Thursday, October 02, 2014

Notable new empirical research on citizenship's impact on federal sentencing

I just came across this notable new empirical article on federal sentencing patterns published in American Sociological Review and authored by Michael Light, Michael Massoglia, and Ryan King. The piece is titled "Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts," and here is the abstract:

When compared to research on the association between immigration and crime, far less attention has been given to the relationship between immigration, citizenship, and criminal punishment.  As such, several fundamental questions about how noncitizens are sanctioned and whether citizenship is a marker of stratification in U.S. courts remain unanswered.  Are citizens treated differently than noncitizens — both legal and undocumented — in U.S. federal criminal courts?  Is the well-documented Hispanic-white sentencing disparity confounded by citizenship status?  Has the association between citizenship and sentencing remained stable over time?  And are punishment disparities contingent on the demographic context of the court?

Analysis of several years of data from U.S. federal courts indicates that citizenship status is a salient predictor of sentencing outcomes — more powerful than race or ethnicity.  Other notable findings include the following: accounting for citizenship substantially attenuates disparities between whites and Hispanics; the citizenship effect on sentencing has grown stronger over time; and the effect is most pronounced in districts with growing noncitizen populations.  These findings suggest that as international migration increases, citizenship may be an emerging and powerful axis of sociolegal inequality.

October 2, 2014 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Wednesday, October 01, 2014

This is your federal sentencing data on drugs (after the minus-2 amendment)

I could not help but think about the famous 1980s "This Is Your Brain on Drugs" campaign from Partnership for a Drug-Free America once I took a close look at the US Sentencing Commission's latest greatest data on federal sentencing appearing now in this Third Quarter FY 2014 Sentencing Update.  The famous "egg" ad make clear that drugs could scramble your brain, and a "Note to Readers" appearing early in the latest USSC data report makes clear that a recent amendment to the drug sentencing guidelines has started to scrambling cumulative federal sentencing data.

Here is the USSC's "Note to Readers," which highlights why it will prove especially challenging to fully assess and analyze federal sentencing practices in FY14 because of mid-year drug sentencing reforms:

On April 30, 2014, the Commission submitted to Congress a proposed amendment to the sentencing guidelines that would revise the guidelines applicable to drug trafficking offenses.  That amendment will become effective on November 1, 2014 and will be designated as Amendment 782 in the 2014 edition of Appendix C to the Guidelines Manual.  Amendment 782 changes the manner in which the statutory mandatory minimum penalties for drug trafficking offenses are incorporated into the base offense levels in the drug quantity table in section 2D1.1 of the Guidelines Manual.  Specifically, the amendment generally reduces by two levels the offense levels assigned to the quantities described in section 2D1.1 and makes corresponding changes to section 2D1.11.  On July 18, the Commission voted to give retroactive effect to Amendment 782, beginning on November 1, 2014.

On March 12, 2014, the Department of Justice issued guidance to all United States Attorneys regarding the sentencing of drug trafficking offenders in anticipation of an amendment to the guidelines lowering the base offense levels for drug trafficking cases. In that guidance, the Attorney General authorized prosecutors to not object to a defense request for a two-level variance from the sentencing range calculated under the current version of the Guidelines Manual in drug trafficking offenses, provided that several other conditions were met.  Judges and probation offices have informed the Commission that in some districts the prosecutors themselves are requesting that the court depart from the sentencing range calculated under the Guidelines Manual and impose a sentence that is two levels below that range.

The data the Commission is reporting in this Preliminary Quarterly Data Report appears to reflect those practices.  On Table 1 of this report, the Commission reports the rate at which the sentence imposed in individual cases was within the applicable guideline range. The rate through the third quarter of fiscal year 2014 was 47.2 percent.  This compares with 51.2 percent in fiscal year 2013. However, as can be seen from Tables 1-A and 1-B, most of this decrease is attributable to sentences imposed in drug offenses. As shown on Table 1-A, the within range rate in cases not involving a drug offense was 53.3 percent through the third quarter of fiscal year 2014, compared with 54.8 percent in fiscal year 2013.

Table 1-B presents data for drug cases only.  As shown on that table, the within range rate for sentences imposed in drug cases through the third quarter of fiscal year 2014 was 30.0 percent, a decrease of more than eight percentage points from the rate of 38.8 percent at the end of fiscal year 2014.  This decrease in the within range rate resulted from an increase in the rate at which the government requested a below range sentence, from 39.4 percent in fiscal year 2013 to 45.7 percent through the third quarter of fiscal year 2014, as well as an increase in the rate of non-government sponsored below range sentences, from 20.8 percent in fiscal year 2013 to 23.5 percent through the third quarter of fiscal year 2014.

Because this change in sentencing practices did not occur until more than five months into the fiscal year, the impact of this change is not fully reflected in the average data presented in this cumulative quarterly report.  The Commission expects a further reduction in the within range rate for drug offenses to be reflected in the data for the completed fiscal year 2014. 

October 1, 2014 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Tuesday, September 23, 2014

High-profile commentator Dinesh D’Souza gets below-guideline probation sentence for violating federal campaign finance laws

As reported in this New York Times piece, headlined "D’Souza Is Spared Prison Time for Campaign Finance Violations," another notable white-collar defendant got a below-guideline federal sentence today thanks to judges now having broader post-Booker sentencing discretion. Here are the details:

The conservative author and documentary filmmaker Dinesh D’Souza was spared prison time on Tuesday after pleading guilty earlier this year to violating federal campaign finance laws.

Judge Richard M. Berman of Federal District Court in Manhattan handed down a probationary sentence — including eight months in a so-called community confinement center — and a $30,000 fine, bringing to a close a high-profile legal battle that started with Mr. D’Souza’s indictment in January for illegally using straw donors to contribute to a Republican Senate candidate in New York in 2012.

Mr. D’Souza, who has accused President Obama of carrying out the “anticolonial” agenda of his father, initially argued that he had been singled out for prosecution because of his politics. In April, his lawyer, Benjamin Brafman, filed court papers contending that Mr. D’Souza’s “consistently caustic and highly publicized criticism” of Mr. Obama had made him a government target.

A month later, however, on the morning he was scheduled to go on trial, Mr. D’Souza pleaded guilty. “I deeply regret my conduct,” he told the court. Even with his fate hanging in the balance, Mr. D’Souza plowed ahead with his thriving career as a right-wing provocateur. Over the summer, while awaiting his sentencing, he published the book “America: Imagine a World Without Her,” which reached No. 1 on The New York Times’s nonfiction hardcover best-seller list, and a companion documentary film that has made $14.4 million at the box office.

The government charged Mr. D’Souza, 53, with illegally arranging to have two people — an employee and a woman with whom he was romantically involved — donate $10,000 each to the campaign of an old friend from Dartmouth College, Wendy E. Long, with the understanding that he would reimburse them in cash for their contributions. Ms. Long was challenging Senator Kirsten E. Gillibrand, a Democrat.

According to prosecutors, Mr. D’Souza lied to Ms. Long about the donations, reassuring her that “they both had sufficient funds to make the contributions.” Ms. Long pressed Mr. D’Souza on the issue after the election, and he acknowledged that he had reimbursed the two people, the government said, but told Ms. Long not to worry because she had not known about it.

When Mr. D’Souza entered his guilty plea, Judge Berman said he could face up to two years in prison. The federal sentencing guidelines call for 10 to 16 months, but the final decision is up to the judge’s discretion. “Judges are all over the map on these reimbursement cases,” said Robert Kelner, a campaign-finance lawyer at Covington & Burling.

Mr. D’Souza’s lawyers asked for leniency, arguing in a court filing that their client had “unequivocally accepted responsibility” for his crime. “We are seeking a sentence that balances the crime he has regrettably committed with the extraordinary good Mr. D’Souza has accomplished as a scholar, as a community member and as a family member,” they wrote, requesting that he be sentenced to probation and community service at the Boys and Girls Clubs of Greater San Diego.

The government rebutted Mr. D’Souza’s claims, highlighting both the seriousness of his offense and what it called “the defendant’s post-plea failure to accept responsibility for his criminal conduct.” According to the government, Mr. D’Souza assumed a different posture with respect to his case when he was not before the court. It cited a television interview he gave two days after his plea in which he “repeatedly asserted that this case was about whether he was selectively prosecuted.”

This story reminds me why I am so sad Bill Otis no longer comments on this blog; I am so eager to hear from him directly whether he thinks this case is yet another example of, in his words, allowing "naïve and ideologically driven judges" to make sentencing determinations and therefore further justifies embracing mandatory sentencing schemes that would always require judges to impose prison terms on these sorts of non-violent offenders because these sorts of offenses do great harm even if they do not involve violence.

Based on my limited understanding of the crime and criminal here, I feel fairly confident asserting that a prison term for Mr. D’Souza would have achieved little more than spending extra federal taxpayer dollars without any real public safety return on that investment. But Bill and I rarely see eye-to-eye on these matters, and thus I am eager for a distinct perspective in this notable white-collar case.

September 23, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (7) | TrackBack

Monday, September 22, 2014

Sixth Circuit reverses Ponzi scheme sentence because loss calculation failed to credit monies paid out

This morning a Sixth Circuit panel has handed down a notable ruling about loss calculations in the federal sentencing of a Ponzi schemer.  Here is how the panel opinion in US v. Snelling, No. 12-4288 (6th Cir. Sept. 22, 2014) (available here) starts and concludes:

Defendant-Appellant Jasen Snelling appeals a 131-month prison sentence imposed pursuant to a plea agreement.  In the agreement, Snelling admitted to charges of conspiracy to commit mail and wire fraud, obstruction of justice, and tax evasion for his part in an investment scheme that defrauded investors of nearly $9 million.  Snelling challenges the sentence based on an allegedly faulty Guidelines-range calculation that employed a loss figure that did not take into account the sums paid back to his Ponzi scheme’s investors in the course of the fraud.

For the reasons below, we vacate the sentence of the district court and remand the case for resentencing.....

Admittedly, there is intuitive appeal to the government’s argument that Snelling should not be allowed to benefit from the payments he made “not to mitigate the losses suffered . . . but to create the means to convince new victim-investors to pay him even more money.”  We need not reflect, however, on whether it is unseemly for Snelling to benefit from the money he paid out to investors in an effort to perpetuate his Ponzi scheme. Undoubtedly, it is.  The only question we must consider is whether the district court correctly applied the Guidelines and whether it used a correct Guidelines range.

An accurately calculated Guidelines range is necessary for a procedurally reasonable sentence — any error in calculating the Guidelines range cannot survive review.  See Gall v. United States, 552 U.S. 38, 49 (2007); see also United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007) (“[W]e must ensure that the district court correctly calculated the applicable Guidelines range which are the starting point and initial benchmark of its sentencing analysis.”) (internal alterations and quotation marks omitted).  As appealing as the government’s argument may be, it does not comport with the text of the Guidelines. Accordingly, the district court was in error when it declined to reduce the loss figure by the value of the payments made by Snelling to his investor victims in perpetuating his Ponzi scheme.

September 22, 2014 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

Wednesday, September 17, 2014

Woman who bought guns for killer gets (way-above-guideline) eight-year federal prison sentence

As reported in this post last month, a high-profile federal gun case in upstate New York involved federal prosecutors seeking a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense.  This new local article, headlined "Woman tied to firefighter ambush sentenced to 8 years," details that the feds today were successful in securing a way-above-guideline federal gun sentence in the case:

The woman convicted of buying guns for a man that were used to kill two firefighters on Christmas Eve 2012 was sentenced to eight years in prison on federal charges Wednesday. The sentence, imposed by U.S. District Judge David Larimer, will run concurrent with a state sentence Dawn Nguyen is now serving of 16 months to four years.

On June 6, 2010, Nguyen bought the semiautomatic rifle and shotgun that William Spengler Jr. used when he fatally shot two volunteer firefighters Dec. 24, 2012. She claimed on a federal firearms transaction form that the guns were for her, when she was purchasing them for Spengler.

"I'm sure Miss Nguyen wishes she could take back that decision she made on that June day, but life is not like that," Larimer said in federal court Wednesday morning. Assistant U.S. Attorney Jennifer Noto in court Wednesday had argued that Nguyen's actions directly led to the Christmas Eve killings. "She should have foreseen the possibility of serious harm," said Noto....

Spengler had previously served 17 years in prison for fatally beating his grandmother with a hammer in 1980.

Larimer on Wednesday said he believed Nguyen knew of Spengler's dangerousness, and that she likely knew the facts behind Spengler's killing of his grandmother. Speaking of Spengler's past crime, Larimer said, "that should raise not one but hundreds of red flags that maybe this is not the kind of person who you want to be giving guns to."

Nguyen's lawyer Matthew Parrinello maintained that Nguyen did not know the specifics of Spengler's earlier crime. "This was a quirky, weird, crazy neighbor that she knew," said Parrinello. "But he was very nice, very kind and he did things for her family."

Dawn Nguyen on Wednesday faced the court room — which was packed with police officers, West Webster, N.Y., volunteer firefighters and her relatives — and told the crowd that she was sorry for her actions.

Related prior posts:

September 17, 2014 in Federal Sentencing Guidelines, Gun policy and sentencing, Offense Characteristics | Permalink | Comments (3) | TrackBack

Tuesday, September 16, 2014

Terrific collection of materials on-line as USSC's "Annual National Seminar Goes Paperless"

Though not nearly as historic or controversial as Bob Dylan going electric, I was still excited and intrigued to see a new item on the US Sentencing Commission's website announcing that this week's upcoming USSC Annual National Seminar "is going paperless." What this means, as the notice explains, is that all of the USSC's Seminar materials are now available online at this link

I recommend that everyone interested in federal sentencing data and developments take the time to click through and scroll down through the USSC's Seminar agenda. One can find lots of interesting articles, data runs and presentation materials that provide information and insights about modern federal sentencing that would be hard to find anywhere else. Kudos to the Commission for going paperless and for enabling folks like me who cannot make it to this year's event to still access a lot of the materials that are to be presented.

September 16, 2014 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, September 08, 2014

Intriguing concurring sentiments about federal child porn downloading cases from Judges Noonan and Reinhardt

Late last week, two judges on the Ninth Circuit made noteworthy an otherwise forgettable decision in US v. Hardrick, No. 13-50195 (9th CIr. Sept. 4, 2014) (available here), through their concurring opinions in a run-of-the-mill affirmance of federal conviction of a child pornography downloader.  Here is the text of Judge Noonan's Hardrick concurring addition:

I write to underline the need for further action to discourage a crime whose actual extent is unknown but whose commission is increasingly prosecuted as a serious federal offense. As pointed out in a thoughtful communication by Alexandra Gelber, Assistant Deputy Chief, Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice: Those convicted of the crimes of possessing, receiving, or distributing child pornography typically have no criminal record but “include professors, teachers, coaches, fathers, lawyers, doctors, foster parents, adoption agency owners, and more.”  See Alexandra Gelber, Response to “A Reluctant Rebellion” 7 (July 1, 2009), http://www.justice.gov/criminal/ceos/downloads/ReluctantRebellionResponse.pdf. Obviously, lack of criminal history is not a defense.  It is equally obvious that this kind of defendant is normally law-abiding and, unless suffering from some psychological impairment — the probability Judge Reinhardt effectively develops — could be expected to obey the law in this area if aware of its provisions and especially if aware of its sanctions. Why should the government not advertise the law and its penalty?  Better to stop a crime’s commission than mop the consequences.

Judge Reinhardt's comment are a bit more extended, and here are excerpts:

Like Judge Noonan, I concur in the unanimous opinion of the court. Also, like Judge Noonan, I am disturbed about the practical impact of the child pornography laws upon otherwise law-abiding individuals.  I do not agree, however, that advertising the legal consequences is a solution to the problem.  Rather, it is my view that “psychological impairment” is in most, if not all, cases the cause of the criminal conduct.  Whether psychiatric treatment rather than incarceration would be the proper response by state authorities is a matter that I would hope would be given more serious consideration than it has until now.  Surely sentences of five to twenty years for a first offense of viewing child pornography are not the solution.  See 18 U.S.C. § 2252(b)(1).  Nor are mandatory sentences of fifteen to forty years for a second.  See id.....

I do not profess to know the solution to the problem of how to cure the illness that causes otherwise law-abiding people to engage in the viewing of child pornography.  I know only that lengthy sentences such as the one in this case, ten years (and below the guidelines at that) for a first offense, cannot be the answer.

There is nothing new in what I say here, but it is a problem that I believe deserves more attention than we have given it thus far.  Many lives of otherwise decent people have been ruined by psychological problems they are not presently capable of controlling. Incarcerating them will not end the horror of child pornography or the injury it inflicts on innocent children.  All it accomplishes is to create another class of people with ruined lives — victims of serious mental illness who society should instead attempt to treat in a constructive and humane manner.

September 8, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Thursday, September 04, 2014

Former Virginia Gov McDonnell (and wife) now facing high-profile federal sentencing after jury convictions on multiple charges

As detailed in this FoxNews report, headlined "Ex-Virginia governor, wife found guilty on corruption charges," a high-profile federal criminal trial is now over and a high-profile federal sentencing process is about to begin. Here are the basics:

Former Virginia Gov. Bob McDonnell and his wife Maureen were convicted Thursday on a range of corruption charges in connection with gifts and loans they accepted from a wealthy businessman, marking a stunning fall for the onetime rising Republican star.

A federal jury in Richmond convicted Bob McDonnell, 60, of 11 of the 13 counts he faced; Maureen McDonnell was convicted of nine of the 13 counts she had faced. Both bowed their heads and wept as a stream of "guiltys" kept coming from the court clerk. The verdict followed three days of deliberations, after a five-week trial.

Sentencing was scheduled for Jan. 6. Each faces up to 30 years in prison. After the verdict was read, FBI agent-in-charge Adam Lee said the bureau will "engage and engage vigorously in any allegation of corruption."  Assistant Attorney General Leslie Caldwell, head of the Justice Department's criminal division, said the state's former first couple "turned public service into a money-making enterprise."

The former governor, up until his federal corruption case, was a major figure in national politics and had been considered a possible running mate for presidential candidate Mitt Romney in 2012.  The couple, though, was charged with doing favors for a wealthy vitamin executive in exchange for more than $165,000 in gifts and loans.  They also were charged with submitting fraudulent bank loan applications, and Maureen McDonnell was charged with one count of obstruction.

The former governor testified in his own defense, insisting that he provided nothing more than routine political courtesies to former Star Scientific CEO Jonnie Williams. Maureen McDonnell did not testify.  His testimony and that of others exposed embarrassing details about Maureen McDonnell's erratic behavior and the couple's marital woes as the defense suggested they could not have conspired because they were barely speaking....

Prosecutors claimed that the McDonnells turned to Williams because they were grappling with credit card debt that once topped $90,000 and annual operating shortfalls of $40,000 to $60,000 on family-owned vacation rental properties. Two of the loans totaling $70,000 were intended for the two Virginia Beach rent houses.  Williams said he wrote the first $50,000 check to Maureen McDonnell after she complained about their money troubles and said she could help his company because of her background selling nutritional supplements.

My (way-too-quick) rough review of likely applicable sentencing guidelines suggests that the McDonnells are likely facing guideline sentencing ranges of 10 years or even longer based on the offense facts described here. I presume they should be able to get some top-flight attorneys to make some top-flight arguments for below-guideline sentences. But, at least for now, I am inclined to urge former Gov McDonnell to expect to be celebrating his 65th (and maybe also his 70th) birthday in the graybar hotel.

September 4, 2014 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (13) | TrackBack

Tuesday, September 02, 2014

"A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion"

The provocative title of this post is the title of this provocative new article available via SSRN and authored by (former federal prosecutor) Mark W. Osler and (current federal judge) Mark W. Bennett. Here is the abstract:

Numbers don’t lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels. In this article, a federal District Court Judge and a former federal prosecutor examine the roots of this explosion with a focus on the discretion of Congress, the United States Sentencing Commission, federal prosecutors, and judges. This dark period may be in its twilight, though, and the authors conclude by describing specific actions each of these four groups could take to dismantle the cruel machinery of mass incarceration.

September 2, 2014 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, August 28, 2014

At third federal sentencing, elderly child porn defendant gets one year in prison and lawyer pledges SCOTUS appeal

Regular readers and hard-core federal sentencing fans are familiar with the long-running dispute over the sentencing of child porn downloader Richard Bistline.  The latest chapter of this saga, but apparently not the last, unfolded in federal district court yesterday as reported in this Columbus Dispatch article, headlined "Child-porn possessor finally gets harsher sentence: 1 year in prison." Here are excerpts:

A Knox County man at the center of a fight about prison sentences for people convicted of possessing child pornography won’t be out of the spotlight anytime soon.  Richard Bistline, 71, was sentenced yesterday to a year and a day in federal prison by U.S. District Judge George C. Smith, who also ordered 10 years of supervised release.  Bistline also must register as a sex offender.

Bistline’s attorney, Jonathan T. Tyack, immediately said he will appeal the case in the hope that it eventually will be considered by the U.S. Supreme Court....

It was the third time that Bistline, of Mount Vernon, had been sentenced for his 2009 conviction on one count of possession of child pornography.  Sentencing guidelines set Bistline’s prison term at five to six years, although judges have discretion.

His case pingponged from district court to the 6th U.S. Circuit Court of Appeals twice after federal Judge James Graham refused to sentence Bistline to lengthy prison time. Instead, he sentenced him in 2010 to one day in prison, 30 days of home confinement and 10 years of supervised probation.

Assistant U.S. Attorney Deborah Solove appealed, arguing that prison time was needed, and the 6th Circuit ordered Graham to resentence Bistline.  In 2013, Graham ordered the same sentence with three years of home confinement. Solove appealed again, and the 6th Circuit ruled that the sentence still was not adequate.

Graham was removed from the case, paving the way for Smith’s sentence yesterday.  “The 6th Circuit has clearly spoken and is requiring me to impose a custodial sentence,” Smith said.  “I hope my colleagues and the sentencing commission continue to shed light on these very important policies.”  Smith then stayed the sentence and said Bistline could remain out on bond until his appeal is decided.

Tyack had asked Smith to sentence his client to one day in prison and 10 years of supervised probation.  “At the end of the day, the Court of Appeals is attempting to dictate to this court what sentence it should impose,” Tyack said. “It’s inappropriate.”

Tyack said he hopes the Supreme Court will arrive at that conclusion in Bistline’s case. “He’s caught up in a legal fight that will ultimately define the boundaries between the court of appeals and district court,” Tyack said.

Bistline, a former Michigan schoolteacher with no criminal record, was arrested after a task force investigating online crimes against children downloaded images of child pornography that had come from Bistline’s home computer. A search of the computer revealed 305 images and 56 videos of children posing naked or involved in sex acts with adults. Solove said Bistline sought out child pornography for more than a year for sexual gratification. She asked for a five-year prison sentence.

Tyack said in court documents in May that “a 71-year-old inmate with Mr. Bistline’s health problems is likely to suffer greater punishment than the average inmate because the Bureau of Prisons often fails to provide adequate or even necessary medical treatment.” Bistline has a pacemaker, high blood pressure and hearing loss, among other medical problems.

Graham has been outspoken about Bistline’s case and about the federal sentencing guidelines for defendants who have been charged with possession of child pornography. He wrote a lengthy law-review article about the case that was published in December, and he has spoken about the guidelines at court hearings for other defendants charged with child-porn possession.

August 28, 2014 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, August 27, 2014

"Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash"

The title of this post is the title of this notable new essay about federal sentencing and appellate practices by Alison Siegler available via SSRN.  Here is the abstract:

For over twenty-five years, federal courts of appeals have rebelled against every Supreme Court mandate that weakens the United States Sentencing Guidelines. Since the Court made the Guidelines advisory in United States v Booker, the rebellion has intensified, with the appellate courts consistently ensuring adherence to the Guidelines by over-policing sentences that fall outside the Guidelines and under-policing within-Guidelines sentences.  The courts of appeals are now staging a new revolt, creating appellate rules — carve-outs — that enable them to reject meritorious challenges to within-Guidelines sentences.

Part I describes the previous rebellions.  Part II introduces the current rebellion.  Part II.A discusses what I term the “stock carve-out,” an appellate rule that violates the sentencing statute and the Sixth Amendment by allowing sentencing judges to ignore mitigating arguments regarding defendants’ personal characteristics.  Part II.B discusses the “§ 3553(a)(6) carve-out,” a rule that similarly violates the statute and precedent by allowing sentencing judges to ignore disparity arguments.  Part III concludes.

August 27, 2014 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 (3) | TrackBack

Tuesday, August 26, 2014

Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer

An interesting and challenging federal sentencing is scheduled this week in upstate New York, and one of many reasons the case is noteworthy is because federal prosecutors are requesting a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense.  This recent local article, headlined "U.S. asks for Nguyen to get 10 years," provides the context and details: 

Federal prosecutors want a judge to ignore sentencing guidelines and sentence Dawn Nguyen to 10 years in prison. While Nguyen likely did not know that firearms she bought for William Spengler Jr. would be used in an ambush of volunteer firefighters, she did "place two tactical military-style weapons in the capable hands of a man who she knew had already killed his own grandmother," say court papers filed Thursday by Assistant U.S. Attorney Jennifer Noto.

Nguyen is scheduled to be sentenced in U.S. District Court on Thursday for her conviction in three federal crimes: lying on a federal firearms transaction when she bought a shotgun and semiautomatic rifle in June 2010; passing those weapons onto a man — Spengler — whom she knew was a convicted felon; and possessing the guns while she was a marijuana user.

The request for a 10-year sentence sets up a rare occurrence in federal court — a decision by a judge as to whether the crimes were so extraordinary that the guidelines should be bypassed.  The guidelines, while only advisory, are designed to ensure comparable punishments for comparable crimes.  A judge has the discretion in unusual cases to sentence up to the maximum, which for Nguyen is 10 years for each crime.

To make his decision, U.S. District Judge David Larimer will have to weigh the question that has long been central to Nguyen's offenses: Should she be held responsible for the Christmas Eve 2012 violence spree during which Spengler killed his sister and two volunteer firefighters?...

Nguyen has pleaded guilty to the federal crimes. She also was convicted in state Supreme Court of lying on the firearms purchase form when she said the guns were for her. State Supreme Court Justice Thomas Moran sentenced her to 16 months to four years in state prison.

In June 2010, Nguyen and Spengler went to Gander Mountain in Henrietta where she bought the weapons for Spengler, who could not own guns because of his past crimes. On the morning of Christmas Eve 2012, Spengler fatally shot his sister, Cheryl, then started a blaze that largely destroyed his Lake Avenue home and others along the Lake Road strip. He then lay in wait for firefighters, ambushing them with the guns bought by Nguyen. He fatally shot West Webster volunteer firefighters Michael Chiapperini, 43, and Tomasz Kaczowka, 19.

The 10-year sentence "is what the victims have asked for," U.S. Attorney William Hochul Jr. said Friday of the families of the slain firefighters.  "It's absolutely critical that the judge keep in mind the chain of events started by Dawn Nguyen," Hochul said.

In a letter to the court, Nguyen, now 25, said that Spengler told her he wanted the guns for hunting, and she did not know enough about guns to find that unusual.  She wrote that she knew Spengler had been imprisoned for the death of his grandmother, but she did not know exactly what he had done.

Her attorney, Matthew Parrinello, said Friday that the request by prosecutors for a 10-year sentence is a "media grab."

"She committed a crime and she has already been punished," he said, noting Nguyen's state prison sentence. Parrinello wants Larimer to use the sentencing guidelines, and have the federal sentence run concurrent with her state sentence.

Prosecutors are asking that the federal sentence not be served until after Nguyen completes her state sentence, which would further increase the time she has to spend in prison.

The 25-page sentencing brief submitted by federal prosecutors in this notable case is available at this link and it make for an interesting read.

August 26, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, August 24, 2014

Will third time be a charm in federal sentencing of child porn defendant Richard Bistline?

Regular readers and those who follow closely federal sentencing of child pornography offender will recall the name Richard Bistline: as detailed in posts linked below, the Bistline's sentencing created a kind of battle royale between US District Judge James Graham and the Sixth Circuit.  This coming week, as reported in this Columbus Dispatch article, Bistline is scheduled to be resentenced yet again, this time by a different district judge after Judge Graham's prior sentences were twice found to be substantively unreasonable by the Sixth Circuit.  Here are excerpts from the Dispatch article providing the backstory:

Are federal sentencing guidelines for possessing child pornography too harsh?  Calling the guidelines “draconian,” U.S. District Judge James L. Graham has become increasingly vocal in his criticism from the federal bench in Columbus.

Possessing child porn is vastly different from distributing or producing it, Graham said in an interview last week. “The purveyors or producers of these images deserve the most severe punishment we can give them.  My concern is the people who end up possessing it.”

Richard Bistline, a Knox County man, is to be in federal court on Wednesday to be sentenced for the third time for child-porn possession.  His case thrust Graham into the spotlight in 2010 after the judge sentenced Bistline, of Mount Vernon, to one day in prison, 30 days of home confinement and 10 years of probation.  The recommended sentence under federal guidelines was five to six years.

Assistant U.S. Attorney Deborah A. Solove appealed Graham’s sentence to the 6th U.S. Circuit Court of Appeals, which ruled that the penalty did not reflect the seriousness of the offense.  The appeals court ordered Graham to resentence the defendant.  But a defiant Graham again sentenced Bistline to a single day in prison, although he increased the home confinement to three years.  Solove again appealed, and the 6th Circuit court again ruled that Graham’s sentence was too lenient.  The court removed Graham from the case.

Judge George C. Smith is to sentence Bistline on Wednesday....

Graham says the guidelines for child-porn possession are outdated.  Adding points for looking at child porn on a computer is unjustified, he said, because nearly all of it is accessed that way.  Adding points for possession of numerous images is unjustified because “current technology produces numerous images with one key stroke or mouse click,” he said....

In its second Bistline ruling, the appeals court wrote that possessing child porn “is not a crime of inadvertence, of pop-up screens and viruses that incriminate an innocent person.”  Possession becomes a crime “when a defendant knowingly acquires the images — in this case, affirmatively, deliberately and repeatedly, hundreds of times over, in a period exceeding a year."

Graham isn’t alone in his contention that the guidelines are outdated.  A 2013 U.S. Sentencing Commission report on federal child-porn guidelines noted that many of the sentencing enhancements designed to further punish the worst possessors now apply to most offenders....

Other men who have pleaded guilty to one count of child-porn possession in federal court in Columbus, as Bistline did, have received multiple-year sentences.  Among them: former special deputy sheriff Todd R. German of Union County, sentenced last year to four years; former Reynoldsburg teacher Matthew Fisher, sentenced in 2011 to three years; and former Columbus doctor Philip Nowicki, sentenced in 2011 to two years.

Graham said most of the child-porn-possession defendants he sees have no previous criminal record and “are involved in viewing these images as a result of what appears to be a form of addiction I think is becoming more and more prevalent in today’s society, affecting people of all ages.”  Just by being found guilty, he said, they face ruined lives, for both themselves and their families.  “They need to stop it,” he said. “The men who are doing this are going to get caught.”

Prior related posts:

August 24, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Thursday, August 14, 2014

US Sentencing Commission finalizes its policy priorities for coming year

As detailed in this official press release, the "United States Sentencing Commission today unanimously approved its list of priorities for the coming year, including consideration of federal sentences for economic crimes and continued work on addressing concerns with mandatory minimum penalties." Here is more from the release:

The Commission once again set as its top priority continuing to work with Congress to implement the recommendations in its 2011 report on federal mandatory minimum penalties, which included recommendations that Congress reduce the severity and scope of some mandatory minimum penalties and consider expanding the “safety valve” statute which exempts certain low-level non-violent offenders from mandatory minimum penalties....

The Commission also set out its intention to consider potential changes to the guidelines resulting from its multi-year review of federal sentences for economic crimes. “For the past several years, we have been reviewing data and listening to key stakeholders to try to determine whether changes are needed in the way fraud offenses are sentenced in the federal system, particularly in fraud on the market cases,” Saris said.  “We look forward to hearing more this year from judges, experts, victims, and other stakeholders on these issues and deciding whether there are ways the economic crime guidelines could work better.”

The Commission will continue to work on multi-year projects to study recidivism comprehensively, including an examination of the use of risk assessment tools in the criminal justice system.  The Commission will also consider whether any amendments to the guidelines or statutory changes are appropriate to facilitate consistent and appropriate use of key sentencing terms including “crime of violence” and “drug trafficking offense.”

The Commission is undertaking new efforts this year to study whether changes are needed in the guidelines applicable to immigration offenses and whether structural changes to make the guidelines simpler are appropriate, as well as reviewing the availability of alternatives to incarceration, among other issues.

The official list of USSC priorities is available at this link, and I found these items especially noteworthy (in addition to the ones noted above):

(4) Implementation of the directive to the Commission in section 10 of the Fair Sentencing Act of 2010, Pub. L. 111–220 (enacted August 3, 2010) (requiring the Commission, not later than 5 years after enactment, to “study and submit to Congress a report regarding the 3 impact of the changes in Federal sentencing law under this Act and the amendments made by this Act”)....

(10) Beginning a multi-year effort to simplify the operation of the guidelines, including an examination of (A) the overall structure of the guidelines post-Booker, (B) cross references in the Guidelines Manual, (C) the use of relevant conduct in offenses involving multiple participants, (D) the use of acquitted conduct in applying the guidelines, and (E) the use of departures.

August 14, 2014 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, August 13, 2014

Noting the push for reforming the fraud federal sentencing guidelines

This lengthy new AP article, headlined "Sentencing Changes Sought for Business Crimes," discusses the on-going push to reform the federal sentencing guidelines for fraud offenses.  Here are excerpts:

The federal panel that sets sentencing policy eased penalties this year for potentially tens of thousands of drug dealers.  Now, defense lawyers and prisoner advocates are pushing for similar treatment for an arguably less-sympathetic category of defendants: swindlers, embezzlers, insider traders and other white-collar criminals.

Lawyers who have long sought the changes say a window to act opened once the U.S. Sentencing Commission cleared a major priority from its agenda by cutting sentencing ranges for nonviolent drug dealers.  The commission, which meets Thursday to vote on priorities for the coming year, already has expressed interest in examining punishments for white-collar crime. And the Justice Department, though not advocating wholesale changes, has said it welcomes a review.

It's unclear what action the commission will take, especially given the public outrage at fraudsters who stole their clients' life savings and lingering anger over the damage inflicted by the 2008 financial crisis.

Sentencing guidelines are advisory rather than mandatory, but judges still rely heavily on them for consistency's sake.  The discussion about revamping white-collar sentences comes as some federal judges have chosen to ignore the existing guidelines as too stiff for some cases and as the Justice Department looks for ways to cut costs in an overpopulated federal prison system....

The commission's action to soften drug-crime guidelines is a signal that the time is ripe, defense lawyers say.  Just as drug sentences have historically been determined by the amount of drugs involved, white-collar punishments have been defined by the total financial loss caused by the crime.  Advocates hope the commission's decision to lower sentencing guideline ranges for drug crimes, effectively de-emphasizing the significance of drug quantity, paves the way for a new sentencing scheme that removes some of the weight attached to economic loss.

A 2013 proposal from an American Bar Association task force would do exactly that, encouraging judges to place less emphasis on how much money was lost and more on a defendant's culpability.  Under the proposal, judges would more scrupulously weigh less-quantifiable factors, including motive, the scheme's duration and sophistication, and whether the defendant actually stole money or merely intended to.  The current structure, lawyers say, means bit players in a large fraud risk getting socked with harsh sentences despite playing a minimal role....

No one is seeking leniency for imprisoned financier Bernie Madoff, who's serving a 150-year sentence for bilking thousands of people of nearly $20 billion, or fallen corporate titans whose greed drove their companies into the ground.  But defense lawyers are calling for a sentencing structure that considers the broad continuum of economic crime and that better differentiates between, for example, thieves who steal a dollar each from a million people versus $1 million from one person.

Any ambitious proposal will encounter obstacles.  It's virtually impossible to muster the same public sympathy for white-collar criminals as for crack-cocaine defendants sentenced under old guidelines now seen as excessively harsh, which took a disproportionate toll on racial minorities.  The drug-sentencing overhaul also was promoted as fiscally prudent, because drug offenders account for roughly half the federal prison population.  Tea Party conservatives and liberal groups united behind the change.

In comparison, the clamor for changing white-collar guidelines has been muted. The Justice Department, already criticized for its paucity of criminal prosecutions arising from the financial crisis, has said it's open to a review but has not championed dramatic change. "I don't think there's a political will for really cutting back or retooling the guidelines," said Columbia University law professor Daniel Richman.

August 13, 2014 in Federal Sentencing Guidelines, Offender Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, August 12, 2014

Eleventh Circuit finds probation sentence for public corruption substantively unreasonable

All federal sentencing fans and white-collar practitioners will want to be sure to check out a lengthy opinion today from the Eleventh Circuit in US v. Hayes, No. 11-13678 (11th Cir. Aug 12, 2014) (available here). This start to the majority opinion in Hayes highlights why the substance of the ruling is noteworthy:

“Corruption,” Edward Gibbon wrote more than two centuries ago, is “the most infallible symptom of constitutional liberty.” EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE, Vol. II, Ch. XXI, at 805 (David Womersley ed., Penguin Classics 1995) [1781].  And so, although unfortunate, it is perhaps not surprising that, even today, people continue to pay bribes to government officials with the expectation that they will make decisions based on how much their palms have been greased, and not what they think is best for the constituents they serve.

In this criminal appeal involving corruption in Alabama’s higher education system, we consider whether the district court abused its discretion by imposing a sentence of three years of probation (with a special condition of six to twelve months of home confinement) on a 67-year-old business owner who — over a period of four years — doled out over $600,000 in bribes to a state official in order to ensure that his company would continue to receive government contracts, and whose company reaped over $5 million in profits as a result of the corrupt payments.  For the reasons which follow, we hold that such a sentence was indeed unreasonable.

Adding to the fun and intrigue of the ruling, Judge Tjoflat has a dissent that runs almost twice as long as the extended majority opinion.  Here is how it gets started (with footnotes omitted):

I fully agree with the court that the sentence of probation Hayes received in this case of massive public corruption is shockingly low and should not have been imposed.  In appealing the sentence, the Government treats the District Court as the scapegoat, as if placing Hayes on probation was all the court’s doing.  The truth is that it was the Government’s doing.  To ensure that Hayes was given adequate credit for cooperating in its investigation, the Government deliberately led the District Court to abandon the Sentencing Guidelines, which called for a prison sentence of 135 to 168 months, and then to ignore the Supreme Court’s explicit instructions, in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007), on the procedure to use in fashioning an appropriate sentence.  This set the stage for the court’s adoption of a fictitious Guideline range of 41 to 51 months and its creation of a downward variance to a sentence of probation.

In appealing Hayes’s sentence to this court, the Government deliberately avoids any discussion of the District Court’s procedural error.  To the contrary, it accepts the fictitious Guideline range the court adopted.  All it complains of is the variance from that fictitious range to a sentence of probation, arguing that it is substantively unreasonable.  Because it invited the procedural error, which, in turn, led to the complained-of substantive error, the “invited error doctrine” precludes the Government from prevailing in this appeal.  Yet the court fails to acknowledge that a procedural error has occurred.  Instead, it assesses the substantive reasonableness of Hayes’s procedurally flawed sentence — something the Supreme Court prohibits — and thereby avoids the need to grapple with the Government’s invited error.  I dissent from the court’s failure to invoke the doctrine and to send the Government hence without day.

In part I of this opinion, I briefly recount the facts giving rise to Hayes’s conviction and sentencing. In part II, I describe how the Guidelines are supposed to operate and will show how the Government and the District Court misapplied the Guidelines and set the stage for the sentence at issue.  Part III outlines the role the courts of appeals play in reviewing a defendant’s sentence, pinpoints the procedural errors in this case, and explains why the invited error doctrine precludes the Government from capitalizing on its induced error and obtaining relief.  Part IV concludes.

August 12, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, July 28, 2014

Fascinating Fourth Circuit split over how federal sentencing problems should inform guideline interpretation

I just noticed a notable ruling by a split Fourth Circuit panel from late last week in US v. Valdovinos, No. 13-4768 (4th Cir. July 25, 2014) (available here). The precise legal issue concerning guideline interpretation in Valdovinos is not all that compelling, but how the judges dispute the right way to resolve the issue surely is.  Here is how the panel majority opinion (running 18 pages) concludes:

For the foregoing reasons, we hold that North Carolina’s legislatively mandated sentencing scheme, not a recommended sentence hashed out in plea negotiations, determines whether an offender’s prior North Carolina conviction was punishable by more than a year in prison.  Because Valdovinos’s offense of conviction was indeed punishable by imprisonment exceeding one year, it qualifies as a predicate felony under Section 2L1.2(b)(1)(B) of the Guidelines [thereby enhancing his sentence].  We appreciate the fervor and policy arguments of our friend in dissent.  Indeed, we can agree with many of the latter.  What we cannot agree with is that “application of relevant precedent” does not require the result here.  Carachuri and Simmons do just that.  The judgment of the district court is affirmed.

Here is how Judge Davis's remarkable dissenting opinion (running 30 pages) gets revved up and concludes (emphasis in the original):

Our disagreement as to the outcome in this case stems, I think, less over the content and application of relevant precedent and more from a fundamental disagreement regarding our role as arbiters of a flailing federal sentencing regime.  Where, as here, we have been presented with a choice in how to interpret the interstices of federal sentencing law, and where one choice would exacerbate the harmful effects of over-20 incarceration that every cadre of social and political scientists (as well as an ever-growing cohort of elected and appointed officials, state and federal, as well as respected members of the federal judiciary) has recognized as unjust and inhumane, as well as expensive and ineffectual, this insight can and should inform our analysis.  I deeply regret the panel’s failure to take advantage of the opportunity to do so here....

Here, in a tiny corner of the chaotic morass that is federal sentencing law, Mr. Valdovinos has offered us a measured approach, to a novel issue of federal sentencing law, that adheres to Supreme Court and our relevant circuit precedents and is consistent with our values. If accepted by this panel, his argument, which is surely more than merely “clever”, see ante, at 8, would affect a tiny number of federal cases drawing legal relevance from North Carolina’s historical (and now superseded) sentencing regime. And Mr. Valdovinos’s sentence in this case likely would be reduced to a bottom guideline of 15 months, instead of the bottom guideline sentence he received, 27 months.  He’d soon be on his way home to Mexico, if not already arrived.

That the majority declines the opportunity to decide this case on the foundations discussed herein is regrettable, a choice that not only ignores the growing wisdom informed by widespread acknowledgement of our unjust federal sentencing jurisprudence, but actually hinders its progress.  Would that my friends could see that it’s a new century, complete with a host of profound and valuable insights at our avail.  I discern no compelling reason why, in the performance of our adjudicative responsibilities, which every member of the panel has unfailingly carried out to the best of our ability in this case and in full accordance with our solemn oath to “administer justice,” 28 U.S.C. § 453, we ought not to draw on these insights.

One of them is that sometimes, in our shared quest for justice under law, it requires so little of us to achieve so much.  Respectfully, I dissent.

July 28, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Tuesday, July 22, 2014

Within-guideline sentences remain below 50% according to latest quarterly USSC data

As reported in this post a few months ago, US Sentencing Commission First Quarter FY14 Quarterly Sentencing data included some big news: for the first time, less than half of all federal sentences imposed were technically "within-guideline" sentences.  To be exact, in that quarter, only around 49% of the 18,169 sentences imposed were within-guideline sentences.

Today, the USSC released, via this document, its Second Quarter FY14 Quarterly Sentencing data, and it remains the case that a slight majority of federal sentences are being imposed outside the guidelines. But, as Table 4 on this latest data run reveals, this reality is partially a product of the fact that in the second quarter of FY14 there was a record-high percentage of above-guideline sentences (2.5%) and a record-high percentage of government-sponsored below-guideline sentences (28.6%).  In this last quarter, notably, there was actually a small downtick in the number of below guideline sentences imposed by federal district judges (from 20.7% of all federal cases down to 20.1%).

As I have said before, I believe all the recent talk about the need for federal sentencing reform is likely finding expression in the way both federal prosecutors and federal judges are now using their sentencing discretion.  The data from the last few quarters suggest that, as we hear ever more public policy groups and politicians on both the right and the left echoing AG Eric Holder's call for less reliance on long terms of incarceration, more federal prosecutors and federal judges feel ever more justified in seeking/imposing more sentences below the guidelines.

July 22, 2014 in Booker in district courts, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, July 21, 2014

How many of nearly 50,000 federal prisoners need a lawyer to help with drug sentence reduction efforts? How many will get a lawyer?

The questions in the title of this post are my first "practical aftermath" questions in the wake of the US Sentencing Commission's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive (basics here).  As hard-core federal sentencing fans likely already know, most lower federal courts have ruled that federal prisoners do not have a Sixth Amendment right to counsel applicable at the sentence modification proceedings judges must conduct to implement reduced retroactive sentencing guidelines.  Consequently, none of the nearly 50,000 federal drug offense prisoners who may soon become eligible for a reduced sentence have any right to legal assistance in seeking this reduced sentence.

Fortunately for many federal prisoners seeking to benefit from previous guideline reductions, many federal public defender offices have traditionally made considerable efforts to provide representation to those seeking reduced sentences.  But even the broadest guideline reductions applied retroactively in the past (which were crack guideline reductions) applied only to less than 1/3 of the number of federal prisoners now potentially eligible for reductions under the new reduced drug guidelines.  I suspect that pubic defenders are unlikely to be able to provide significant legal help to a significant number of drug offenders who will be seeking modified sentences under the new reduced drug guidelines.

I raise this point not only to highlight the legal services need created by the USSC's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive, but also to wonder aloud whether lawyers who have been gearing up to help with clemency applications might be now usefully "detailed" to help with retroactive application of reduced drug sentences.  In contrast to clemency petitions, in which legal arguments are somewhat less important than equitable claims, the proper application of new reduced drug offense guidelines can involve various legal issues that may really need to be addressed by sophisticated legal professionals.

Some recent related posts on reduced drug guideline retroactivity:

July 21, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19) | TrackBack

Friday, July 18, 2014

USSC votes for full (though slightly delayed) retroactivity of new reduced drug guidelines

I just received this early report via a credible source as to what the US Sentencing Commission did this afternoon on the issue of making its new lower guidelines retroactive:

The Commission just voted unanimously to make the "drugs minus 2" amendment retroactive with a single limitation -- no order reducing a sentence can take effect until Nov. 1, 2015.  This is later than the Judicial Conference recommended (they proposed that it effect in May 2015 to give courts and probation time to prepare)....

The Commission predicts that more than 46,000 will be eligible to seek a reduction.  Part of the reason for the delayed effective date is to make sure each inmate is released with a re-entry plan and the opportunity for transitional steps such as halfway houses or home confinement.

UPDATE:  Here is a link to the USSC's official press release about its vote, which starts this way:

The United States Sentencing Commission voted unanimously today at a public meeting to apply a reduction in the sentencing guideline levels applicable to most federal drug trafficking offenders retroactively, meaning that many offenders currently in prison could be eligible for reduced sentences beginning November 2015.

The Commission voted unanimously in April to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types, which may mean lower sentences for most drug offenders going forward.  Today the Commission decided that judges could extend that reduction to offenders currently in prison, but with a requirement that reduced sentences cannot take effect until November 1, 2015.  Under the guidelines, no offender would be released unless a judge reviews the case to determine whether a reduced sentence poses a risk to public safety and is otherwise appropriate.

“This amendment received unanimous support from Commissioners because it is a measured approach,” said Judge Patti B. Saris, chair of the Commission. “It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety.”

Congress has until November 1, 2014 to disapprove the amendment to reduce drug guidelines. Should Congress choose to let the guideline reductions stand, courts could then begin considering petitions from prisoners for sentence reductions, but no prisoners could be released pursuant to those reductions before November 1, 2015.

ANOTHER UPDATE: Here is a link to the official statement in response to this vote from AG Eric Holder, which runs this single paragraph:

“The department looks forward to implementing this plan to reduce sentences for certain incarcerated individuals. We have been in ongoing discussions with the Commission during its deliberations on this issue, and conveyed the department's support for this balanced approach. In the interest of fairness, it makes sense to apply changes to the sentencing guidelines retroactively, and the idea of a one-year implementation delay will adequately address public safety concerns by ensuring that judges have adequate time to consider whether an eligible individual is an appropriate candidate for a reduced sentence. At my direction, the Bureau of Prisons will begin notifying federal inmates of the opportunity to apply for a reduction in sentence immediately. This is a milestone in the effort to make more efficient use of our law enforcement resources and to ease the burden on our overcrowded prison system."

July 18, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, July 17, 2014

Huge reduced drug guideline retroactivity decision expected from US Sentencing Commission on 7/18

As this official public notice reports, on July 18, 2014 at 1pm EDT, the US Sentencing the Commission will hold a public meeting at which "the Commissioners will vote on whether or not to retroactively apply, in whole or in part, [its recent guideline] amendment reducing the drug quantity table by two levels." At the risk of overstating the importance of this vote, I am inclined to assert that it may be the most practically consequential USSC decision in nearly a decade. The (slightly misleading) headlines of these two media discussions of the coming vote helps to highlight why:

It is likely hard for anyone who has not followed federal sentencing very closely for decades to fully appreciate all the dynamic challenges that this vote presents for the US Sentencing Commission (as well as for the US Department of Justice and for all those who work day-to-day the federal sentencing system).  Helpfully, this extended BuzzFeed article by Evan McMorris-Santoro provide a primer on some of the issues swirling around this important USSC vote.  The article's headline highlights its themes: "Despite Rhetoric, Obama Administration Pushes To Keep Thousands Of Felons In Jail Under Old Rules: The Justice Department announced major changes to the way federal drug crimes are punished this year. But the rules for existing convicts might be different — and many White House allies are angry."

Some recent related posts on reduced drug guideline retroactivity:

July 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, July 14, 2014

Are federal drug sentences for mules now too short?

Drugs and dogsThe question in the title of this post is prompted by this notable and fascinating new article in the New York Times headlined "Second Thoughts on Lighter Sentences for Drug Smugglers." Here are excerpts:

For years, a steady parade of drug smugglers have tried all sorts of ways to ferry contraband into the United States through Kennedy International Airport in Queens, posing a challenge not only to Customs and Border Protection officers, but also to federal prosecutors.

To avoid clogging up the court, the United States attorney’s office in Brooklyn has embraced a strategic approach that allows couriers to plead guilty and offer information in return for lighter sentences.  The policy reflected a view among many prosecutors that the mandatory minimum sentences for drug-related offenses — which require prison terms of five years and higher in these smuggling cases — were too harsh on defendants who were typically nonviolent and disadvantaged.

But in recent months, changes in drug sentencing have served to further lower punishments for these couriers.  A year ago, drug couriers regularly faced three years in prison; now they might face guidelines starting at only a few months, or no prison time at all.

The changes are raising questions of whether the pendulum has swung too far.  Some prosecutors say that couriers have little to no incentive to cooperate anymore.  Border patrol officials grumble that they are working to catch smugglers, only to have them face little punishment.  And judges who once denounced the harsh sentencing guidelines are now having second thoughts....

The debate over what constitutes a fair sentence for drug crimes has persisted for decades.  Critics — many of them judges in this court — have said that sentencing guidelines and mandatory minimum punishments had become hugely problematic. Nonviolent drug offenders, like couriers or people selling marijuana on the street, could face longer guideline sentences than an underground gun dealer.  And until recently, possession of five grams of crack warranted a minimum five-year sentence.  To get the same sentence for powdered cocaine possession, 500 grams would be required.

Various reforms have been instituted to address the inequities in sentencing.  In 1994, a “safety valve” provision allowed nonviolent first offenders on drugs — which describes most couriers — to avoid mandatory minimums if they admitted to all prior criminal conduct.  And in 2010, Congress passed legislation toward balancing the crack versus cocaine disparity....

In August, the United States attorney general, Eric H. Holder Jr., ordered prosecutors nationwide to charge couriers and other low-level drug offenders who met certain criteria in a way that did not result in mandatory-minimum sentences.  (Guideline sentences must still be considered, but they are not mandatory.)

Then, in April, the United States Sentencing Commission voted to reduce sentencing guidelines for drug crimes by two points, or several months.  The reduced guidelines go into effect in November, pending congressional approval, but prosecutors in many districts have agreed to apply them now.

The changes made things more difficult in Brooklyn, where prosecutors still wanted to give low-level couriers an incentive to avoid trials and to assist in prosecutions against larger drug distributors. Believing they had to further sweeten the deal, prosecutors agreed to give an additional four points off those reduced sentences for couriers who agreed to cooperate.

As a result, drug-courier defendants can now face sentencing guidelines that suggest no prison time.

My first reaction to this piece is to suggest that it's a nice change of pace for federal judges to now view at least some federal sentencing guidelines to be too lenient and that any problems this creates can and should be addressed through judicial discretion to sentence above the guidelines, case-by-case, as needed and appropriate.  But I imagine this viewpoint is not very satisfying for federal prosecutors and investigators who depend on the threat of severe sentences to get mules to cooperate to their satisfaction.

For additional intriguing and diverse reactions to these intriguing new drug sentencing realities, check out these posts from other informed bloggers:

July 14, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Sunday, July 06, 2014

Interesting account of guidelines accounting facing former NOLA mayor at upcoming federal sentencing

This lengthy local article, headlined "Emotions aside, Nagin sentence likely to come down to math," effectively reviews some of the guideline (and other) factors likely to impact the federal sentencing of former New Orleans mayor Ray Nagin this coming week.  Here are excerpts:

Under the rules, Nagin starts with a base “offense level” of 20 because he was an elected official who took multiple bribes but otherwise has no criminal history — facts that, with the jury verdict, are now undisputed.

The other major factors that will add points to his offense level include the financial “loss” the court assigns to his actions, the court’s judgment as to whether he was an “organizer or leader” in “criminal activity” that involved at least five people, and whether Nagin is found to have obstructed justice by lying to investigators and to the court.

There is some gray area in all of these questions. For instance, the monetary loss can be calculated to include not only bribes paid and received, but also the proceeds of any contracts that resulted from bribes. At a minimum, however, Berrigan will almost certainly find that the loss was greater than $200,000, as the jury convicted Nagin of taking more than that amount in bribes. That would bring his offense level to 32, but it could go significantly higher depending on whether Berrigan decides to include the profits of some or all of the contracts Nagin signed....

Experts say the question of financial loss is among the thorniest in calculating guidelines. The amount of bribes paid is an imperfect measure, for contracts awarded on the basis of bribes are presumed to be inflated to cover the cost of the payoffs. At the same time, the contractor usually completes the work outlined in the contract, making it unfair to count the entire value of the contract as a loss. In Nagin’s trial, the government did not present evidence to show that those who bribed Nagin failed to perform....

Other questions are similarly nuanced. If Berrigan finds Nagin obstructed justice by lying to investigators and to the jury, as prosecutors say he did on more than 25 occasions, the offense level would jump another two points. And if she finds he took a leadership role in a scheme involving five or more people, that would add as many as four more points. Though it’s clear that Nagin’s criminal conduct involved more than five people, experts say there may be wiggle room in that question, too....

Depending on how the judge rules on those questions, Nagin’s final offense level could be as low as 32, or as high as 40 or more. Based on those numbers, the guidelines would call for a sentence ranging from 10 years at the low end to as much as 30 years or even life. A filing by Nagin’s lawyer, Robert Jenkins, suggests that probation officers came up with an offense level of 38, which translates to a range of 20 to 24 years.

Jenkins asked Berrigan to consider a downward departure from that figure based on Nagin’s lack of a criminal history and an argument that the crimes of which he was convicted constituted “aberrant” behavior for an otherwise upstanding citizen. But prosecutor Matt Coman argued in an opposing motion that the guidelines already take into account the mayor’s unblemished past, which they do. Meanwhile, Coman said it was laughable to consider Nagin’s criminal conduct as an aberration, considering that he was convicted of multiple bribery and fraud schemes that unfolded over a period of years....

Apart from applying her own analysis of the guidelines, Berrigan also has some ability to go outside the recommended range, experts said. She could grant a “downward variance” on some basis she deems appropriate, provided that she explains it and the variance is not too great. Federal law spells out a number of factors a judge may consider, from the need to protect the public from further crimes to the deterrent effect of the sentence.

July 6, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Sunday, June 29, 2014

Yet more ACCA messiness out of Maryland

I noted in this post last week this lengthy Baltimore Sun article discussing how the multi-dimensional jurisprudential mess that is application of the Armed Career Criminal Act is messing with federal courts in Maryland.  Now this new Baltimore Sun article, headlined "Federal appeals court ruling could lead to more reduced sentences; Court rules that Maryland burglary convictions should not be used to increase sentences," reviews the latest chapter to rhis saga courtesy of the Fourth Circuit. Here are the basics:

A federal appeals court ruling could add to the number of inmates with legal grounds to seek reduced sentences because of a shifting interpretation of sentencing guidelines and what constitutes a violent crime. The 4th U.S. Circuit Court of Appeals invalidated last week a 3.5-year sentence for Jose Herbert Henriquez, an El Salvadoran who pleaded guilty to illegally re-entering the United States. The lengthy sentence was based in part on a previous burglary conviction.

"A Maryland conviction of first-degree burglary cannot constitute a crime of violence," Judge James A. Wynn Jr. wrote for the majority, remanding the case to a lower court for Henriquez to be resentenced.

The finding follows a Supreme Court decision that gave judges new instructions on how to determine which state laws should count as violent. That finding and a subsequent appeals case has led to dozens of federal inmates from Maryland challenging their sentences, and Wynn's decision raises the possibility of further challenges.

Prosecutors say the technical rulings threaten to undermine efforts to impose long sentences and keep the public safe, but inmate advocates say prisoners who have been unjustly locked away for too long are finding hope in the string of court victories....

The federal sentencing guidelines call for longer sentences in unlawful re-entry cases for defendants previously convicted of a violent crime. Among those crimes, the guidelines include "burglary of a dwelling." Maryland's first-degree burglary law defines the crime as breaking into a dwelling with the intent to commit a crime of violence or a theft.

Wynn, joined by other 4th Circuit judges, found that Maryland law does not sufficiently define dwelling to ensure it's in keeping with a Supreme Court ruling that burglary only includes breaking into a building — and not, for example, a houseboat or an RV.

The Fourth Circuit ruling in US v. Henriquez, No. 13-4238 (4th Cir. June 27, 2014), is available here.

Recent related post:

June 29, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Tuesday, June 24, 2014

How SCOTUS Halliburton ruling could have white-collar sentencing echoes

HallExperienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) sent me an intriguing set of insights about how yesterday's Supreme Court ruling yesterday in Halliburton v. Erica P. John Fund (available here) could possibly impact some white-collar sentencing arguments. Mark kindly allowed me to reprint his analysis here:

White collar defense practitioners should be aware of today’s ruling in in Halliburton v. Erica P. John Fund. While a civil class action case, Halliburton may have some helpful applicability at sentencing. 

The Court in Halliburton has expanded the application of Basic Inc. v. Levinson, 485 U. S. 224 (1988) regarding WHEN plaintiffs can prove damages in “fraud on the market cases” from a defendant’s misrepresentation.  In Basic the Court, held that a class of plaintiffs could  prove reliance of a defendant’s misrepresentation by “invoking a presumption that the price of stock traded in an efficient market reflects all public, material information—including material misrepresentations.”  The presumption effectively allows plaintiffs to side-step proof of actual reliance on any misrepresentations for purposes of establishing damages.  Without class certification, however, individual plaintiffs cannot invoke the presumption thereby making proof of damages far more difficult.  The Court held that, contrary to the Fifth Circuit, Defendant/Petitioner Halliburton could introduce evidence that any misrepresentation lacked “price impact” to prevent certification of the class.

Halliburton could be helpful in securities fraud sentencing cases inasmuch as the government usually lumps all the victims together to determine a collective “loss” for sentencing purposes without introducing any evidence that any particular victim (save for those few who may have testified at any trial) relied on any misrepresentations of the defendant.  Such a collectivization of victim losses, therefore, implicitly invokes the Basic efficient market presumption allowing the government to side-step having to prove reliance by any particular victim.  But just as the Commission’s (relatively new and untested) modified recissory method for calculating loss in securities fraud case is subject to rebuttal, so too is the Basic presumption.  In light of today’s ruling in Halliburton, counsel should consider providing the Court evidence that any misrepresentation by the defendant lacked “price impact” on the victims sufficient to overcome the de facto Basic presumption with respect to collective victim losses.  In this way, the Government would be required to provide evidence how individual victims relied on any misrepresentations. 

To be sure, unlike in sophisticated civil class actions that require precision, since determining loss at sentencing need only be a reasonable estimate, only those victims that would materially affect the loss amount should not be granted the Basic presumption; in those cases the Government would be required to prove reliance.  But this is as it should be inasmuch as years if not decades of your client’s life could be at stake.

June 24, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack

Wednesday, June 18, 2014

"Sentencing Terrorist Crimes"

The title of this post is the title of this notable new article by Wadie E. Said now available via SSRN. Here is the abstract:

The legal framework behind the sentencing of individuals convicted of committing terrorist crimes has received little scholarly attention, even with the proliferation of such prosecutions in the eleven years following the attacks of September 11, 2001. This lack of attention is particularly striking in light of the robust and multifaceted scholarship that deals with the challenges inherent in criminal sentencing more generally, driven in no small part by the comparatively large number of sentencing decisions issued by the United States Supreme Court over the past thirteen years. Reduced to its essence, the Supreme Court’s sentencing jurisprudence requires district courts to make no factual findings that raise a criminal penalty over the statutory maximum, other than those found by a jury or admitted by the defendant in a guilty plea. Within those parameters, however, the Court has made clear that such sentences are entitled to a strong degree of deference by courts of review.

Historically, individuals convicted of committing crimes involving politically motivated violence/terrorism were sentenced under ordinary criminal statutes, as theirs were basically crimes of violence. Even when the law shifted to begin to recognize certain crimes as terrorist in nature — airplane hijacking being the prime example — sentencing remained relatively uncontroversial from a legal perspective, since the underlying conduct being punished was violent at its core. In the mid-1990s, the development and passage of a special sentencing enhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered the opportunity for district courts to significantly increase the penalty for certain activity that fell into a defined category of what was termed “a federal crime of terrorism.” Coupled with the post-9/11 trend of the government using a relatively new offense, 18 U.S.C. § 2339B, the ban on providing material support to designated foreign terrorist organizations, as its main legal tool in the war on terrorism, sentences for such crimes increased significantly, even in situations where there was no link to an act of violence. The application of section 3A1.4 invites a district court to find certain facts, under the preponderance of the evidence standard, which bring the conduct into the category of a federal crime of terrorism, thereby triggering greatly enhanced punishment. A review of the reported decisions involving section 3A1.4 reveals, however, that only in rare cases do courts find the enhancement to be improperly applied. This Article argues that, as currently understood, the application of section 3A1.4 raises serious concerns about its fidelity to the Supreme Court’s Sixth Amendment jurisprudence.

The existence of a terrorism sentencing enhancement also serves as a kind of statutory basis to embolden courts of appeals to overturn a sentence as too lenient, as has been the case in certain high-profile prosecutions, such as those of Ahmad Abu Ali, Lynne Stewart, and Jose Padilla, among others. As the examples in this Article demonstrate, those courts of review that have engaged in this practice either fail to appreciate or disregard the Supreme Court’s instructions to engage in a highly deferential type of review of a district court sentence. At the heart of these opinions lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence. While these sentiments may or may not be accurate, the courts of appeals adopting them cite no evidence or studies in support, creating the impression that a court of review may overturn a sentence in a terrorism case simply because it disagrees with the district court, something the Supreme Court has said is improper. In light of this recent development, this Article recommends that some combination of Congress, the United States Sentencing Commission, and the federal courts establish standards to better help a court decide when a heightened punishment might be warranted, free from unsupported assumptions about the nature of terrorism or a particular defendant.

June 18, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Thursday, June 12, 2014

Two thoughtful criticisms of DOJ's request for only limited retroactivity of proposed lower drug guidelines

As reported here on Tuesday, the Justice Department this week advocated to the US Sentencing Commission that it make its new reduced drug guidelines retroactive only for the lowest-level offenders now serving prison sentences under the old drug guidelines. No doubt because many are eager to see the new drug guidelines made fully retroactive and because I suggested the DOJ half-a-loaf approach was politically and practically astute, I have received two lengthy and thoughtful e-mails from informed advocates which are critical of the DOJ retroactivity position and my reaction to it. With permission, I am posting the comments here.

Federal public defender Sarah Gannett had this to say:

I was the Federal Defender witness at yesterday's USSC hearing on drugs-minus-two retroactivity, and I read your post about the DOJ proposal.  Although I can see how the DOJ proposal might have some facial appeal, I urge you to take a closer look at it.

There is little evidence that the exclusions the Department is proposing are tied in any meaningful way to public safety.  At best, they are overbroad, and will result in deserving inmates being excluded from relief (for example, drug addicts who are in high CHCs because of multiple minor prior convictions related to their addictions).  Indeed, the Commission has acknowledged that criminal history is an imperfect proxy for seriousness of criminal history and risk of recidivism, which is why the Guidelines include a departure provision for over-representation.  Unfortunately, because of the way 1B1.10 is currently written, those who received over-representation departures will be ineligible for relief if the Commission adopts the DOJ proposal.  Similar arguments can be made about the enhancements the DOJ proposes as limiting.

Both David Debold, on behalf of PAG, and Mary Price, for FAMM, focused on the DOJ's proposal in their testimony yesterday.  You may wish to speak to either or both of them. I also encourage you to read the Defender testimony, which is available on the Commission's website.  Although we did not know what the Department's proposal would be until it was announced yesterday, we anticipated and addressed many of the points the DOJ proposal raises (see especially pp. 5-6).

Full retroactivity is the just result, which the Criminal Law Committee of the Judicial Conference recognized.  In fact, in her oral testimony, Judge Keeley indicated that the CLC considered a proposal like the DOJ's, but rejected it out of fairness concerns.  The CLC recommended a different compromise -- which delays implementation just until the institutional players can adequately prepare to address the volume of cases.  This approach is more principled than the limitations suggested by the Department.  It is discussed in the CLC's statement, which also was posted.  (Defenders took the position that, based on experience gained in the crack retroactivity process and other factors, the players could find a way to manage the caseload.  See our statement at pp. 9-13, 14-15.)

Those who are concerned about community safety should remember that the retroactivity statute and policy statement require the sentencing judge to review and consider the appropriateness of early release in every individual case, an obligation that courts took seriously following the 2007 and 2011 retroactive crack amendments.

Former US Pardon Attorney Margaret Colgate Love had this to say:

I am genuinely puzzled by the Department's proposed "compromise" on the retroactivity issue, and surprised and disappointed by your response to it.  I suggest that you compare the Department's proposal for guidelines retroactivity with the President's eight commutations last December.

Only one or possibly two of the eight individuals whose sentences were commuted -- all presumably pursuant to a favorable Department recommendation -- would qualify for relief under the DOJ proposed "compromise".  Clarence Aaron was enhanced for obstruction, Gray and Wintersmith had guns, and Gilbert, Wheeler and Patterson and probably George were either career offenders or CHC III or above.  Of the eight, only Jason Hernandez (a gang member charged with massive amounts of drug, with juvie gun priors) would appear to be a candidate for relief under the DOJ proposed compromise, a curious result to say the least.

It certainly raises a question why the Department thinks it is appropriate to ask the President to make these tough case-by-case calls but does not trust district judges to make them.  Somehow that does not seem "politically and practically astute" (your words), or respectful of institutional roles and competencies.  Moreover, if DOJ really wanted to lighten the burden imposed on its own staff by its unprecedented and possibly ill-advised invitation to all federal prisoners to apply for clemency, and to the private bar to represent them, one would think it should be asking the courts to do more of this work, not less.

Perhaps this means that DOJ will interpret and apply its six new clemency criteria narrowly, and recommend only those prisoners who fit in this minor-record-no-gun-no-obstruction category -- those few who would not benefit from the guidelines reduction because of a mandatory minimum.  It is not at all clear to me that such a crabbed interpretation of the clemency initiative would be responsive to the President's clear signal in the December 8 grants about what he wants from his Justice Department.

If the only ones recommended for clemency are those who satisfy the criteria commended to the Commission by the Department, this will be a cruel hoax on federal prisoners, who are expecting a lot more.  It will also be deeply unfair to the hundreds of private lawyers who have agreed to donate their time to learn a new skill in preparation for telling a prisoner's story, in what may turn out to be a false hope that one of their clients will win the clemency lottery.

I commend Judge Irene Keeley for saying that full retroactivity is a "moral issue" and the courts’ “burden to bear.”  Good for the POs too, whose professionalism is encouraging. I agree with Judge Keeley that it would be fundamentally unfair to categorically deny full retroactivity to prisoners, just as it would be fundamentally unfair to categorically exclude certain prisoners from clemency consideration.

I hope the Department -- and the President -- will come to see that the apparatus already exists to achieve sentencing fairness, and it is in the courts not the executive.  I hope also that this President does not turn out to be the third in a row to be embarrassed by his Justice Department's clemency program.

Some recent related posts:

June 12, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, June 11, 2014

Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform

Long-time readers know that we used to be able to get Bill Otis's tough-on-crime perspective on sentencing reform via the comments to posts here, but now we all need to head over to Crime & Consequences to see his take on current sentencing events.  Not surprisingly, the discussion by US Sentencing Commission about whether to make its new lower drug guidelines retroactive has Bill going strong, and here are a sampling of him recent post from C&C:

The titles of all these posts provide a flavor of their contents, but I urge all folks following closely the debates over recent federal sentencing reform to click through and read all Bill has to say on these topics.  Notably, the first post listed above highlights how perspectives on broader reform debates will necessarily inform views on particular positions taken on smaller issues.  Bill assails DOJ for advocating for "large scale retroactivity" when it decided to yesterday to "support limited retroactivity of the pending drug guideline amendment."  In notable contrast, I have received a number of e-mails from advocates of federal sentencing reform today (some of which I hope to soon reprint in this space) that assail DOJ for not advocating for complete retroactivity.

June 11, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack

Tuesday, June 10, 2014

DOJ advocates for "limited retroactivity of the pending drug guideline amendment"

As detailed in this prior post, today the US Sentencing Commission is conducting a public hearing to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive its new proposed guideline that reduces most drug sentences across the board.  And though that hearing is on-going, the hearing agenda available here now has links to most of the witnesses' submitted written testimony, including the position advocated by the Department of Justice.  

As detailed in this official DOJ press release and this written testimony via US Attorney Sally Yates, the Justice Department is urging the Commission to make the new reduced drug guidelines retroactive for some, but not all, prisoners now serving sentences under the old drug guidelines.  Here are the basics of the compromise advocated by DOJ via its submitted testimony:

After extensive discussions and consideration of the various policy interests at stake in this matter – including public safety, individual justice for offenders, and public trust and confidence in the federal criminal justice system – we support limited retroactivity of the pending drug guideline amendment. As I will discuss further, we think such an approach strikes the right balance of policy interests and can be rigorously and effectively implemented across the federal criminal justice system within existing resource constraints....

Assessing whether the amendment should be applied retroactively requires balancing several factors.  The primary factor driving our position to support retroactive application of the amendment, albeit limited retroactivity, is that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders.  While we believe finality in sentencing should remain the general rule, and with public safety our foremost goal, we also recognize that the sentences imposed for some drug defendants under the current sentencing guidelines are longer than necessary, and this creates a negative impact upon both the public’s confidence in the criminal justice system and our prison resources....

Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized. Release dates should not be pushed up for those offenders who pose a significant danger to the community; indeed, we believe certain dangerous offenders should be categorically prohibited from receiving the benefits of retroactivity....

Balancing all of these factors, the Department supports limited retroactive application of the 2014 drug guideline amendment. We urge the Commission to act consistently with public safety and limit the reach of retroactive application of the amendment only to those offenders who do not pose a significant public safety risk. The Commission has the authority to direct limited retroactivity under both 18 U.S.C. § 994(u) and Dillon, which provide authority to the Commission to prescribe the “circumstances” under which an amended guideline is applied retroactively. We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c); (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.

With these limitations, all of which should have been determined in prior court action and should be documented in the court file in most cases, courts will be able to determine eligibility for retroactivity based solely on the existing record and without the need for transporting a defendant to court or holding any extensive fact finding. Retroactivity would be available to a class of non-violent offenders who have limited criminal history, did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending. While the factors we suggest are not a perfect proxy for dangerousness, they are a reasonable proxy based on the Commission’s own research, and identifying them will not require new hearings.

Though I suspect the intriguing middle-ground position embraced here by DOJ will disappoint the usual suspects advocating fully against or fully for retroactivity, I view this DOJ proposal to be both politically and practically astute. In part because SO very many current federal prisoners may be eligible for a sentence reduction based on the new guidelines, I think it make sense (and is consistent with congressional policies and goals) for any retroactivity rule to seek to bring some equities into the application of the new law in an effort to ensure the most deserving of previously sentenced defendants get the benefit of the new guidelines. The DOJ position here seems thoughtfully designed to try to achieve that balance.

Some recent related posts:

June 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Monday, June 09, 2014

Big US Sentencing Commission hearing Tuesday on reduced drug guideline retroactivity

As reported in this official notice, a public hearing of the United States Sentencing Commission is scheduled for Tuesday, June 10, 2014, and the "purpose of the public hearing is for the Commission to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive Amendment 782."  That Amendment, in short form, reduces the guidelines applicable to drug trafficking offenses by two levels in most settings.  And, as set forth in this detailed USSC staff analysis, as many as "51,141 offenders sentenced between October 1, 1991 and October 31, 2014, would be eligible to seek a reduction in their current sentence if the Commission were to make the 2014 drug guidelines amendment retroactive.

The hearing agenda and the list of the 16 witnesses scheduled now to testify at this hearing is available here. I am pretty confident that most of these witnesses will advocate that the new drug guidelines be made retroactive, but I am not entirely certain about what positions will be advocated by the Department of Justice and some of the law enforcement witnesses. In addition, advocates on both sides likely will articulate in different ways with distinct emphasis why they think retroactivity for these new reduced drug guidelines would be a good or bad idea.

I am hopeful that by this time tomorrow the written testimony to be submitted by the witnesses with be linked on the USSC's website.  In the meantime, I will be re-reading  this detailed USSC staff analysis in order to have a better understanding of the 50,000+ federal prisoners whose fates could be impacted by the retroactivity decision.

June 9, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, June 03, 2014

Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"

This notable new commentary in The Huffington Post by Megan Quattlebaum makes the case for the US Sentencing Commission to make fully retroactive its new guidelines amendment reducing most federal drug sentencing recommendations. Here are excerpts:

In a landmark decision, the United States Sentencing Commission voted last month to lower the recommended penalty for federal drug crimes by about 17 percent.  As of now, the change will apply only to defendants who are sentenced after November 1, 2014.  But the Commission is also exploring whether the reduction should be made retroactive, and it issued two reports two reports two reports (available here and here) analyzing that question last week.

Four things struck me as I read the reports. First, the Commission estimates that, if the changes were made retroactive, 51,141 individuals who are currently in prison (an incredible 23 percent of the total population) would be eligible to seek a reduction in their sentences.  That a large number of people will be affected is not surprising -- almost half of all federal prisoners (48 percent) are incarcerated for drug crimes.  But what is surprising is that even if all 51,141 were to get reduced sentences, we would have barely begun to bring the federal prison population down to pre-drug war levels.  We incarcerated approximately 25,000 people in federal prisons in 1980.  By 2013, that number had risen to over 219,000.  As a result, the federal prison system is operating at 36 percent over capacity, costing taxpayers $6.4 billion per year and climbing....

Second, a significant percentage (about 25 percent) of the 51,141 potentially eligible for earlier release are non-citizens who may be subject to deportation.  Many rightly question the wisdom of incarcerating large numbers of ultimately deportable non-citizens at taxpayer expense....

Third, the average age of an inmate who will be eligible for a sentence reduction is 38 years.  In the universe of criminal justice, 38 is old.  Researchers have consistently found that involvement in street crimes, like drug offenses, generally begins in the early teenage years, peaks in young adulthood, and dissipates before the individual turns 30. Explanations for this phenomenon are varied, but "[a] large body of research shows that desistance from crime... is... tied to the acquisition of meaningful bonds to conventional adult individuals and institutions, such as work, marriage and family..."  These older offenders should have a low risk of recidivism generally.  And the more that we can do to foster their re-engagement with their families and communities, the lower that risk will be.

Fourth, 20 percent of the individuals who may be eligible for earlier release come from one state: Texas.  True, Texas is big and populous, but it's also punitive.  The more heavily populated state of California only accounts for five percent of potential sentence reductions, while New York accounts for about four percent.  Reading the charts that accompany the Sentencing Commission report is a statistical window into the American drug war, in which hang 'em high southern states feature prominently, if not proudly.

The Sentencing Commission is accepting public comments until July 7, 2014 on whether to make these changes to drug sentences retroactive. Some will no doubt argue against retroactivity, either out of fear that releasing individuals earlier will permit them re-offend sooner or out of concern for the serious workload that federal courts will have to take onin order to process so many applications for sentence reduction.  But if we have revised our view of what constitutes a just sentence for a drug offense, then we cannot and should not justify continuing to incarcerate 51,141 people under an old, rejected understanding. We should never be afraid of too much justice.

I am grateful to see this thoughtful effort to dig into the US Sentencing Commission data concerning who could benefit from the new drug guidelines being made retroactive. And I think this commentary rightly highlights that the nationality status and the age profile of federal drug prisoners provide some important extra reasons for being comfortable with the new guidelines being made retroactive.

That said, the commentary about Texas justice and the state-by-state analysis strikes me a potentially a bit misguided. I suspect and fear that federal prosecution of drug crimes in Texas is higher than in other states not only because of the likely international dimensions to many drug crimes around the Mexican border but also because state drug laws in other states may be uniquely harsh. This commentary compares data from California and New York, but these two states have had a history of some notorious tough state sentencing laws (i.e., the Three Strikes Law in California, the Rockefeller Laws in NY). There may be so many federal drug prisoners from Texas not because state sentencing policies and practices are so tough, but because federal policies and practices relative to state norms are so much tougher and because local drug crimes are not really local along the border.

My point here is to highlight that state-by-state examination of federal drug sentencing patterns may reflect lots of distinct and dynamic factors.  Notably, the Commission data indicate that about the same number of federal drug prisoners from Iowa will be impacted by retroactivity of the new drug guidelines as from Arkansas and Mississippi combined.  These data alone hardly reveal the corn belt is the real "hang-em-high" center for the national drug war.  Ultimaely, ever-changing local, state and national drug use and trafficking patterns along with dynamic prosecutorial policies and priorities likely better explain state-by-state federal prisoner data than any social or political conventional wisdom.

Some various somewhat recent related posts:

June 3, 2014 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Monday, June 02, 2014

Tenth Circuit explains what's the matter with Kansas prior convictions as enhancers

Download (1)Thanks to a helpful reader, I learned that today the Tenth Circuit handed down a significant opinion concerning the use of prior Kansas offenses in career offender guideline calculations in US v. Brooks, No. 13-3166 (10th Cir. June 2, 2014) (available here).  Here is how the opinion in Books starts and ends:

Did Defendant Damian L. Brooks commit enough prior qualifying felonies to be considered a “career offender” under the Federal Sentencing Guidelines?  The district court below said yes, relying on United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), to classify a prior Kansas conviction of Defendant as a felony because it was punishable by more than one year in prison. On appeal, Defendant admits Hill mandates this classification. He argues, however, that Hill was abrogated by the Supreme Court in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010).  We agree.  As such, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reverse and remand for resentencing....

In conclusion, Hill — which looked to the hypothetical worst possible offender to determine whether a state offense was punishable by more than a year in prison — cannot stand in light of Carachuri-Rosendo.  We now hold, in line with our pre-Hill precedent, that in determining whether a state offense was punishable by a certain amount of imprisonment, the maximum amount of prison time a particular defendant could have received controls, rather than the amount of time the worst imaginable recidivist could have received.  As such, Defendant’s prior Kansas conviction for eluding police is not a felony for purposes of U.S.S.G. § 4B1.1(a).  The district court’s imposition of a career offender enhancement was therefore in error and is REVERSED. This case is REMANDED for resentencing.

The helpful reader who alerted me to this opinion noted that "for those of us who deal with Kansas state convictions, it is (as Ron Burgundy would say), kind of a big deal."  Here is part of this reader's explanation for why:

Previous 10th Circuit authority held that a conviction for a Kansas on grid "felony" was punishable by more than one year if a sentence more than one year could be imposed on any hypothetical defendant.  That is, the analysis was not limited by a defendant's actual criminal history category on the state guidelines grid.  If more than one year could be imposed for any criminal history category, the conviction = felony for purposes of federal law, even though a particular defendant may have only been exposed to a sentence less one year or less....

This ruling will impact multiple areas of federal prosecution and sentencing.  For instance, if the high end of a defendant's KS gridbox is 12 months, then the conviction is not a disabling conviction for purposes of 18 USC 922(g)(1).  Likewise, such a conviction would not be a predicate conviction for purposes of the Armed Career Criminal Act or the Career Offender guidelines enhancement.

A more limited effect will be that a few drug-grid convictions will not be a "prior drug felony" that can enhance a controlled substance offense under 21 USC 851....  Certain attempts/conspiracies/solicitations to commit drug crimes would also not be a federal felony for enhancement purposes.

Because I do not know how many federal sentencing cases are significantly impacted by how certain prior Kansas offenses are assessed, I cannot readily guess just how loudly this Brooks ruling might echo in other settings.  But I do know that a similar type of ruling from the Fourth Circuit a few years ago concerning how North Carolina priors were to be treated has tied up a lot of federal courts in a lot of jurisprudential knots as they try to unwind the impact of "mis-assessed prior offenses." Consequently, I would advise court officials and federal practitioners in Kansas and perhaps throughout the Tenth Circuit to start reviewing and giving thought to what Brooks says and what it could mean for prior cases as well as future ones.

June 2, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Tuesday, May 27, 2014

US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity

I just received a notice from the US Sentencing Commission which highlights that the USSC has some new research that can and should help inform the on-going discussion of whether and how the new reduced drug guidelines ought to be made retroactive. Here is the text of this notice I got via e-mail, which includes links to two important new research documents:

As previously noted, the Commission is seeking public comment on the issue of whether to apply its recent amendment to the drug quantity table retroactively.  The Commission will receive public comment on this issue through July 7, 2014.  Public comment can be emailed to  public_comment@ussc.gov.  To facilitate public comment on this issue, the Commission is making available the following materials:
 
In April, Commissioners directed staff to analyze the impact of retroactivity should the Commission vote to authorize retroactive application of the 2014 drug guidelines amendment.
 
The Commission also released an updated recidivism analysis of crack cocaine offenders who were released early after implementation of a 2007 guidelines amendment which retroactively reduced by two levels the base offense levels assigned by the Drug Quantity Table for crack cocaine.  In this five-year study, these offenders were compared with similarly situated offenders who served their original sentences.

May 27, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Fascinating research on federal mortgage fraud prosecutions and sentencing in Western PA

20140525mortgage-fraud-thumbI am pleased and excited to have learned over the long weekend that the Pittsburgh Post-Gazette and the Duquesne University School of Law collaborated on an innovative Fact Investigations class, led by associate professor and Criminal Justice Program director Wesley Oliver, to study the modern work of Western Pennsylvania's federal prosecutors in response to modern mortage fraus.  As explained in this first article of a series about this work, this group "identified 144 prosecutions alleging mortgage-related crimes in the Pittsburgh area ... [and then] analyzed 100 prosecutions in which sentence had been pronounced and for which the federal sentencing guidelines could be discerned." Before getting into the findings, I want to heap praise on everyone involved in this project because it shows what valuable work can be done when law schools and traditional media team up to examine intricate and dynamic issues concerning the federal criminal justice system.

Here, from the start of the first article in the series, are the basic findings of this terrific project:

In 2008, as the housing market dragged the world economy down, orders came from Washington, D.C., to federal prosecutors nationwide: Bust the people whose lies contributed to the mess.

Six years later, the effort by Pittsburgh's federal prosecutors to punish fraudulent mortgage brokers, appraisers, closing agents, property flippers and bank employees can claim 144 people charged, more than 100 sentenced and no acquittals.

That undefeated record, though, came at a price: Some of the worst offenders got extraordinary deals in return for their testimony against others.

A review by the Pittsburgh Post-Gazette and Duquesne University School of Law students of 100 completed cases showed that the sentences of mortgage-related criminals in the Pittsburgh area were driven more by their degree of cooperation with prosecutors than by the number of people they scammed, the dollars they reaped or the damage they did to the financial system.  Some of the most prolific offenders used their central places in the fraud conspiracy to secure light sentences.

• Leniency for cooperation was doled out liberally.  At least 30 of the 100 defendants were the beneficiaries of prosecutorial motions to reward "substantial assistance" to the investigation.  That cooperation rate is nearly double that seen in fraud cases nationwide, suggesting that prosecutors here rewarded more defendants than normal.

• Most of the mortgage criminals who assisted prosecutors got no prison time, and the average amount of incarceration for those 30 defendants was a little more than three months.  By contrast, defendants who pleaded guilty but didn't provide substantial assistance to prosecutors, got average sentences of three years in prison.  Those few who went to trial faced an average of 6½ years behind bars.

•  Several of the figures most central to the region's mortgage fraud problem cooperated with prosecutors, and got non-prison sentences.  For instance, Kenneth C. Cowden, formerly of McKees Rocks and now of Florida, performed unlicensed appraisals that exaggerated real estate values in the region to the tune of hundreds of millions of dollars. He cooperated and got nine months in a halfway house.  Jay Berger of Fox Chapel, who recruited Cowden and lived lavishly from fraudulent mortgages, was sentenced in 2012 to 15 months in prison, but died this month at age 49 without serving time.

Here are links to all the article in the series:

Regular readers will not be at all surprised to hear me say that I view this terrific bit of investigative journalism as further proof that those who are really concerned about suspect disparities in federal sentencing ought to be much more focused on the application of (hidden and unreviewable) prosecutorial sentencing discretion than about the exercise of (open and reviewable) judicial sentencing discretion.

May 27, 2014 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, May 07, 2014

Within-guideline sentences dip below 50% according to latest USSC data

Due to a busy end-of-the-semester schedule, I only just this week got a chance to look at US Sentencing Commission's posting here of its First Quarter FY14 Quarterly Sentencing data.  And, as the title of this post highlights, there is big news in these USSC data: for the first time, less than half of all federal sentences imposed were technically "within-guideline" sentences.  To be exact, only 48.8% of the 18,169 sentences imposed during the last three months of 2013 were within-guideline sentences.

In this post following the previous quarterly USSC data release, I noted a small uptick in the number of below guideline sentences imposed by federal district judges (from around 18.5% of all federal cases to 19.3% in the last quarter of FY13).  At that time, I hypothesized that perhaps a few more judges were willing to impose below-guideline sentences in a few more federal cases after Attorney General Eric Holder's big August 2013 speech to the ABA lamenting excessive use of incarceration in the United States.  Now, in this latest quarterly data run, the number of judge-initiated, below-guideline sentences has ticked up again, this time to 20.4% of all sentenced federal cases.  I now this this data blip is evidence of a real "Holder effect."

Though still more time and data are needed before firm causal conclusions should be reached here, I do believe all the recent talk about the need for federal sentencing reform is likely finding expression in the way federal judges are now using their post-Booker discretion.  The data from the last six month suggest that, as we hear ever more public policy groups and politicians on both the right and the left echoing AG Holder's call for less reliance on long terms of incarceration, more federal judges feel ever more justified in imposing more sentences below the guidelines. 

May 7, 2014 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, May 05, 2014

New York Times op-ed spotlights enduring flaw with modern drug sentencing

Today's New York Times has this notable new op-ed authored by Mark Osler under the headline "We Need Al Capone Drug Laws."  Here are highights:

After a ruinous 30-year experiment in harsh sentences for narcotics trafficking resulting in mass incarceration, policy makers are having second thoughts.  Many states, including Texas, have reformed their laws to shorten sentences.  Congress is giving serious consideration to the Smarter Sentencing Act, which would do the same. The United States Sentencing Commission has just adopted a proposal to revise federal guidelines.

And most recently, Attorney General Eric H. Holder Jr. announced that President Obama intends to use his executive pardon power to release hundreds or even thousands of federal prisoners with narcotics convictions (I am on a committee to train lawyers for the project).  Something like that hasn’t happened since President John F. Kennedy granted clemency to more than 200 prisoners convicted of drug crimes.

Unfortunately, none of this addresses a very basic underlying problem: We continue to use the weight of narcotics as a proxy for the culpability of an individual defendant, despite this policy’s utter failure.  If a kingpin imports 15 kilograms of cocaine into the country and pays a trucker $400 to carry it, they both face the same potential sentence.  That’s because the laws peg minimum and maximum sentences to the weight of the drugs at issue rather than to the actual role and responsibility of the defendant.  It’s a lousy system, and one that has produced unjust sentences for too many low-level offenders, created racial disparities and crowded our prisons....

Some laws create remarkably low thresholds for the highest penalties.  For example, my home state of Minnesota categorizes someone who sells just 10 grams of powder cocaine (the equivalent of 10 sugar packets) as guilty of a first-degree controlled-substance crime — the most serious of five felony categories.  There is no real differentiation between the most culpable wholesaler and an occasional street dealer.  

The problem with recent legal reforms is that they don’t dispose of this rotten infrastructure.  In 2010, Congress passed the Fair Sentencing Act, which changed the ratio between crack and powder cocaine for sentencing purposes from 100-to-1 (meaning the same sentence applied to 100 grams of powder cocaine and to 1 gram of crack) to 18-to-1.  

What the Fair Sentencing Act didn’t do is change the basic weight-centric centric focus that has filled our prisons with narcotics convicts. There were 4,749 such prisoners serving federal time in 1980, before the harshest weight-based standards were implemented. As of 2013, that number was 100,026. As for the drugs themselves, they’re still here....

A better measure of culpability would be the amount of profit that any individual took from the operation of a narcotics ring. Because narcotics conspiracies are nothing more or less than a business, they operate like any other business. The people who have the most important skills, capital at risk or entrepreneurial abilities take the most money. Statutes and guidelines should be rewritten so that profit thresholds replace narcotic weight thresholds. Only then will mules and street sellers properly face much shorter sentences than real kingpins.

This would, of course, create a new challenge for prosecutors and investigators, who would have to prove the amount of profit made by an individual defendant. It wouldn’t be as easy as snatching up mules and street dealers. But then “easy” and “justice” rarely rest comfortably with each other.

May 5, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (4) | TrackBack

Wednesday, April 23, 2014

President Bartlet urges Congress to pass the Smarter Sentencing Act

I am pleased and intrigued to learn via this Mother Jones piece, headlined "Martin Sheen Reprises His 'West Wing' Role — for a Sentencing Reform PSA," that a high-profile celebrity is making the case for federal sentencing reform. Here are the details (along with links):

On Tuesday, Brave New Films released a new PSA calling on Congress to pass the Smarter Sentencing Act. The proposed sentencing-reform legislation aims to reduce prison populations and costs by creating less severe minimum terms for nonviolent drug offenders. (On Monday,Yahoo News reported that President Obama could grant clemency to "hundreds, perhaps thousands" of nonviolent drug offenders by the end of his second term.) The video was produced in partnership with the ACLU and Families Against Mandatory Minimums (FAMM), and stars actor Martin Sheen. It's titled "President Bartlet has a message for Congress," in reference to Sheen's role on Aaron Sorkin's political drama The West Wing.

"When BNF joined with FAMM and the ACLU to rally support for the Smart Sentencing Act, we couldn't think of a better spokesperson than Martin Sheen," Brave New Films president Robert Greenwald said. "When he portrayed President Bartlett on The West Wing, his character commuted the sentences of nonviolent drug offenders. In the real world, Martin Sheen has been an advocate for sentencing reform and alternatives to the harsh, long prison sentences we give to nonviolent drug offenders."

April 23, 2014 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, April 16, 2014

Critical reflections on the Cantu commutation ... aka why some federal prosecutors perhaps deserve to be demonized

220px-TrialKafkaThe more I reflect on the typo-correction sentence commutation of federal prisoner Cesar Huerta Cantu (basics here), and especially after re-reading this 2255 dismissal order that followed Cantu's own effort to have a court fix its own significant sentencing error, the more disgusted I feel about the modern federal sentencing system and especially about the U.S. Department of Justice and those federal prosecutors most responsible for Cesar Cantu's treatment by our Kafkaesque system.  In an effort to achieve some catharsis, let me try to briefly explain my feelings in three basic points:

1.  Cantu's original federal sentencing as guidelines numerology:  My disgust begins as I think about the basic reality that our federal sentencing system enables a small numerical typo — what should have been a 34 was a 36 in the presentence report guideline calculations — to result in 38-year-old defendant with no criminal history (who pleaded guilty and had considerable family support) to get sentenced to an extra 3.5 years in prison.  I continue to struggle to find much sense of justice or wisdom in a federal sentencing system in which quantitative numbers invented by a government agency, rather than qualitative factors and reasoned judgment, often still conclusively determine how many years or decades defendants are ordered to spend locked in a cage.

2.  Cantu's original federal sentencing as federal actors gone numb:  Arguably more depressing than a federal sentencing system in which numbers invented by a government agency determine how long a defendant gets locked up are sentencing actors whose concern for the human realities of incarceration have been numbed by all the numbers.  One would hope that, as part of a system in which years of human experience for federal defendants (and those who care about them) get determined by basic math, everyone involved would make extra sure the math is always done right.  But, numbed by so many humans being imprisoned for so many years based on so many numbers, the author of the PSR did not notice a typo that inflated Cantu's guideline-recommend prison sentence by many years, and neither did the defense attorney representing Cantu, and neither did the US Attorneys prosecuting Cantu, and neither did the federal judge sentencing Cantu.

3.  Cantu's dismissed 2255 motion as federal prosecutors possessed:  Bill Otis and others sometimes complain that I seem at times to suggest federal prosecutors are evil or satanic.  In fact, I have great respect for the hard work of federal prosecutors, and I am sure I would much rather have my daughters date 99% of federal prosecutors than 99% of federal defendants.  But I must wonder about what kind of evil or satanic forces may have possessed the federal prosecutors who responded to Cantu's pro se 2255 motion to correct his sentence with a motion to dismiss this matter as time-barred.  

Based on my reading of this 2255 dismissal order that followed Cantu's motion, federal prosecutors have never disputed that a  typo resulted in Cantu receiving a sentence 3.5 years longer than he should have, nor have they disputed that federal government officials are wholly responsible for this consequential error.  Still, the federal prosecutors who contributed to a mistake costing Cantu 3.5 years of his freedom responded to his 2255 motion by urging the sentencing judge also responsible for this mistake to refuse to correct Cantu's sentence because Cantu discovered their mistakes too late.  I am hard-pressed to come up with adjectives to describe this federal prosecutorial decision to seek dismissal of Cantu's 2255 motion other than inhumane.

I want to be able to imagine a positive motivation for why federal prosecutors sought a procedural dismissal of Cantu's motion to correct his indisputably erroneous sentence: perhaps, I was thinking, six years after prosecutors helped get an erroneously long sentence imposed on Cantu, these prosecutors came to believe Cantu was a criminal mastermind still involved in serious criminal wrongdoing from prison.  But, as this New York Times article reports, years after his initial erroneous sentencing, Cantu provided "law enforcement authorities with substantial assistance on an unrelated criminal matter" and "he has been a model prisoner, taking vocational and life skills courses and expressing remorse."  In addition, according to the Times reporting, Cantu is married and has 8-year old daughter.  Even if prosecutors were, for whatever reasons, disinclined to help Cantu get his erroneous sentence fixed after Cantu himself had helped the prosecutors, wouldn't they lose a little sleep over the notion that a typo could end up costing Cantu's wife the chance to have her husband's help to raise their daughter during her coming adolescence?

I am hoping Bill Otis or other current or former federal prosecutors will help me feel better about the work of our federal sentencing system and the Department of Justice in the wake of the Cantu commutation.  Especially because Prez Obama has been so stingy with his clemency power, I want this latest commutation to be a reason to celebrate rather than curse our justice system.  But unless and until someone can metamorphasize my understanding of the work of federal prosecutors in this case, I have a hard time not thinking that Josef K. and Cantu have far too much in common. 

April 16, 2014 in Clemency and Pardons, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (25) | TrackBack

Thursday, April 10, 2014

US Sentencing Commission to vote on reducing drug sentencing guidelines

As detailed in this official notice, "a public meeting of the [US Sentencing] Commission is scheduled for Thursday, April 10, 2014, at 2:30 p.m."  On the official agenda is "Vote to Promulgate Proposed Amendments," and as reported in this prior post, in January the USSC voted to publish proposed amendments to the federal sentencing guidelines that include an across-the-board reduction in the sentences recommended for all drug offenses.  

I expect there will be some press reports about the USSC vote on the drug guidelines later today.  In the meantime, this effective new PBS Frontline article headlined "Feds to Reconsider Harsh Prison Terms for Drug Offenders," provides some background and context:

The federal prison population has expanded by nearly 800 percent in the past 30 years, spurred in part by the increasing use of tougher sentences applied to nonviolent drug crimes. Now there’s a growing movement to scale it back. On Thursday, the U.S. Sentencing Commission, an independent federal agency, plans to vote on an amendment to sentencing guidelines that could ultimately begin to winnow the federal prison population, nearly half of whom are people convicted of drug offenses.

The amendment is part of a bipartisan push away from America’s addiction to incarceration, which prison reform experts say costs far too much, not only in dollars — $80 billion a year in 2010 — but also in the devastation primarily of African-American communities, who have been disproportionately caught up in the system.

The commission’s proposal would lower the sentencing guideline levels for drug-trafficking offenses, allowing judges to impose reduced sentences by about 11 months, on average, for these crimes. The guidelines are the range between which a judge can sentence an offender. Currently, those guidelines are set higher even than mandatory minimum sentences — the lowest possible sentence a judge could impose — to give prosecutors bargaining power. The amendment would set the upper and lower guideline limits around the mandatory minimums, leading to lower sentences for nearly 70 percent of drug-trafficking offenders, the commission said....

Prison reform advocates say the commission’s proposal is an incremental step, but an important one. “When you’re serving 10 years, six months can make a difference,” said Jesselyn McCurdy, an attorney with the ACLU’s Washington legislative office. “It’s incremental, but it’s all important because it sends the larger message that we have to do something about the harsh sentencing in the federal system.”

Should the Sentencing Commission’s amendment pass, it will be sent to Congress, which will have 180 days to make any changes. If it does nothing — which is the likely outcome given bipartisan Congressional support for the proposal — the resolution will take effect on Nov. 1.

For years, states, which carry the bulk of U.S. prisoners, have taken the lead on sentencing reform — largely out of necessity. Struggling with stretched budgets and overflowing prisons, 40 states have passed laws that ease sentencing guidelines for drug crimes from 2009 to 2013, according to a comprehensive analysis by the Pew Research Center. Seventeen states have invested in reforms like drug treatment and supervision that will save about $4.6 billion over 10 years, according to the Justice Department.

Such reforms also have gained popular public support. According to Pew’s own polling, 63 percent of Americans say that states moving away from mandatory minimum sentencing is a “good thing,” up from 41 percent in 2001. Even more — 67 percent — said that states should focus on treatment, rather than punishment, for people struggling with addiction to illegal drugs....

The Sentencing Commission itself notes that substantial reform requires action by Congress. “Our proposed approach is modest,” said Patti Saris, the commission’s chairwoman. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...

The Senate is currently considering a bill called the Smarter Sentencing Act, a bipartisan bill introduced in July 2013 by Sen. Richard Durbin (D-Ill.) and Sen. Mike Lee (R-Utah). It wouldn’t abolish mandatory minimums, but it would allow judges to impose more lenient sentences for certain non-violent drug offenses. “Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said when introducing the bill, adding that the act “takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”...

But the bill, which even the senators acknowledged as “studied and modest” on their website, doesn’t have great odds of passing. According to govtrack.us, a nonpartisan website that tracks congressional legislation, the Smarter Sentencing Act has only a 39 percent chance of being enacted.

Some recent related posts:

UPDATE:  This press release reports that, as expected, the USSC voted today to reduce the federal guidelines for all drug offenses.  Here is an excerpts from the press release:

The Commission voted unanimously to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types. The drug guidelines under the amendment would remain linked to statutory mandatory minimum penalties. The Commission estimates that approximately 70 percent of federal drug trafficking defendants would qualify for the change, with their sentences decreasing an average of 11 months, or 17 percent, from 62 to 51 months on average.

The Commission this year has prioritized addressing federal prison costs and capacity with a continued commitment to public safety. The Commission estimates that the amendment reducing drug guidelines would reduce the federal prison population by more than 6,500 over five years, with a significantly greater long-term impact.

“This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner,” said Judge Patti B. Saris, chair of the Commission. “Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991.”

In addition, the Chair of the USSC made a statement in conjunction with today's vote, which is now available here via the USSC's website.  The interesting three-page statement concludes with this interesting paragraph concerning possible retroactive application of the proposed new guidelines: 

Over the next few months, the Commission will be studying the issue of whether the drug amendment should apply retroactively, which we are statutorily required to do. This is a complex and difficult issue, and requires a different analysis than the decision we have made today about reducing drug sentences prospectively. The Commission will take into account, as it always does when considering retroactivity, the purposes of the amendment, the magnitude of the change, and the difficulty of applying the change retroactively, among other factors. I know the Commission will carefully consider this issue, and many stakeholders will have strong views. I do not know how it will come out, but we will carefully review data and the retroactivity impact analysis we have directed staff to conduct as well as public comment in order to ensure that we weigh all perspectives.

April 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, April 09, 2014

Lots of notable sentencing activity via the Sixth Circuit on this hump day

I have long found that Wednesday seems to be a popular day for circuit sentencing decisions, and today the Sixth Circuit was involved in two notable sentencing actions. 

One action involves the decision, noted in this order, to grant en banc review in US v. Mateen, a statutory interpretation case concerning "whether a state sexual offense that does not necessarily involve a minor or ward can trigger the sentencing enhancement under 18 U.S.C. § 2252(b)(2)."  The (split) Mateen panel held that the sentence enhancement was not applicable, and the en banc grant suggest a majority of the Sixth circuit judges may not agree.

The other action involves a lengthy decision in a MDMA sentencing appeal, US v. Kamper, No. 12-5167 (6th Cir. April 9, 2014) (available here), which gets started this way:

Defendants-appellants Glenn Kamper and Joe Head appeal their respective 144-month sentences imposed for their roles in a conspiracy to manufacture and distribute MDMA (also known as 3,4-methylenedioxymethamphetamine or “ecstasy”) in Chattanooga, Tennessee. Head and Kamper both appeal their sentences as procedurally and substantively unreasonable. Kamper argues that the MDMA-to-marijuana equivalency ratio underlying his Guidelines sentencing range is based on faulty science, and that the district court erred when it justified its refusal to reject the Guidelines ratio with institutional concerns. We conclude that the district court misunderstood its authority to reject and replace a Guidelines equivalency ratio based on policy disagreements, but conclude that the district court’s error was harmless. We reject Kamper’s other arguments regarding the reasonableness of his sentence as without merit. Head argues that the district court erred in applying sentencing enhancements for his aggravating role in the criminal conspiracy and for obstruction of justice. We conclude that Head’s sentence must be vacated because the district court erred in applying a sentencing enhancement for obstruction of justice. Accordingly, we AFFIRM the judgment of the district court with respect to Kamper, but REVERSE the judgment of the district court with respect to Head and REMAND for resentencing.

April 9, 2014 in Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Friday, March 28, 2014

Federal judge robustly defends drug guidelines ... after robustly varying from them

Thanks to this post by Paul Cassell over at The Volokh Conspiracy, titled "Are the federal sentencing guidelines for drug dealing unduly harsh?", I have had a chance to see and read a remarkable 70+-page opinion by US District Judge James Browning in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read.  Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.  And the validity and role of various uses of judicial discretion after Booker also is front-and-center in this opinion.

I am going to make all my sentencing students read this opinion, and this openning to the opinion helps highlight why it covers so many important issues:

THIS MATTER comes before the Court on Defendant Kayla Marie Reyes’ Sentencing Memorandum and Motion for a Downward Variance, filed March 21, 2013 (Doc. 45)(“Sentencing Memorandum”).  The Court held a sentencing hearing on January 6, 2014. The primary issues are: (i) whether the Court will vary downward to a sentence of 15 months to reflect Defendant Kayla Marie Reyes’ comparatively minimal involvement in an overall drug conspiracy; (ii) whether the Court should vary from the advisory guideline range because of a substantive disagreement, under Kimbrough v. United States, 552 U.S. 85 (2007), with the United States Sentencing Commission’s Guideline ranges for drug trafficking violations, as did the Honorable John Gleeson, District Judge for the United States District Court for the Eastern District of New York, in United States v. Diaz, No. 11-CR-00821-2, 2013 WL 322243 (E.D.N.Y. Jan. 28, 2013); and (iii) whether the Court should consider the costs of incarceration and supervised release in sentencing.  

The Court will vary downward, but not as much as Reyes requests: it will vary to a sentence of 30 months, which the Court concludes best reflects the factors that Congress laid out in 18 U.S.C. § 3553(a).

The Court concludes that Judge Gleeson’s criticisms of the Commission’s Guideline ranges for drug trafficking lack a sound basis.  Accordingly, the Court will not adopt his substantive disagreement under Kimbrough v. United States with the Commission’s Guideline for drug trafficking offenses. The Court varies for reasons tied to the factors in § 3553(a) and to Reyes’ individual circumstances, and not because of a substantive disagreement with the Commission’s ranges for drug trafficking. Finally, the Court will not consider the costs of incarceration and supervised release in sentencing, because the factors in § 3553(a) do not clearly permit the Court to consider costs, and because those concerned about the fiscal implications of criminal justice policy should petition the other branches of government and should not ask the Court to consider such implications in sentencing an individual defendant. 

As this introduction hints, I could readily write a few dozen blog posts about this Reyes opinion (and might do a few more in the weeks ahead). But my most fundamental insight about the opinion appears in the title to this post: Judge Browning makes a very forceful argument in support of the federal drug sentencing guidelines, but he is doing so in a case in which he concludes that they should not be followed. If Judge Browning really thinks these guidelines are so sound, I do not quite understand why he feels it necessary (or even legally appropriate) to vary from them.

March 28, 2014 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, March 27, 2014

USSC Chair talks up "A Generational Shift for Drug Sentences"

I just noticed via the US Sentencing Commission's official website that Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, gave this lengthy speech at the Georgetown University Law Center titled “A Generational Shift For Drug Sentences.” The speech as reprinted runs eight-single-spaced pages, and here is one of many notable snippets:

So what have we learned then about drug sentencing policy in the generation since these federal sentences and guidelines were put into place?  At the state level, we have seen that many states have been able to reduce their prison populations and save money without seeing an increase in crime rates.  Michigan, New York, and Rhode Island all significantly decreased drug sentences, with Michigan and Rhode Island rolling back mandatory minimum penalties for drug offenses.  Each state saw reductions in prison population, accompanied by decreases in crime rates.  South Carolina eliminated mandatory minimum penalties for drug possession and some drug trafficking offenses and increased available alternatives to incarceration for drug offenses.  It too has seen reductions in its prison population and a drop in crime rates.  Other traditionally conservative states like Texas, Georgia, and South Dakota have shifted their emphasis from harsh punishment of drug offenses to a greater focus on alternative approaches, without seeing an increase in crime rates.  Respected organizations like the Vera Institute and the Pew Charitable Trust have studied these state reforms and found positive results.

This real-life experience in the states, together with new academic research, has begun to indicate that drug sentences may now be longer than needed to advance the purposes for which we have prison sentences, including public safety, justice, and deterrence.  Some prominent scholars have written that lengthy periods of incarceration are unlikely to have a deterrent effect and that even the incapacitation effect — keeping dangerous people off the streets — becomes less significant as prisoners get older.

March 27, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, March 26, 2014

Killer bride Jordan Graham moves to withdraw murder plea claiming feds breached deal in sentencing arguments ... UPDATE: motion denied!

I am intrigued and amazed to learn via this local article, headlined "Newlywed asks to withdraw guilty plea in husband's murder," that the Montana killer bride has now formally moved to withdraw her guilty plea based on the assertion that the federal prosecutors' sentencing arguments breached the (mid-trial) plea deal struck between defendant Jordan Graham and the feds.  Here are the details: 

The Kalispell newlywed accused of pushing her husband off a cliff last summer asked to withdraw her guilty plea late Tuesday, arguing the agreement she accepted was “illusory” and a “hollow formality.” Jordan Graham, 22, was to be sentenced in Missoula’s U.S. District Court Thursday for the July murder of 25-year-old Cody Johnson along a trail in Glacier National Park. It’s now unclear if the sentencing will proceed as scheduled.

First, U.S. District Judge Donald Molloy will have to rule on Graham’s motion to withdraw her guilty plea. If he accepts the motion, a new trial will be scheduled.  If he rejects her motion, the sentencing could continue as planned.

In Tuesday’s motion, federal public defender Michael Donahoe argued that prosecutors “breached the plea agreement” by suggesting in a sentencing memorandum filed last week that Graham murdered Johnson with both intent and premeditation. That memorandum, and its suggestion that Graham be sentenced to life in prison, rendered December’s plea agreement “nothing but an empty promise” — merely a means by which prosecutors avoided a possible manslaughter verdict, Donahoe said.

Graham accepted the plea agreement near the end of her trial, pleading guilty to second-degree murder.  In exchange, prosecutors agreed to drop a first-degree murder charge — and its contention that Johnson’s death was premeditated.

For a first-degree murder conviction, prosecutors needed to prove there was intent on Graham’s part; intent is not required for a second-degree murder conviction.  “By offering and agreeing to accept a plea agreement to second degree supported by an extreme recklessness plea colloquy, the government effectively removed the issue of defendant’s alleged premeditation as an issue in the case,” Donahoe wrote Tuesday.  “That was the entire purpose of the plea agreement,” he added.

Then came the sentencing memorandum, where prosecutors argued that Graham planned the murder of Johnson on the night of July 7 and should spend the rest of her life in prison  — or at least the next 50 years.

Graham has admitted pushing her husband of eight days off a cliff in Glacier Park during an argument. She was experiencing doubts about their marriage, she said, and shoved Johnson during a heated exchange.  Her intent was not to kill him, Graham said, but rather an instinctive response to Johnson grabbing her arm.

In his sentencing memorandum, assistant U.S. attorney Zeno B. Baucus honed in on evidence that Molloy expressly prohibited from December’s trial.  That evidence included a long, black cloth found in the vicinity of Johnson’s body, which prosecutors theorized Graham used to blindfold her husband before pushing him off a cliff along Glacier Park’s Loop trail. Graham also took away her husband’s car keys, prosecutors contended, and removed his wedding ring before the altercation....

On Tuesday, Donahoe said the prosecution’s return to premeditation theories rendered the plea agreement void — and asked the judge to allow Graham to withdraw her admission of guilt....  “By making what should have been its closing argument to the jury in its sentencing papers, the government has furnished a ‘fair and just reason’ to support defendant’s request to withdraw her plea,” Donahoe wrote. “The government’s plea agreement promise ... is an empty and hollow formality,” he said. “Therefore, the defendant argues that the government’s offer for a plea agreement was and is illusory and in bad faith.”

I expect the government will file a full-throated response to this motion sometime today. And I am sure the government will stress that, by taking a plea to the lesser-charge of second-degree murder, Garaham got an extraordinarily important sentencing benefit: the sentencing range for that charge is a range of 0 to life, whereas a first-degree murder conviction carried a mandatory LWOP sentence. I fully understand why Jordan Graham and her lawyer are troubled that the feds are making a forceful sentencing argument for an LWOP sentence, but I am not sure why its sentencing advocacy alone provide a basis for withdrawing a seemingly otherwise valid (and valuable) plea.

I have been obsessing about the upcoming sentencing in this case with my sentencing students because, as noted in this recent post, I think it provides a great and accessible tutorial on federal plea bargaining and sentencing realities. Little did I expect that this live tutorial would take on this interesting extra lesson.

Previous related posts (with lots of interesting prior comments):

UPDATE:  As this AP article reports, prosecutors do not agree that they breached any promises in this case:

Prosecutors responded Wednesday that they agreed to dismiss the first-degree murder charge but did not agree to ignore other evidence offered at trial in recommending a sentence of 50 years to life.

Assistant U.S. Attorney Kris McLean noted that Graham agreed to plead guilty on Dec. 12 without the benefit of a plea agreement. At that time, U.S. District Judge Donald Molloy reminded Graham that her plea meant she could face a life sentence in federal prison.

The federal government is not limited by the defendant’s description of events in recommending a prison term, McLean wrote in his response Wednesday. He argued the court can consider any information about the background, character and conduct of the defendant when determining a sentence.

The government’s sentencing memo recommends the court consider an upward variance to a sentence of life in prison, but no less than 50 years, in part because “the circumstances surrounding Cody’s death closely resemble conduct that is often associated with a first-degree murder conviction.”

Prosecutors said the fact that Graham was unhappy in her new marriage, that she somehow ended up with the only set of keys to the car Johnson drove into the park on July 7 and the fact that she texted a friend saying if the friend didn’t hear from her at all again that night, “something happened,” indicated Graham was “planning and considering murder.”

Graham is scheduled to be sentenced Thursday by Molloy in Missoula. It was not clear how Graham’s motion might affect the sentencing schedule.

ANOTHER UPDATE:  Unsurprisingly, as this local article reports, the "judge has denied a Kalispell newlywed's request to withdraw her guilty plea for the murder of her husband in Glacier National Park last summer." Here is more:

U.S. District Judge Don Molloy began Thursday's sentencing hearing by considering Jordan Linn Graham's motion to withdraw her guilty plea to second-degree murder....

Molloy ... ruled Thursday that Graham had knowingly and willingly pleaded guilty near the end of her trial last December - and said that plea will remain in place. He made the ruling after hearing brief arguments from both sides. He then proceeded to the sentencing. 

March 26, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (37) | TrackBack

Monday, March 24, 2014

Bridezilla murderer Jordan Graham's federal sentencing as amazing teaching opportunity

BRIDEZILLARegular readers (or anyone who watches morning television) likely remember the killer newlywed Jordan Graham.  As reported in prior posts here and here, Graham admitted to pushing her new husband from a cliff in Glacier National Park, but at first claimed that she did not mean to do it.  Then, after a federal jury trial was conducted,  but before a jury started deliberating about the charges, Graham entered a plea to second-degree murder in exchange for federal prosecutors agreeing to drop a first-degree murder charge and a count of making a false statement to authorities.

Now, as reported in this local article, headlined "Newlywed murder case unusual for federal court; sentencing Thur," it is now sentencing time. Unsurprisingly, federal prosecutors and Graham's defense team have much different views on what sentence she ought to receive for second-degree murder:

Does pushing your husband off a cliff to his death warrant serving life in prison?  Or 10 years? Or somewhere in between?  On Thursday, U.S. District Judge Donald Molloy must decide what punishment is fitting for Jordan Graham, who pushed her husband off a cliff in Glacier National Park last summer after only eight days of marriage.

After both sides had rested their case in a December trial, 22-year-old Graham pleaded guilty to second-degree murder in the death of 25-year-old Cody Johnson before the jury could enter into deliberations.

The case is relatively unusual for federal court, since accusations of murder are usually tried and sentenced in county courtrooms, but Graham pushed Johnson on federal land, said Jordan Gross, an associate professor of law at the University of Montana who teaches criminal law and criminal procedure. Federal sentencing guidelines are vague on what’s required for second-degree murder. Hence the 90-year difference in sentences the defense and prosecution are asking Molloy to hand down, Gross said.

Graham was charged with first-degree murder, a lesser included charge of second-degree murder and making false statements to law enforcement. For first-degree murder, prosecutors must prove there was intent on the defendant’s part, where intent is not required for a second-degree murder conviction.

Although Graham pleaded guilty, prosecutors rehashed in their sentencing memorandum that Johnson was found without his wedding ring or car keys and hinted at the possibility that Graham had indeed intended to kill her new husband. Graham’s defense team contends that the circumstances of the evening were a recipe for disaster and that the incident was more akin to an accident. “She pleaded guilty, but that doesn’t mean that the prosecution can’t come in and argue her sentence up to life because that’s what the statute says,” Gross said. Federal statutes also don’t stipulate a required minimum sentence.

The benefit of pleading guilty before the jury could return a verdict is that it shows Graham accepts responsibility for her actions, Gross said. “There are shades of acceptance of responsibility,” though, Gross said, adding that in Graham’s case, she didn’t spare Johnson’s family the anguish of taking the stand and reliving their pain during a trial.

Letters from family and friends in support of Graham and letters filed on behalf of the prosecution, also will play a role in Molloy’s determination — and give insight from those who know Graham and Johnson best.

Brad Blasdel, who knew Graham for several years through her family, wrote that she was quiet and shy on the surface but cold and calculating underneath and showed no emotion about Johnson’s death. “Not once did I see any sign of remorse in Jordan for killing Cody,” he wrote, asking Molloy to consider the woman’s callousness during sentencing. “She took Cody’s life with premeditation and malice; now she must give hers,” he continued.

Cyndi Blasdel called Graham a “quiet instigator” who frequently encouraged bad behavior in others from the time she was a child. After Graham and Johnson’s engagement, Graham’s behavior became increasingly erratic, to the point of murder, Blasdel said. “Jordan Graham knew what she did was wrong and knew the consequences. She needs to be held accountable. She is not a nonviolent offender. Those of us who know her are afraid and some of us still sleep with the lights on,” she wrote.

People who wrote letters on Graham’s behalf, though, urged Molloy to be lenient to the quiet, hardworking woman who they say diligently attended church and served as a mentor to other young women.

Graham’s stepfather, Steven Rutledge, wrote he feels Johnson’s death was a terrible accident. “Why she decided to tell stories about the true events are unknown and unfortunate, but not a reason for a long prison term,” he wrote. Graham is a quiet churchgoer who cares deeply about others, he wrote. “I ask you to grant Jordan some leniency, and a chance at living her life as a young Christian woman.”

If Molloy is lenient, Graham has the potential to become a contributing member of society, her mother, Lindele Rutledge, wrote. Her daughter has shown remorse repeatedly in letters, through phone conversations and during visitation times, Rutledge wrote. “She has never been in trouble with the law. Her only record is a couple of speeding tickets. By showing her leniency she could get a college education and become a better and useful member of society.”...

Graham also likely will address Molloy during Thursday’s hearing in U.S. District Court in Missoula. It will be her opportunity to interact with Molloy outside of the case facts, said Paul Ryan, who has practiced law in Missoula for 20 years. Her comments to the judge will allow her to personally explain why she pushed Johnson and convey if she truly accepts responsibility for her actions, Ryan said.

Johnson’s mother, Sherry Johnson, as well as several other family members, will make comments during the sentencing hearing too. “They’re usually the most emotional and they can certainly carry a lot of weight with the judge,” Ryan said. What Johnson’s family feels is appropriate punishment also will factor into the decision, as will the impact to the victim, he said. “In this case, it was fatal. There can’t be a greater impact on a person than that,” he added.

As the title of this post highlights, I think this upcoming sentencing provides an extraordinary opportunity for me to explore with students critical sentencing issues ranging from views on how offense facts beyond the offense of conviction ought to impact sentencing and whether post-offense behavior by the defendant ought to play a large role at sentencing.  

In this prior post, I noted some of the federal sentencing guideline issues that this case necessarily raises.  Specifically, the guideline for second degree murder, 2A1.2, provides a base offense level of 38 and recommends an upward departure if "the defendant's conduct was exceptionally heinous, cruel, brutal, or degrading to the victim."   Should that apply here?  Also, I believe federal prosecutors have calculated the guidelines to include enhancements for obstruction of justice and without any reduction for acceptance of responsibility based on the lateness of the plea.  Are those fair and proper as sentencing consideration?

I could go on and on, but I want to save some of the fun for my students in class this week.  In the meantime, though, I would love to hear from readers (especially those who are regular sentencing practitioners) about what elements of this high-profile case provide especially good teaching ideas.

Previous related posts (with lots of interesting prior comments):

March 24, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

Friday, March 21, 2014

"Legitimacy and Federal Criminal Enforcement Power"

The title of this post is the title of thiis new paper by Lauren Ouziel now available via SSRN. Here is the abstract:

A defining feature of criminal federalism is extreme disparities in case outcomes across state and federal forums.  All else being equal, prosecution in the federal forum entails a significantly higher likelihood of conviction, and a higher penalty.  But why do such disparities exist?  Conventional explanations point to differences among sovereigns’ legal rules, resources and dockets.  These understandings, while valid, neglect to account for a less-tangible source of federal criminal power: legitimacy.

“Legitimacy” refers to the concept, refined through decades of empirical research, that citizens comply with the law, and defer to and cooperate with legal authority, when they perceive both the laws and the authorities to be fair.  A legitimacy-based exploration of the federal criminal justice system significantly enriches our understanding of the sources of federal criminal power.  Distilling those sources, moreover, reveals surprising and counterintuitive implications: to emulate the sources of federal legitimacy in local systems, we need more localized criminal justice.

March 21, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, March 20, 2014

"Sentencing in Tax Cases after Booker: Striking the Right Balance between Uniformity and Discretion"

The title of this post is the title of this new paper by Scott Schumacher now available via SSRN. Here is the abstract:

It has been nearly ten years since the Supreme Court’s seminal decision in United States v. Booker, in which the Court invalidated the mandatory application of the United States Sentencing Guidelines.  In the cases that followed, the Court addressed subsidiary issues regarding the application of the Guidelines and the scope of appellate review.  However, despite — or perhaps because of — these opinions, there is little consensus regarding the status and extent of appellate review, as well as the discretion afforded sentencing courts. More troubling, what consensus there is seems to permit judges to impose any sentence they wish, as long as the appropriate sentencing procedures are followed.  As a result, we are in danger of returning to “the shameful lack of parity, which the Guidelines sought to remedy.”

The Sentencing Reform Act and the Sentencing Guidelines were designed to reduce disparity in sentencing and to reign in what one commentator described as a “lawless system.” However, the Guidelines as ultimately conceived drastically limited the sentencing judge’s ability to impose a sentence that was appropriate for the conduct and culpability of the defendant, creating a different kind of sentencing disparity. The current, post-Booker system provides more guidance than the pre-Guidelines system, but permits sentencing judges to disregard the Guidelines and develop their own sentencing policy.  As a result, rather than having a system that allows for sentences to be tailored to individual defendants, the current system allows sentences to be imposed based on the penal philosophy of individual judges. This will inevitably lead to unwarranted sentencing disparity.

This article traces the recent history of criminal sentencing and, relying on the influential works of John Rawls and H.L.A. Hart on theories of punishment, argues for a better system that allows for both guidance to sentencing judges and appropriately individualized sentencing.  My recommendation, although equally applicable to any federal sentence, will be examined through the lens of tax sentencing.

March 20, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, March 17, 2014

DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims

Very long time readers with very good memories may recall the array of notable post-Booker issues that surround the sentencing of Antwuan Ball following his conviction for crack distribution in Washington DC. As first noted in this prior post (from June 2008!), Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

Fast forward to 2011 and, as reported here, the feds are urging the district judge to rely heavily on all sorts of alleged/claimed wrongdoing by Ball to impose a max statutory sentence of 40 years on the crack charge. (Significant side note: in light of the passage of the FSA and Supreme Court's subsequent Dorsey ruling, I am not sure 40 years was in fact the proper stat-max for Ball, but more on that point later.)

Relying on the prosecution's allegations that Ball was the leader of a huge crack consipracy (claims which the jury rejected), the district judge apparently calculated Ball's guideline sentence range to be 292 to 365 months (though again, due to the FSA, I am not sure that was the right guideline range circa March 2011).   This NACDL amicus brief filed in January 2013 indicates that Ball's guideline range would have been only 51 to 71 months absent consideration of acquitted conduct.

As reported here, District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy [and imposed on Ball a 225-month prison sentence] for his conviction of the 2001 hand-to-hand drug transaction."  At the time of Ball's 2011 sentencing, I noted here that I was quite pleased the acquitted conduct issues preserved in this notable case, and I suggested "some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct."  

Now fast forward exactly three more years, and I find myself quite disturbed and troubled by how the acquitted conduct issues (and other issues) were given seemingly quite short shrift by a panel of the DC Circuit in its ruling late last week in US v. Jones, No. 08-3033 (DC Cir. Mar. 14, 2014) (available here).  

For starters, as I read the panel opinion in Jones, I find myself persistently wondering whether and how the district court at Ball's 2011 sentencing may have been influenced by the pre-FSA crack statutes and guidelines before the Supreme Court in Dorsey subsequently made clear that post-FSA rules should apply to all post-FSA sentencings.  This issue is not discussed in the Jones opinion (and perhaps it was not raised/preserved), but uncertainty about the application of the FSA at the time of sentencing might arguably alone be reason enough to require resentencing for Ball.

More fundamentally, to reject Ball's acquitted conduct claims, the DC Circuit opinion in Jones only cites to (now dated) post-Booker precedents from all the circuits via this discussion (my emphasis added):

Although we understand why appellants find sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime.  See United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008) (citing United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam)); Dorcely, 454 F.3d at 371 [D.C. Cir. 2006] (“[A] sentencing court may base a sentence on acquitted conduct without offending the defendant’s Sixth Amendment right to trial by jury.”).  This is true even when consideration of the acquitted conduct multiplies a defendant’s sentence severalfold.  See Dorcely, 454 F.3d at 370-71.  Appellants, in effect, ask us to reconsider Settles and Dorcely. But not only do those decisions bind us, no subsequent decision by the Supreme Court or another circuit calls their validity into question. Cf. FED. R. APP. P. 35(b)(1) (suggesting contrary decisions by the Supreme Court or by another court of appeals as grounds for en banc review).  Indeed, since the Supreme Court struck down the mandatory federal sentencing guidelines and freed judges “to exercise broad discretion in imposing a sentence within a statutory range,” United States v. Booker, 543 U.S. 220, 233, 243-44 (2005), every numbered circuit has addressed the constitutionality of sentencing based on acquitted conduct, and each one has reached the same conclusion reached by this court. See United States v. White, 551 F.3d 381, 384-86 (6th Cir. 2008) (en banc); United States v. Mercado, 474 F.3d 654, 656-58 (9th Cir. 2007) (collecting cases from every numbered circuit but the Sixth).  

I have emphasized a phrase from the middle of this paragraph because I actually believe there are at least two SCOTUS rulings since the DC Circuit addressed this issue in Settles and Dorcely that arguably "calls their validity into question."  Specifically, just from 2013, the Supreme Court's Peugh decision (basics here) and especially its Alleyne decision (basics here and here) provide a reasonable basis to question the continued validity of severe acquitted conduct guideline enhancements.  A fair reading of Alleyne suggests that judicial fact-finding as to facts which "alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment" can be constitutional problematic even if these facts do not raise the applicable statutory maximum sentence.

Critically, I am not asserting that the 2013 SCOTUS rulings Peugh and/or Alleyne now require reversal of old circuit precedents upholding major acquitted conduct enhancements.  But I do strongly believe that 2013 SCOTUS rulings Peugh and/or Alleyne raise significant new questions about old circuit precedents upholding major acquitted conduct enhancements.  Consequently, I find this cursory treatment of what strikes me as a significant sentencing issue in a significant case to be disconcerting.

That all said, perhaps the "optimistic" way to read this opinion is as an invitation to Ball and others to see en banc review of old circuit precedent upholding major acquitted conduct enhancements.  At the very least, given that Ball still likely has a decade in federal prison left for his $600, half-ounce, hand-to-hand crack-cocaine deal in 2001, I hope he seriously considers pursuing further appeals of his sentence.

Some old posts on the Ball case and acquitted conduct sentencing enhancements:

March 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

Thursday, March 13, 2014

"Attorney General Holder Urges Changes in Federal Sentencing Guidelines to Reserve Harshest Penalties for Most Serious Drug Traffickers"

The title of this post is the title given by the Justice Department to this press release with AG Holder's statements to the US Sentencing Commission concerning drug guideline reform.  Here are just a few highlights:

The Justice Department strongly supports the Commission’s proposed change to the Drug Quantity Table. If adopted, this amendment would lower by two levels the base offense levels associated with various drug quantities involved in drug trafficking crimes. This would have the effect of modestly reducing guideline penalties for drug trafficking offenses while keeping the guidelines consistent with current statutory minimums – and continuing to ensure tough penalties for violent criminals, career criminals, or those who used weapons when committing drug crimes.

This straightforward adjustment to sentencing ranges – while measured in scope – would nonetheless send a strong message about the fairness of our criminal justice system. And it would help to rein in federal prison spending while focusing limited resources on the most serious threats to public safety. Let me be clear, my primary obligation as Attorney General is to ensure the safety of the American people. The changes that I have implemented over the past year are designed to do exactly that – while making our system more fair and more efficient.

This proposed amendment is consistent with the “Smart on Crime” initiative I announced last August. Its implementation would further our ongoing effort to advance commonsense criminal justice reforms. And it would deepen the Department’s work to make the federal criminal justice system both more effective and more efficient when battling crime and the conditions and behaviors that breed it.

March 13, 2014 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Previewing what AG Holder will say about drug sentencing to US Sentencing Commission

As noted in this prior post, Attorney General Eric Holder is, according to this official agenda, the first scheduled witness at the US Sentencing Commission's important public hearing today on proposed amendments to reduce drug sentencing terms in the federal sentencing guidelines. The full text of what AG Holder says will likely be available on line later today, but this new Washington Post article, headlined "Holder will call for reduced sentences for low-level drug offenders," provides a preview of what he plans to say (which my emphasis below on an especially notable development) and some context for his latest sentencing reform advocacy:

Attorney General Eric H. Holder Jr. on Thursday will urge reduced sentences for defendants in most of the nation’s drug cases, part of his effort to cut the burgeoning U.S. prison population and reserve stiff penalties for the most violent traffickers.

Holder’s proposal, which is expected to be approved by the independent agency that sets sentencing policies for federal judges, would affect 70 percent of drug offenders in the criminal justice system, according to figures provided by Justice Department officials. It would reduce sentences by an average of nearly a year.

“Certain types of cases result in too many Americans going to prison for far too long, and at times for no truly good public safety reason,” Holder plans to tell the U.S. Sentencing Commission, according to excerpts of his testimony provided to The Washington Post. “Although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.”

Like Holder’s previous criminal justice reforms, the move is likely to be hailed by civil liberties groups and assailed by some lawmakers who think the administration is chipping away at federal policies designed to deter criminals and improve public safety.

The seven-member sentencing panel has proposed an amendment to federal sentencing guidelines and will vote on it as soon as April. Until then, federal judges must refer to current sentencing guidelines. Holder, however, will instruct his prosecutors in a memo Thursday not to press judges to impose the longer sentences in the current guidelines if attorneys for drug offenders seek shorter sentences for their clients that would be permissible under the new policy.

Under current mandatory minimum guidelines, a drug offender convicted of possessing 500 grams of cocaine or 28 grams of crack would face a term of 63 to 78 months. Holder is proposing that the time in such a case be reduced to 51 to 63 months. “By reserving the most severe penalties for dangerous and violent drug traffickers, we can better protect public safety, deterrence and rehabilitation while saving billions of dollars and strengthening communities,” Holder plans to say. The lower sentencing ranges would result in a 17 percent decrease in the average length of time imposed on a drug offender, Justice Department officials said.

Holder’s new sentencing proposal is the latest step in his agenda to revise the criminal justice system. In August, he announced that low-level nonviolent drug offenders with no connection to gangs or large-scale drug organizations would not automatically be charged with offenses that call for severe mandatory sentences. That measure, however, didn’t address the sentencing ranges defendants could face under federal guidelines.

Holder’s latest policy change would reduce the Bureau of Prison population by 6,550 people within five years, according to the Justice Department. Of the more than 216,000 federal inmates, nearly half are serving time for drug-related crimes. At the same time it is seeking to reduce sentences for nonviolent offenders, the Justice Department is putting greater focus on violent traffickers who bring heroin and other drugs into the United States....

Holder’s efforts to reduce the prison population have drawn criticism from Sen. Charles E. Grassley (Iowa), the ranking Republican on the Senate Judiciary Committee, and other lawmakers who say the administration is undermining policies that were set up to deter would-be criminals.

But many of Holder’s criminal justice policies have been praised by civil liberties groups and have bipartisan support in Congress. A bill that Holder and the Obama administration support to reform prison sentences includes both Republican and Democratic sponsors, including Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Mike Lee (R-Utah).

Last week, at the Conservative Political Action Conference at National Harbor, Md., Republican Texas Gov. Rick Perry said that prison reform is one issue on which he agrees with Holder. “There aren’t many things that the president and the attorney general and I agree about. Know what I mean?” said Perry, who ran for president in 2012.

As noted in this post, I will be off-line most of today in order to travel to and participate in a Sixth Circuit oral argument. But I should be able to provide additional coverage and review of all the sentencing reform action taking place today at the USSC's public hearing before the end of the day.

Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:

March 13, 2014 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, March 12, 2014

Attorney General to testify about drug guideline reform before US Sentencing Commission

I am pleased and very intrigued to now see from this agenda that the first scheduled witness at the US Sentencing Commission's public hearing scheduled to be held tomorrow morning to receive testimony on proposed amendments to the federal sentencing guidelines is none other than the Honorable Eric H. Holder, Jr., Attorney General of the United States. I was already excited about what would develop as the USSC heard from folks about its proposal to cut the drug sentencing guidelines across the board (discussed here), but I now think this hearing could end up being historic as well as interesting. 

I cannot recall the US Attorney General ever testifying directly before the US Sentencing Commission, even in the wake of Blakely and Booker and all the uncertainty and reform that was being robustly discussed by all the branches during the transformation of the federal sentencing system and the guidelines as a result of major SCOTUS ruling. And though I am not an expert on USSC history, I think this may be the first time that a sitting Attorney General has testified directly at a USSC hearing.

This development confirms my view that AG Holder wants federal drug war reform to be a big part of his legacy, and I think any and everyone interested in the federal sentencing system and the broader national war on drugs ought to pay very close attention to what takes place tomorrow morning in the Mecham Conference Center in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., Washington, DC.

March 12, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (14) | TrackBack