause as unconstitutionally vague.  Johnson v. United States, 135 S. Ct. 2551, 2563 (2015).  The question here is whether Johnson’s holding applies to the parallel residual clause in the career offender guideline.  An emerging consensus of the circuits holds that it does. See infra pp. 16–17.

In this circuit, however, vagueness challenges to the Sentencing Guidelines are categorically foreclosed. Circuit precedent — namely, United States v. Tichenor, 683 F.3d 358, 364–65 (7th Cir. 2012) — holds that the Guidelines are not susceptible to challenge on vagueness grounds.  But Tichenor was decided before Johnson and Peugh v. United States, 133 S. Ct. 2072 (2013), which have fatally undermined its reasoning.  Accordingly, we now overrule Tichenor.  Applying Johnson, we join the increasing majority of our sister circuits in holding that the residual clause in § 4B1.2(a)(2) is unconstitutionally vague.

And here are a few key paragraphs from the dissenting opinion (per Judge Hamilton) in Hurlburt:

The doctrinal foundation of the majority opinion is inconsistent with the overall sweep of Supreme Court decisions following United States v. Booker, 543 U.S. 220 (2005), which held the Guidelines advisory as the remedy for the Sixth Amendment problems with mandatory sentencing rules that require judicial fact‐finding. Since Booker, the Supreme Court has been trying to maintain a delicate balance, recognizing that the difference between “binding law” and “advice” depends on the different standards of appellate review. See Gall, 552 U.S. at 50–51....

If the Supreme Court extends the rationale of Peugh, as the majority does here, and embraces wholeheartedly the concept that the Guidelines are like laws, that result would be difficult to reconcile with the Booker remedy, which spared the Guidelines from Sixth Amendment challenges by making them advisory. The delicate doctrinal balance the Court has tried to maintain since Booker would be threatened by extending vagueness jurisprudence to the advisory Guidelines.

August 30, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

Monday, August 29, 2016

Fourth Circuit ruling highlights circuit split (and general insanity) regarding loss calculations and guideline sentencing in securities fraud case

The Fourth Circuit on Friday handed down a lengthy opinion in US v. Rand, No. 15-4322 (4th Cir. Aug. 26, 2016) (available here), affirming the convictions and sentence of a white-collar defendant "following his involvement in earnings mismanagement and improper accounting transactions while acting as chief accounting officer at Beazer Homes USA, Inc." The sentencing discussion in Rand occupies only six pages of a 35+ page opinion, but those pages include elements of what I see as so very insane about loss calculations and guideline sentencing in security fraud cases.  These background paragraphs from the Rand opinion provide the foundation for my insanity complaint:

U.S. Sentencing Guideline § 2B1.1 sets the offense level for certain fraud offenses and requires an increase based on the loss caused by the offense conduct, in accordance with a table in § 2B1.1(b)(1). An application note instructs that “in a case involving the fraudulent inflation or deflation in the value of publicly traded security,” loss should be calculated based on how the price of a security changed, “after the fraud was disclosed to the market.” U.S.S.G. § 2B1.1 Application Note 3(F)(ix).

At sentencing, the parties debated which of Beazer’s three public disclosures qualified as the date on which the “fraud was disclosed to the market”.... The court determined that the fraud was disclosed in June and August and that the loss to investors following those dates was $135 million. Accordingly, the district court calculated an offense level of 51 for a guidelines range of life imprisonment, capped by the statutory maximum.  The parties agreed that if the October date were used, the resulting loss would be $0. Had the district court used the loss amount following the October disclosure, Rand’s offense level would have been 19, with a range of 30 to 37 months.  The court ultimately varied downward from the guidelines range of life imprisonment and imposed a ten-year sentence.

In other words, it seems here that the facts surrounding the defendant's criminal behavior is not in serious dispute for sentencing purposes, but there is a big legal dispute over how the federal sentencing guidelines take stock of the "loss" cause by this behavior. And, remarkably, for calculating the advisory guidelines sentencing range, one legal take on this issue calls for the defendant to get an LWOP+ sentence, but the other legal take calls for the defendant to get no more than about 3 years' imprisonment. I do not think it is insane for me to assert that it is insane for so radically different guideline prison recommendations to hinge on a technical legal dispute over loss calculations.

Adding to the insanity, at least in my view, is the Fourth Circuit panel's subsequent explanation for why it is disinclined to follow the Second and Fifth Circuits in having the US Supreme Court's "Dura [civil case] loss-causation principles apply to criminal securities fraud cases."  In short form, the Fourth Circuit panel agrees with "the Third, Sixth, and Ninth Circuits [which] have declined to apply Dura in the context of criminal sentencing" largely because concerns about mis-attributing "loss" are distinct in the civil and criminal contexts.  I fully agree that concerns about mis-attributing loss are distinct in the civil and criminal contexts, but it seems backward to make it much easier to attribute loss (as does the Fourth Circuit and other circuits refusing to adopt Dura loss-causation principles) in criminal cases where life and liberty (and not just property) are at stake.

In any event, and perhaps quite wisely, in the Rand case as noted in the case excerpt, the sentencing judge ultimately did not follow the guidelines range of life imprisonment when sentencing the defendant.  The defendant he was sentenced "only" to 120 months' imprisonment, which obviously constitutes a huge downward variance from the guidelines' LWOP recommendation (though also, of course, constitutes a huge upward variance if the Rand’s offense level really should have been 19 with a range of 30 to 37 months' imprisonment).  In this way, I suppose, the sentencing judge in Rand did what he could to stop the guidelines insanity.

August 29, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Does a weekend tweet from House Speaker Paul Ryan suggest that federal statutory sentencing reform still has a chance in the months ahead?

The question in the title of this post is prompted by this weekend tweet from the account of House Speaker Paul Ryan, which includes a clip of a pro-sentencing reform speech that Speaker Ryan gave earlier this year and has this notable new sentence: "There are over 2 million people in our prisons, and a lot of them are just people who made a mistake."  Ever eager to hope that federal statutory sentencing reform is not completely dead for the current year, I want to consider this tweet a positive development to that end.

That said, I learned of this tweet from this Breitbart posting, and a good bit of the posting highlights why I probably should not really get too excited or hopeful in the wake of this tweet:

In July, Ryan said he believed that Congress “overcompensated” in the 1990s by imposing tough jail sentences to combating a decades-long crime wave and a drug epidemic that destroyed communities and lives across the country. He’s now backing legislation that would slash sentences for convicted drug traffickers.

“In the 1990s, to your first point, I think government, both Republicans and Democrats, overcompensated on our criminal code. And we went too far and there are disparities — crack cocaine vs. powder cocaine — there are clear disparities and more importantly, I think that we’ve learned there are better ways of dealing with some of these problems than locking up somebody for 20 or 30 years,” Ryan told NRP host Steve Inskeep. “You end up ruining their lives, ruining their families, hurting communities, and then when they try to re-enter into society, they’re destitute.”

“So I really think there are better methods of dealing with these problems and I think that is part of criminal justice reform. I think that’s something I put out in the poverty plan that I first authored three years ago. So we intend on bringing these bills up in September,” he added.

Conservative critics have labeled the so-called reform efforts as “jailbreak” bills. For example, the Sentencing Reform and Corrections Act of 2015 (SRCA) would reduce penalties for drug traffickers profiting from poisoning communities. Neither would these drug-related penalty reduction bills significantly reduce some racial disparities, law enforcement officials say. “Blacks make up 37.5 percent of the prison population at the state and federal levels. If we released those convicted on drug charges alone the percentage of Black males in prison would drop to 37 percent — a mere half of one percent,” Milwaukee County Sheriff David Clarke testified before the House Judiciary committee.

Furthermore, the rollbacks will harm the communities they’re allegedly intended to help, say critics. “People who are convicted of a crime and imprisoned are a very small minority of the U.S. population … they comprise approximately 6.6 percent of the population,” Peter Kirsanow and a member of U.S. Commission on Civil Rights wrote in a letter to Grassley. “These people have managed to be less law-abiding than the remaining 93.4 percent of the U.S. population – quite a feat,” he wrote. “It is perhaps less of a feat when one considers that many offenders have serious additional problems that likely incline them toward criminality.”...

“This bill doesn’t touch simple possession, because there’s virtually no simple possession cases in federal court,” said prominent critic Alabama Sen. Jeff Sessions. “The Senate bill would drastically reduce mandatory minimum sentences for all drug traffickers, even those who are armed and traffic in dangerous drugs like heroin, and provide for the early release of dangerous drug felons currently incarcerated in federal prison.”

Meanwhile, drug overdoses, mostly heroin and other opioids, killed over 47,000 Americans in 2014 alone and nearly half a million in the past decade. Nearly all heroin sold in the U.S. is imported illegally from Mexico. “While Colombia has historically been the biggest source of heroin sold in the United States, Mexican output has since surpassed it, DEA officials say. Together, the two countries account for more than 90 percent of the U.S. heroin supply, and nearly all of it is smuggled into this country by Mexican traffickers,” the Washington Post reports.

Yet Ryan continues to push the bipartisan elites’ sentencing reduction agenda even as Obama continues his “stigmatize-and-federalize” campaign against local and state law enforcement — and as the Obama administration is set to free 70,000 federal prisoners.  But Republicans’ efforts to partner with Democrats on leniency for criminals has stalled amid public concern.  Fifty-three percent of Americans, and 68 percent of nonwhites, are “worried a great deal” about rising violent crime, according to an April Gallup poll.

The Senate sentencing-rollback bill has been stopped by opposition from multiple Senators, including Sessions and Sen. Tom Cotton.  Also, President Barack Obama has rejected a proposed deal from Sen. Orrin Hatch and other Republicans leaders who have offered to back the rollback bill if Democrats support a “mens rae” rollback of white-collar business prosecutions.

August 29, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Friday, August 19, 2016

US Sentencing Commission finalizes its priorities for the guideline amendment cycle ending May 1, 2017

This new Federal Register notice from the US Sentencing Commission reports on the results of the USSC's meeting yesterday in which the Commission "identified its policy priorities for the upcoming amendment cycle."  Here are what I consider to be highlights from the fourteen listed priorities:

[T]he Commission has identified the following priorities:

(1) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c), and to develop appropriate guideline amendments in response to any related legislation.

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

(3) Continuation of its study of approaches to encourage the use of alternatives to incarceration.

(4) Continuation of its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction (e.g., “crime of violence,” “aggravated felony,” “violent felony,” “drug trafficking offense,” and “felony drug offense”) and the impact of such definitions on the relevant statutory and guideline provisions (e.g., career offender, illegal reentry, and armed career criminal), possibly including recommendations to Congress on any statutory changes that may be appropriate and development of guideline amendments that may be appropriate.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study....

(9) Study of offenses involving MDMA/Ecstasy, synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone), and consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.

(10) Possible consideration of whether the weapon enhancement in §2D1.1(b)(1) should be amended to conform to the “safety valve” provision at 18 U.S.C. § 3553(f) and §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases)....

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

August 19, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, August 14, 2016

Former AG Eric Holder brags about his "too little, too late" approach to dealing with federal sentencing's myriad problems

Holder-covington-feature-heroEric Holder, who served as attorney general of the United States from 2009 to 2015, has this notable New York Times op-ed that I ultimately find more frustrating than encouraging. The article is headlined "Eric Holder: We Can Have Shorter Sentences and Less Crime," and here are excerpts that prompt my frustration (based on the dates I highlighed above, and related dates highlighted below, and a bit of inserted commentary):

The financial cost of our current incarceration policy is straining government budgets; the human and community costs are incalculable. Today, a rare bipartisan consensus in favor of changing drug-sentencing laws presents an opportunity to improve the fairness and efficiency of America’s criminal justice system. But to build on this coalition for reform, which includes senior law enforcement officials, we need action in Congress.

In February 2015, President Obama convened a group of lawmakers — including the Republican senators Chuck Grassley of Iowa and Rand Paul of Kentucky and the Democratic senators Dick Durbin of Illinois and Cory Booker of New Jersey — to build support for sweeping reforms. But the momentum has slowed thanks to opposition from a small group of Republican congressmen using language dredged from the past. One, Senator Tom Cotton of Arkansas, even claimed recently that “we have an under-incarceration problem.”

The Republican presidential nominee, Donald J. Trump, is now fanning fears about the level of crime in America, which is actually at historic lows [Ed Note: crime was at historic lows in 2014 and has recently been going up]. Such pandering is a reminder of how we got here in the first place....

Controlling for other factors, the United States Sentencing Commission found that between December 2007 and September 2011, black male defendants received sentences 20 percent longer than their white counterparts. From 1983 to 1997, the number of African-Americans sent to prison for drug offenses went up more than 26-fold, compared with a sevenfold increase for whites. By the early 2000s, more than twice as many African-Americans as whites were in state prisons for drug offenses....

The Justice Department has pioneered reform.  Three years ago, as attorney general, I established the Smart on Crime initiative to reduce draconian mandatory minimum sentencing for low-level drug offenses and encourage more investment in rehabilitation programs to tackle recidivism. The preliminary results are very encouraging. Over the last two years, federal prosecutors went from seeking a mandatory minimum penalty for drug trafficking in two-thirds of cases to doing so in less than half of them — the lowest rate on record. The initiative may not be solely responsible, but 2014 saw the first consecutive drop in the federal prison population in more than three decades, coinciding with a falling crime rate.

Those who argue that without the hammer of a mandatory minimum sentence defendants won’t cooperate are wrong — in fact, the rate of cooperation held steady under the initiative, and the rate of guilty pleas remained constant. The system remained effective and became fairer. Reform has not made us less safe....

Mandatory minimum sentences should be eliminated for many offenses, and where they are still applied, their length should be reduced. The legislative proposals necessarily reflect a compromise, but we must ensure that they go far enough: The judiciary needs greater discretion in imposing mandatory minimums, as do our prosecutors in seeking them. Given the absence of parole in the federal system, we should increase the amount of sentence-reduction credit available to inmates with records of good conduct. And all offenders, regardless of their designated risk level, should get credit for participating in rehabilitation programs....

There is still a disparity in sentencing for offenses relating to crack and powder cocaine, chemically identical substances. Given the policy’s differential racial impact, which erodes confidence in the justice system, this disparity must go. In the light of recent events, we can’t afford criminal justice policies that reduce the already fragile trust between minority communities and law enforcement agencies....

Whatever the outcomes of the bills before Congress and the presidential election, the Justice Department existing reforms must be preserved. Important as they are, all these initiatives have a bearing only on the federal justice system, which houses about 10 percent of the prison population.  For the federal effort to be a template for reform in the states, where most prisoners are detained, Congress must lead.

The nation’s lawmakers must stiffen their spines, ignore divisive language and schedule votes in this congressional session on reform legislation.  An opportunity like this comes once in a generation. We must not miss it.  The over-reliance on mandatory minimum sentences must come to an end.

I have emphasized dates here because I consider former AG Eric Holder (and his boss President Obama) to be among those who really should bear much responsibility if federal policy-makers miss what Holder calls a "once in a generation" opportunity for federal sentencing reform.  Tellingly, much of the incarceration data Holder stresses were well known and widely discussed when he assumed office in early 2009. (For example, in this Harvard Law & Policy Review piece from Fall 2008, I stressed the problems of modern mass incarceration and urged progressives to "mine modern movements in Constitutional and political theory to make new kinds of attacks on mass incarceration and extreme prison punishments" and to "be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration.")  And yet, as Holder notes, he did not establish DOJ's Smart on Crime initiative until August 2013, and Prez Obama did not convene a group of lawmakers to push for reform in Congress until February 2015.

In other words, both Prez Obama and AG Holder fiddled while the federal sentencing system was still burning with tough-on-crime, mandatory-minimum "over-reliance" from 2009 to 2013 during the entire first Obama Administration Term.  And, critically, we should not lose sight of the important reality that Prez Obama's party controlled both houses of Congress until early 2011 and contolled the Senate until early 2015.  Moreover, the enduring and continued (misguided) opposition of Prez Obama and the Justice Department to mens rea reforms supported by the GOP establishment has arguably been the most critical roadblock to getting sweeping reform legislation enacted even now.

Last but not least, and as Holder reveals in this op-ed, federal prosecutors are still charging mandatory minimum drug sentencing provisions in near half of all drug cases (including in many crack cases where there is still a major, race-skewing sentencing disparity).  I suspect that when Holder says "mandatory minimum sentences should be eliminated for many offenses," he is largely referencing drug offenses in which no guns or violence were involved (where other mandatory minimums are applicable).  If Holder really believed that it would be sound and sensible to eliminate mandatory minimum sentences in such cases, he could have on his own included provisions in his Smart on Crime initiaitve to require line prosecutors to avoid charging under these statutes in all but the rarest drug cases rather than continuing to have these statutes still be applied in nearly half of all drug cases.

Sadly, I could go on and on and on about all the things former AG Holder could have and should have done while serving as U.S. Attorney General for six full years to deal with all the problems he now is quick to lament in the pages of the New York Times.  (Here it bears noting that he gets to write about these problems now from the safety of a corner office at a big DC firm where he is, according to this article, likely making more than $5,000,000/year, well over 20 times more than the hardest working federal prosecutors and federal defense attorneys make.)  Holder's closing sentiment urging federal lawmakers to "stiffen their spines" really gets my goat when his own spine struck me as so soft for his six years as Attorney General, and especially now that he gets to enjoy cashing in on the inside-the-Beltway privileges of allowing one's spine to blow back-and-forth with the prevailing political winds. 

August 14, 2016 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Tuesday, August 09, 2016

Highlighting the notable absence of criminal trials in a high-profile federal district court ... thanks to the modern "trial penalty"

Jury1Yesterday's New York Times had this article on the modern reality of negotiated federal criminal justice headlined "Trial by Jury, a Hallowed American Right, Is Vanishing."  Here are excerpts:

The criminal trial ended more than two and a half years ago, but Judge Jesse M. Furman can still vividly recall the case.  It stands out, not because of the defendant or the subject matter, but because of its rarity: In his four-plus years on the bench in Federal District Court in Manhattan, it was his only criminal jury trial.

He is far from alone. Judge J. Paul Oetken, in half a decade on that bench, has had four criminal trials, including one that was repeated after a jury deadlocked.  For Judge Lewis A. Kaplan, who has handled some of the nation’s most important terrorism cases, it has been 18 months since his last criminal jury trial.  “It’s a loss,” Judge Kaplan said, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.”

The national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions.  But recently, in the two federal courthouses in Manhattan and a third in White Plains (known collectively as the Southern District of New York), the vanishing of criminal jury trials has never seemed so pronounced.  The Southern District held only 50 criminal jury trials last year, the lowest since 2004, according to data provided by the court.  The pace remains slow this year.

In 2005, records show, there were more than double the number of trials: 106. And decades ago, legal experts said, the numbers were much higher. “It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested.  Everything else is done behind closed doors.”

Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.  “This is what jury trials were supposed to be a check against — the potential abuse of the use of prosecutorial power,” said Frederick P. Hafetz, a defense lawyer and a former chief of the criminal division of the United States attorney’s office in Manhattan, who is researching the issue of declining trials.

Julia L. Gatto, a federal public defender, recalled the case of Oumar Issa, a Malian arrested in Africa in a 2009 sting operation on charges of narco-terrorism conspiracy, which carried a mandatory minimum 20-year sentence, and conspiring to support a terrorist organization, which had no minimum.  Although Ms. Gatto and her client believed that elements of the case were weak and that there were strongly mitigating circumstances, Mr. Issa concluded that the risk of going to trial was too high.  He pleaded guilty in 2012 to material support, with prosecutors dropping the other charge.  He received 57 months in prison. “It was the only thing he could do,” Ms. Gatto said. “His hands were tied.”

In 1997, according to federal courts data nationwide, 3,200 of 63,000 federal defendants were convicted in jury trials; in 2015, there were only 1,650 jury convictions, out of 81,000 defendants....

Judge P. Kevin Castel, who helped to organize the court’s 225th anniversary celebration in 2014, recalled taking a friend, Mary Noe, a legal studies professor at St. John’s University, to see an exhibit of courtroom illustrations documenting Southern District trial scenes of past decades.  But as they reached the end, Professor Noe observed that the sketches of more recent defendants, like Bernard L. Madoff and the would-be Times Square bomber Faisal Shahzad showed them pleading guilty.  “I was like, what happened to the trials?” she recalled.

Judge Analisa Torres said she had felt the difference ever since joining the federal bench in 2013.  Judge Torres, a former state court judge who handled about two dozen criminal trials a year in Manhattan and the Bronx, said she has since had just a few such trials. “It’s day and night,” she said. On the state bench, she said, she spent her entire day in the courtroom but for the lunch hour. “Now, I am in chambers all day long.”

This article rightfully suggests that the vanishing jury trial is a sentencing story related to the distinctive severity of federal statutes and guidelines and the impact of the modern "trial penalty" in federal courts. Competent defense attorneys have to tell their federal clients that the decision to test the government's evidence at trial will almost always risk adding years, if not decades, to any eventual federal sentence on any charge that produces a conviction.

It is ironic, but not really surprising, that this problem has only gotten worse since the Blakely and Booker SCOTUS rulings a decade ago made much of a defendant's Sixth Amendment right to a jury trial.  Had the Booker court adopted a "jury trial" remedy to "fix" federal guideline sentencing rather than the advisory remedy, we likely would have seen an increase in jury trials focused on specific guideline enhancements (especially in fraud and other kinds of high-profile cases more common in the Southern District of New York).  In addition, modern federal sentencing doctrines that diminish the need for and significance of jury determinations — like guideline anhancements based on "acquitted conduct" and "uncharged conduct" and "relevant conduct" — would be no more.

It is also disconcerting, but not surprising, that federal district judges are now so quick to lament the lack of jury trials, but are still so slow to explore their powers and opportunities to encourage more trials.  Though subject to some legal uncertainty (and sure to generate some federal prosecutorial pushback), federal judges still could today consider requiring limited jury trials to aid the resolution of any major factual disputes that have major guideline sentencing consequences.  Notably, in other high-profile settings, especially with respect to the death penalty and fraud sentencings and collateral consequences, SDNY federal district judges have been willing to test the reach and limits of thier judicial authority to move the law forward as they see fit.  If these judges really lament the vanishing criminal trial so much, they can and should be more aggressively exploring just what they might be able to do about this problem.

August 9, 2016 in Blakely Commentary and News, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Sunday, July 24, 2016

Two new US Sentencing Commission "Quick Facts" on federal gun sentencing

The US Sentencing Commission late last week released two new Quick Facts publications, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format." Here are links to the latest publications and their summary description from the USSC:

In fiscal year 2015, there were 2,119 offenders convicted under 18 U.S.C. § 924(c) accounting for 3.0% of all offenders sentenced under the guidelines.  The number of offenders convicted of multiple counts of section 924(c) has decreased from 174 offenders in fiscal year 2011 (7.5% of all section 924(c) offenders) to 119 in fiscal year 2015 (5.6% of all section 924(c) offenders).

In fiscal year 2015, there were 4,984 offenders convicted under 18 U.S.C. § 922(g) accounting for 7.0% of all offenders sentenced under the guidelines.  The number of offenders sentenced under this statute has steadily decreased over the last five years from 5,761 in fiscal year 2011 to 4,984 offenders in fiscal year 2015.

July 24, 2016 in Federal Sentencing Guidelines, Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)

Thursday, July 21, 2016

Guest posting from Prof Mark Osler with advice to US Sentencing Commission on revising drug sentencing guidelines

Earlier this month, federal sentencing reform guru Mark Osler informed me that he put together some suggestions for the US Sentencing Commission in response to its request for public comment about proposed priorities.  In turn, I urged Mark to put together a guest-post for this space to ensure his insights can be seen outside the Beltway.  Here is what he sent my way:

Each year, the United States Sentencing Commission goes through a seasonal cycle; it starts and ends in May, when the Commission publishes proposed amendments (closing out one cycle) while setting out proposed priorities and inviting public comments to begin the next cycle. This year the public comment period lasts until July 25. You can get more complete information at www.ussc.gov.

The proposed priorities for this year are strikingly broad and encouraging for reform advocates.  They include some specific items, including “consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c),” but also some fascinating broader priorities.  The line that really caught my attention was this one: “the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.”

For those fascinated by federal sentencing, could there be a more enticing invitation?

I have submitted my own comment, which Doug has kindly linked here [down below].  It grows out of the response I got to a New York Times op-ed I wrote in 2014, suggesting that the weight of narcotics used in a conspiracy is a lousy proxy for the culpability of any one conspirator, and that it would be much better to instead simply enhance sentences for those individuals who make the most money from a narcotics operation.  After that piece ran, I was surprised at the group I heard from the most: sentencing judges.  A few pointed out (correctly) that they had proposed this decades ago, while others simply affirmed the problem with weight of narcotics as the central metric for a drug sentence.  And, of course, they had depressing stories to share of sentences they had been forced to give out (pre-Booker) to low-level players in large narcotics organizations.

Here is how my comment begins:

Currently, because of the structure and importance of the Drug Quantity Table at Guideline §2D1.1(c), the primary input of sentence computation in narcotics cases is the weight of the drugs at issue, either by an individual or conspiracy.  However, weight of narcotics is not a good proxy for culpability because it unfairly punishes the actions of too many low-level traffickers.  If a true kingpin imports 150 kilograms of cocaine into the country and pays a trucker $1,000 to haul it, both of them fall under Guideline §2D1.1(c)(2), which provides for a base offense level of 36. While guideline sections §3B1.1 & 1.2 (distinguishing roles in the offense) provide some level of differentiation, that differentiation will likely be at most a swing of six offense levels.

We all know that the one-off trucker is not nearly as culpable as the kingpin, but the guidelines don’t reflect that because weight-driven sentences are mandated by Guideline §2D1.1(c).  Sentencing judges have chafed at the resulting failure of proportionality ever since the beginning of the guideline era.

The false proxy of narcotics weight creates problems with proportionality and disparities because it too often obscures actual role and culpability.  Moreover, it imposes a complexity to the guidelines that is unnecessary.

After discussing the benefits and challenges of making such a change, I suggest three alternate ways to amend the guidelines and accomplish this goal.

Perhaps you agree with me, maybe you don’t, or it could be that you think there is a much cleaner route to simplicity, proportionality, and the reduction of disparities.  I urge you not only to read the rest of my comment, but to submit your own while the window is still open.

Download USSC comment 2016

July 21, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (7)

Tuesday, July 19, 2016

Perhaps previewing coming SCOTUS work in Beckles, four Eleventh Circuit judges make case against circuit's refusal to apply Johnson to guidelines

In this post after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career offender guideline of the US Sentencing Guidelines.  Notably, the Justice Department has consistently conceded Johnson-based constitutional problems with that career offender guideline, which in turn has led to most circuit courts finding Johnson-based constitutional problems with sentences based on that guideline. 

But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), squarely addressed this issue and ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  I considered this ruling suspect, but an amicus brief I helped put together urging en banc review in Matchett did not led to its reconsideration.  As blogged here last month, though, we know have the ultimate judicial authority on this issue poised to weigh in: the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whether Johnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.

For a variety of reasons, I am expecting that SCOTUS will ultimately agree with the majority of circuits that Johnson's holding applies to the career offender guidelines and thereby reject the Eleventh Circuit's Matchett precedent.  What I did not expect was that a number of Eleventh Circuit judges would set forth, in essence, some amicus briefing to SCOTUS in order to explain in detail why they think their own circuit's work in Matchett was wrong.  But that is what I see via a series of recent concurring opinions in In Re: William Hunt and In re: Charles Therion Clayton, cases in which a panel felt duty-bound to reject habeas applications due to the Matchett precedent but then followed up with separate opinions by Circuit Judges Wilson and (Jill) Pryor and Rosenbaum and Martin all explaining why they think Matchett is so wrong and so troublesome as we await a SCOTUS ruling in Beckles.

If you have read this far into this post, you probably have some interest in the application of Johnson and its impact on the career offender guidelines, which in turns means you ought to find the time to read all the judicial thoughts shared in Hunt and Therion.  I know that is my plan for this evening, and to whet everyone's appetite I will close this post by quoting the closing paragraph authored by Judge Pryor in these cases:

If the Supreme Court decides in Beckles that the residual clause in the career offender guideline is void for vagueness, there may be new hope for the scores of inmates who have tried to obtain relief since Johnson, only to be turned away by this Court based upon Matchett.  I hope next time around we will avoid the mistakes I have identified. And I hope that, rather than being behind the march of justice, we, as our nation’s designated guardians, will be at the front.

July 19, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Nearly four years(!?!) in federal prison for MLB scout who hacked into rival team's research and notes

As reported in this local article, headlined "Former Cardinals scouting director sentenced to 46 months for hacking Astros database," a notable defendant got a significant federal prison sentence for some illegal corportate espionage. Here are some of the details:

The former St. Louis Cardinals scouting director who admitted he hacked accounts of the Houston Astros to gain insight into their operations was sentenced Monday afternoon to 46 months in prison.

Chris Correa pleaded guilty in January to five counts of unauthorized access to a protected computer. As part of his plea, Correa admitted to using the accounts of three Astros employees to view scouting reports, amateur player evaluations, notes on trade discussions and proposed bonuses for draft picks.  The information he accessed was given an estimated value of $1.7 million by the U.S. Attorney’s office.

Correa, 36, also admitted taking measures to conceal his identity. The sentence includes two years of supervised release and restitution payment of $279,038.65.  He will remain free until he is to report to prison, in two to six weeks....

During his guilty plea six months ago, Correa contended he hacked into the Astros accounts to see if former Cardinals employees had taken proprietary data or statistical models to use in their new positions with the Astros. Correa told prosecutors he found evidence that it did occur, U.S. Attorney Kenneth Magidson told the Post-Dispatch at that time....

Giles Kibbe, general counsel for the Astros, said after the sentencing that Correa accessed the Houston team’s database 60 times on 35 different days. “I don’t know what he saw or thought he saw,” Kibbe said, adding that what was clear from listening to U.S. District Judge Lynn N. Hughes during the sentencing is this: “The Astros were victims in this case.”...

Houston and its general manager, Jeff Luhnow, who began his baseball career with the Cardinals more than a decade ago, have repeatedly denied that Luhnow or any other former Cardinals employees brought information to the Astros. “The Astros refute Mr. Correa’s statement that our database contained any information that was proprietary to the St. Louis Cardinals,” the team said in a statement in January. Along with the U.S. attorney’s investigation, in which no other member of the Cardinals’ organizations was charged, the team completed an internal investigation; its outcome was Correa’s dismissal a year ago....

Correa read a four-minute statement to the judge before Hughes handed down his sentence. “I behaved shamefully,” Correa said, in apologizing to the Astros. “The whole episode represents the worst thing I’ve ever done by far.”

As he continued reading, offering an apology to his family with the promise to “regain your trust,” Hughes stopped Correa, asking him to turn around and speak directly to family members attending the hearing. Correa did so, his voice breaking as he repeated his apology. Correa said that because of his actions, he lost his career and his house, and he will work with his wife to rebuild “a quiet life of integrity.”

Hughes chastised Correa several times for his actions, comparing them to middle-school behavior. The judge used as an example a teacher asking Correa if he threw the eraser to which Correa would justify the action by saying: “Bobby did, too!”

“I hope it didn’t work then. It’s not going to work now,” Hughes said. The judge likened Correa’s hacking actions to altering a check by adding extra zeroes “and wiping out someone’s bank account.” Hughes also disclosed in court that Correa had been using prescription drugs without a prescription since the hacking charges, and that he could also have been prosecuted for that crime.

Hughes noted that Correa had taken college classes in ethics, asking: “At any time did you think hacking the Astros’ computers and using other people’s passwords was ethical?”

“No, your honor,” Correa said. Correa left the courthouse without comment, climbing into the passenger seat of a white SUV that was quickly driven away....

As part of his plea in January, Correa admitted to illicitly accessing Houston’s database through three accounts from at least March 2013 to the end of June 2014. He began by accessing the email account of one Astros employee who used to work for the Cardinals, referred to in the documents as “Victim A.” Although never mentioned by name in the documents, two of the former employees being described are believed to be Luhnow and Sig Mejdal. Both were key architects in the early days of the Cardinals’ analytic departments, and both are now baseball operations execs in Houston.

Correa took advantage of the fact that “Victim A” had used a password for his Astros email that was similar to the one he used with the Cardinals. He had gained the password when “Victim A” turned in his Cardinals laptop before leaving the team. Correa was able to access the accounts of two other Houston employees and through them see information in a database nicknamed “Ground Control.” On March 24, 2013, Correa viewed an Excel file of every amateur player eligible for the draft as well as the Astros’ internal evaluations and the scouts’ proposed bonuses to offer the players. He also looked at the Astros’ evaluations of Cardinals’ prospects.

That June, during the draft, Correa entered Ground Control and filtered the Astros’ information on players not yet drafted. He also looked at specific pages for two players, neither of whom the Cardinals drafted.

During that visit he looked at Houston’s scouting information for three of the eight players the Cardinals’ selected the previous day in rounds three through 10. At baseball’s trade deadline, July 31, Correa peered into Houston’s notes on trade discussions. In March 2014, he again entered the database and looked at 118 pages of what court documents called “confidential information.”

Cardinals general manager John Mozeliak and other team officials have stated they did not know about the breaches until investigators alerted them in early 2015.

I have reprinted the details of this "hacker's crime" because I am struggling to see what aggravating factors justified a nearly four-year prison sentence for a white-collar offenders who would appear to present no obvious risk to public safety and who has admitted his misdeeds and seems to show genuine remorse for his computer crimes.  I sumrise from the press description here that the the defendant's federal sentencing guidelines range was driven up significantly by the U.S. Attorney's determination that the "estimated value" of corporate information accessed here was $1.7 million.   But the fact that the defendant was ordered to pay less than $300K in restitution suggest that the actual harm to the Cardinals was far less than the economic number that appears to have driven the defendant's sentence up so much under the applicable sentencing guidelines.

Because I have not done a careful study of lots of recent computer crime cases, I am not sufficiently informed about whether this particular defendant's crime was distinctly bad or whether his sentence is distinctly severe.  But I do know that modern problems in the US with mass incarceration is aggravated when we now have persons who pose no threat to public safety and who commit crimes that seem to have a relatively small impact on a huge rich company getting sent away to federal prison for a really long period of time.

July 19, 2016 in Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (30)

Thursday, July 14, 2016

First trader federally convicted for "spoofing" gets significant (below-guideline) prison term

As reported in this local article, headlined "Trader Michael Coscia 1st in nation to be sentenced under 'anti-spoofing' law," a notable new type of federal white-collar offender got a notable old-school type of punishment yesterday in federal court in Chicago. Here are some details:

In the outcome of a closely watched trial that could set precedent, convicted futures trader Michael Coscia was sentenced in federal court Wednesday to three years in prison and two years of supervised release for spoofing and commodities fraud.

Coscia, 54, of Rumson, N.J., was the first defendant in the country to stand trial under new anti-spoofing laws included in the 2010 Dodd-Frank Act.  In November, he was found guilty of six counts of spoofing — the use of computer algorithms to rig markets in fractions of a second — and six counts of commodities fraud.

Prosecutors had recommended five to seven years in prison, while the defense had sought probation.  Ultimately, U.S. District Judge Harry Leinenweber settled in the middle, citing Coscia's age and health, as well as the ambiguous amount of financial loss incurred by the victims.

"This is a very serious crime and it has serious consequences. ... (Coscia) has helped a lot of people over the years, not only family and friends, but also fellow traders.  But he also engaged in spoofing and had no financial need to do so," Leinenweber said shortly before announcing the sentence.

Federal prosecutors were pleased with the outcome. "There was and has been this sort of suggestion throughout the course of this prosecution that this criminal case is somehow murky or unclear because of technology, because of the use of algorithms. Well, guess what?  A lie is a lie.  Deceit is deceit. ... The defendant cheated faceless victims out of money through deceit over the internet.  Today's result and sentence, I think, is a reflection of that," U.S. Attorney Zachary Fardon said.

Assistant U.S. Attorney Sunil Harjani added that the sentence of imprisonment would send a message to traders in Chicago and throughout the U.S.

Coscia made about $1.4 million in only about two months by victimizing traders including those at Citadel, the Chicago financial services firm formed by billionaire Ken Griffin, when he manipulated the prices of futures contracts on the Chicago Mercantile Exchange, prosecutors have said.

Upon leaving the courtroom, Coscia declined to comment.  He smiled as he hugged friends and family who had come to show support.  During the hearing, he gave a brief statement asking for leniency and saying that he takes responsibility for his actions.

Stephen Senderowitz, Coscia's attorney, said he will file an appeal.  During the hearing, Senderowitz emphasized that it's not clear how much money any individual trader lost because of Coscia's actions.  That will be among the issues argued further during the appeal, during which the defense will also challenge the constitutionality of the spoofing law, he said afterward....

The Coscia case is "just the tip of the iceberg" in terms of the government's increasingly active role in such prosecutions, said Renato Mariotti, lead prosecutor on the case before recently joining a private practice.  "For years, many people scoffed at the notion that the government could explain high-frequency trading strategies to judges and juries. No one is laughing anymore," Mariotti said in a statement after the sentencing.

Coscia commissioned the design of computer programs, known as algorithms, to manipulate prices in the markets of various commodities, including gold, soybean meal, soybean oil, high-grade copper, Euro FX and Pounds FX currency futures, prosecutors said.

Among Coscia's family, there was some feeling that the sentencing could have gone worse. During the hearing, Anthony Coscia, Michael Coscia's uncle and a counselor at a Catholic high school in Brooklyn, N.Y., quoted passages from Shakespeare and the Bible while speaking on behalf of his nephew's character.... "The judge seemed to show some compassion," the elder Coscia said as he left the courtroom.

July 14, 2016 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (0)

Saturday, July 02, 2016

"Couriers Not Kingpins: Toward a More Just Federal Sentencing Regime for Defendants Who Deliver Drugs"

The title of this post is the title of this new paper authored by Kevin Lerman and recently posted to SSRN.  Here is the abstract:

After decades of tweaking and modification, the federal sentencing guidelines have yet to meaningfully separate high-level drug traffickers from their unsophisticated underlings. The Mitigating Role Guideline — designed in part to alleviate the effects of quantity-based drug sentencing — fails to reach many of the people prosecuted for their work at the lowest rungs of drug-trafficking hierarchies.  This includes couriers and mules who transport drugs for small amounts of money.

Quantity-based sentencing guidelines qualify couriers and mules for extremely high sentences, which they must work down from by proving they deserve one or more sentencing reductions.  The Mitigating Role Guideline requires defendants to prove their role makes them “substantially less culpable” than similarly situated drug traffickers.  This mushy standard — along with a host of other obstacles — results in denial of sentencing reductions.  Mitigating Role is all-the-more treacherous because it triggers further sentencing reduction that frequently apply to couriers and mules.  These reductions are: (1) Role Cap, which counteracts quantity-based calculations that the Sentencing Commission has determined overstate low-level drug defendants’ culpability; and (2) the Methamphetamine Importation Enhancement, which extends sentences unless mitigating role is granted.

This Paper argues the Mitigating Role Guideline must be amended to more consistently account for low-level defendants.  An amended guideline should assess defendants’ functional roles rather than engage in an obscure comparison with so-called average participants.  It should expressly disavow “indispensability” analysis, which incorrectly equates basic but-for causation with culpability.  And the guideline should expressly distinguish between the analysis required for Mitigating Role and the analysis for Aberrant Behavior. Conflation of the two guidelines frequently leads to denials of sentencing reductions.  Finally, given past failures, guidelines depending on Mitigating Role should no longer depend on it. Rather, they should be "de-coupled," so they take effect for any defendant’s role that is not aggravating.  Because quantity-based guidelines are perilously high for all but a tiny fraction of violent drug trafficking defendants, these reductions for Role Cap and subtraction of the Methamphetamine Enhancement should be applied presumptively to limit the impact of overly harsh role determinations.

July 2, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

Wednesday, June 29, 2016

Sixth Circuit affirms way-below guideline five-year child porn sentence based in part on jury poll urging sentence even lower

A number of helpful readers made sure that, despite being on the road all day, I did not miss the remarkable Sixth Circuit panel decision today in US v. Collins, No. 15-3236 (6th Cir. June 29, 2016) (available here).  I first blogged about this case here after initial sentencing, recounting these basic details via a news account:

A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.

Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.

Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.

But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.

Unhappy with this outcome, federal prosecutors appealed the sentence as unreasonable, but now has lost before a unanimous Sixth Circuit panel. The Court's relatively short opinion includes these passages:

The government also argues that the jury poll was an “impermissible factor[]” for the district judge to consider in crafting an appropriate sentence. Conatser, 514 F.3d at 520. We again disagree. Federal law provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence....

District courts also have the authority to “reject the Guidelines sentencing ranges based on articulated policy disagreements in a range of contexts.” United States v. Kamper, 748 F.3d 728, 741 (6th Cir. 2014). Indeed, we have suggested the plausibility of rejecting guidelines ranges in child pornography cases based on policy disagreements. See United States v. Bistline (Bistline I), 665 F.3d 758, 762-64 (6th Cir. 2012) (finding that the district court “did not seriously attempt to refute” the judgments underlying the guidelines).

When establishing the Sentencing Commission, Congress directed it to take “the community view of the gravity of the offense” into account when crafting appropriate criminal sanctions. 28 U.S.C. § 994(c)(4). As reflected in his writing on the subject, and briefly in the sentencing hearing below, the district judge reasons that the Commission fell short of this directive. See Judge James S. Gwin, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values?, 4 HARV. L. & POL'Y REV. 173, 185 (Winter 2010)....

Though we reiterate that juries lack “the tools necessary for the sentencing decision,” Martin, 390 F. App’x at 538, they can provide insight into the community’s view of the gravity of an offense. See Gwin, supra at 193-94; see also Ring v. Arizona, 536 U.S. 584, 615-16 (2002) (BREYER, J., concurring) (jurors “reflect more accurately the composition and experiences of the community as a whole” and are “better able to determine in the particular case the need for retribution”) (internal quotations and citations omitted). The jury did not determine or impose defendant’s sentence. Rather, the district judge – who does possess the necessary tools for the sentencing decision – was at all times interposed between the jurors’ views of an appropriate sentence and the sentencing guidelines’ § 3553(a) factors. Considering the jury’s sentencing recommendation as part of the sentencing calculus did not conflict with the district judge’s duty or ability to properly weigh the § 3553(a) factors and independently craft an appropriate sentence.

June 29, 2016 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4)

US Sentencing Commission publishes "Overview of Federal Criminal Cases – Fiscal Year 2015"

On Monday, the US Sentencing Commission released this new data report, excitingly titled "Overview of Federal Criminal Cases – Fiscal Year 2015."   This USSC webpage provides this summary of the report's contents and findings:

The United States Sentencing Commission received information on 71,184 federal criminal cases in which the offender was sentenced in fiscal year 2015. Among these cases, 71,003 involved an individual offender and 181 involved a corporation or other “organizational” offender. The Commission also received information on 24,743 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 [and includes these key findings]:

  • The 71,003 individual original cases reported to the Commission in fiscal year 2015 represent a decrease of 4,833 (6.4%) cases from fiscal year 2014.

  • Drug cases continued to be the most common type of federal case.  The 22,631 drug cases reported to the Commission in fiscal year 2015 accounted for 31.8 percent of all cases report to the Commission.

  • Immigration cases were the next most common, accounting for 29.3 percent 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.

  • In fiscal year 2015, an imprisonment sentence was imposed on 87.3 percent of all offenders. Another 7.2 percent of offenders received a sentence of probation (i.e., where no type of confinement was imposed), a rate that has decreased over time from a high of 15.3 percent in 1990.

  • Almost three-quarters of offenders sentenced in fiscal year 2015 received a sentence of less than five years.

  • Methamphetamine offenses were the most common drug trafficking offenses and were the most severely punished drug crime in fiscal year 2015.

  • The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty was the lowest it has been since 1993.

June 29, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)

Tuesday, June 28, 2016

Final SCOTUS order list has nine Mathis GVRs ... and I suspect hundreds more cases will be impacted

The Supreme Court this morning finished up its work before heading out on summer vacation by issuing this order list. Though the Justices granted review in eight new cases, none appear to involve criminal justice issues. But the order list still had a bit of sentencing intrigue by including nine GVRs based on its Mathis ACCA ruling from last week (basics here).

Though it is never surprising to see a spate of GVRs in the wake of any significant ruling about a federal sentencing statute, I suspect that the fall-out from Mathis will extended to many more cases because, as reported via Justice Alito's dissent, it seems the ruling means that "in many States, no burglary conviction will count" as a possible ACCA predicate offense. That reality not only can impact many past, present and future ACCA cases, but also could also echo through the application of burglary (and even other crimes) in past career offender guideline cases.

Ultimately, I would be very surprised in the impact and import of Mathis end up nearly as grand or as complicated as last Term's Johnson ruling. But the consequential sentencing math of Mathis still may be major.

June 28, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Monday, June 27, 2016

SCOTUS grants cert on Johnson application to career offender guidelines

As noted in this prior post, SCOTUS has been relisting throughout June two notable petitions on Johnson's applicability to the career offender guidelines.  Excitingly for sentencing fans, today's final Supreme Court order list includes a grant or certiorari in Beckles v. United States, No. 15-8544, which SCOTUSblog has described this way:

Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whetherJohnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

IN other words, Beckle buckle-up your seat-belts, sentencing fans, as the post-Johnson criminal history bumpy ride is now sure to continue in the Supreme Court for at least the next Term and likely beyond.

Notably and significantly, the SCOTUS order list reports that "Justice Kagan took no part in the consideration or decision of ... this petition." In other words, it seems that Justice Kagan's prior history as Solicitor General has caused her to be conflicted out of this case. Ergo, it will likely be only be a seven (or perhaps and eight-member) Court that will be resolving the application of vagueness doctrines in this case.  

A few (of many) prior related posts:

June 27, 2016 in Federal Sentencing Guidelines, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (1)

Friday, June 17, 2016

"'Loss' Revisited: A Guarded Defense of the Centerpiece of the Federal Economic Crime Sentencing Guideline"

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

This article discusses "loss," the concept at the heart of the Federal Sentencing Guidelines section governing economic crimes, Section 2B1.1. It notes the common criticism that "loss" plays too large a role in federal economic crime sentencing, but distinguishes between the sound observation that structural problems in Section 2B1.1 cause loss amount to generate too many "offense levels" and critiques of the core definition of "loss."

The article summarizes previous suggestions made by the author and others to address the arguably disproportionate role played by "loss," but it focuses primarily on the Guidelines' definition of "loss," whether actual or intended. The article defends the fundamental soundness of the existing "loss" definition, but suggests some points on which improvements might be made, particularly to the definition of intended loss.

The article was solicited as a response to an article by Mr. Daniel Guarnera, published in the same issue of the Missouri Law Review, in which Mr. Guarnera argues for a revision of the definition of intended loss to include unrealized harms as to which the defendant was reckless.

June 17, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)