Friday, August 21, 2015
"Who Built Prison America? Not Ted Kennedy"
Regular readers may recall a couple posts earlier this year (here and here) noting a fascinating book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America. Interestingly, Ron Weich, a prominent former staffer for Senator Ted Kennedy has this new commentary at The Crime Report (with the same headline of this post) asserting it is wrong to lay blame on Senator Kennedy for modern mass incarceration. Here are excerpts:
One of Kennedy’s most far-reaching bipartisan accomplishments was the Sentencing Reform Act of 1984. Yet this law serves as Exhibit A for Professor Murakawa’s theory that liberals bear responsibility for the failed criminal justice policies of that era. She blames the sentencing guideline system established by the Act for contributing to mass incarceration and accuses Sen. Kennedy of advancing unduly punitive policies....
Murakawa has harsh words for all who supported the 1984 Act, but she singles out Kennedy for special criticism. She decries the fact that the man she calls “the liberal lion of the Senate” included in the law various “carceral” elements such as the abolition of parole and a reduction in the availability of good-time credits for prisoners. She tracks changes in the sentencing bills Kennedy introduced from 1977 to 1984 and argues that his bills became increasingly punitive. She regards Kennedy as a “hard test case for my claim that Democrats aided, abetted, and legitimized a punitive law and order regime.”
The first flaw in the Murakawa book is its subtitle: How Liberals Built Prison America. No fair observer of criminal justice policy could conclude that liberals -- or conservatives or Democrats or Republicans -- bear sole responsibility for the spike in incarceration over the past half century. Rather, these disastrous criminal justice policies were a bipartisan misadventure that reflected the nation’s anger and fear about crime.
Every crime bill enacted by Congress in the 1980s and 1990s passed with broad bipartisan majorities and the support of leaders from both political parties. Only a handful of liberal House Democrats sometimes voiced concern. The Senate often passed crime bills by unanimous consent.
It is certainly fair to criticize Kennedy and other liberals for supporting bad crime bills. But they did not build “Prison America” by themselves, as the subtitle of Murakawa’s book unfairly suggests.
Murakawa’s narrative also fails to appreciate the complex collaborative nature of the legislative process. She attributes to Kennedy personally the flaws she perceives in his bills. Yes, he was a lead sponsor of the Sentencing Reform Act, but he did not write the law in a vacuum. The bill’s text is the product of years of negotiations with [Strom] Thurmond and many other members of the Senate, as well as committee markups and floor debates.
Murakawa acknowledges, but does not emphasize, the huge influence of the Justice Department in shaping the final law. It is no surprise that a bill first introduced during President Jimmy Carter’s administration became more conservative by the time it was signed into law by President Ronald Reagan.
Too often, Murakawa conflates the role of the guideline system and mandatory minimum sentencing laws in contributing to overincarceration. Many of the most draconian mandatory minimums for drug and gun crimes were enacted in 1986, after the passage of the Sentencing Reform Act of 1984 but before the guidelines took effect in 1987. Kennedy recognized that mandatory minimums were unjustified once the guideline system had been established. He repeatedly argued that guidelines are a reasonable mechanism to restrain judicial discretion, whereas mandatory minimums are blunt and unyielding.
Throughout the 1990s Kennedy fought against mandatory minimum sentencing proposals, as I detailed in my article “The Battle Against Mandatory Minimums: A Report from the Front Lines.”
He championed the safety-valve provision (18 USC 3553(f)) in the 1994 crime bill, which allows certain low-level, nonviolent offenders to be sentenced below applicable mandatory minimums. In fact, in his 1994 reelection race against Mitt Romney, Kennedy faced brutal ads claiming he was soft on crime because he had opposed mandatory sentencing.
Kennedy and other liberals can be faulted for voting in favor of the 1986 crime bill and other bills which contained mandatory minimums, but they did not lead the charge for those policies as Kennedy had for a guideline system. In fact, Sen. Kennedy was a leader in opposing mandatory minimums once their effect became clear and their inconsistency with the guideline system became apparent.
More generally, Kennedy was a voice for more rational criminal justice policies. He always opposed capital punishment and, as Prof. Murakawa notes, led the unsuccessful fight to pass the Racial Justice Act which would have allowed capital defendants to challenge their sentences using statistical evidence of racial bias....
Professor Murakawa has written a thoughtful, comprehensive academic study of federal sentencing policies. A book like hers provides an important service, but it cannot be expected to take account of the rough-and-tumble aspects of the legislative arena. During his long political career, Sen. Kennedy endured criticism that was a lot harsher and less fair than that contained in Murakawa’s book.
As someone who has been involved in criminal justice policy for many years, both before and after I worked for Sen. Kennedy, I share Murakawa’s concern about America’s overreliance on incarceration. I also applaud the current trend toward more sensible sentencing policies.
I have no doubt that if Sen. Kennedy were alive today, he would be leading the charge for criminal justice reforms. And he would be doing so in a bipartisan manner, working with Sens. Rand Paul, Mike Lee and other unlikely bedfellows. That was his way.
Prior related posts:
- "How White Liberals Used Civil Rights to Create More Prisons"
- Political scientist highlights how Ted Kennedy and Joe Biden helped produce modern mass incarcertation
August 21, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Monday, August 17, 2015
"Does the Calculation Matter? The Federal Sentencing Guidelines and the Doctrine of Alternate Variance Sentences"
The title of this post is the title of this notable federal sentencing paper available via SSRN authored by James Harlow. Here is the abstract:
The Federal Sentencing Guidelines play a central role in the sentencing of federal criminal defendants. A decade ago, in United States v. Booker, the Supreme Court undercut the original purpose for the Guidelines — to bring binding structure to a previously discretionary sentencing scheme — by declaring that the Guidelines were advisory only.
Even though advisory, the Guidelines remain at the procedural heart of the sentencing process and provide “the framework for sentencing.” All sentencing proceedings in the district court begin with the proper calculation of the advisory Guidelines range. Similarly, on review, the courts of appeals initially determine whether the sentencing process was free of procedural errors, including whether the advisory Guidelines range was correctly calculated.
However, the Guidelines are no longer the beginning and end of a sentencing hearing. A defendant’s advisory Guidelines range is but one of several important factors enumerated in 18 U.S.C. § 3553(a) that a sentencing court must consider. In a case when other, non-Guidelines considerations clearly steered the sentencing court’s discretion, should it matter whether the advisory Guidelines range was correctly calculated in the first place?
This Article examines the Fourth Circuit’s emergent and evolving doctrine of alternate variance sentences. Under this doctrine, a sentence will not be vacated even if the sentencing court may have erred when calculating the advisory Guidelines range. If it is clear from the record that an advisory Guidelines issue did not influence the ultimate sentence, the appellate panel will assume any Guidelines errors are harmless and proceed to evaluate whether the sentence is substantively reasonable. The doctrine's increasingly frequent application has a significant impact on all actors in the federal criminal sentencing process — prosecutors, defense counsel, defendants, and judges. Moreover, the doctrine implicates important debates about the meaning and effect of the Guidelines after Booker, the distribution of power between district and appellate judges in sentencing, and judicial efficiency.
Monday, August 10, 2015
Could USSC's proposed amendment dealing with SCOTUS Johnson ruling be made retroactive (and how many federal prisioners could then get reduced sentences)?
Readers know that I have been making much of the potential practical impact of the Supreme Court's big ruling in Johnson v. United States, 135 S. Ct. 2551 (June 26, 2015) (available here). Johnson declared that that a key clause defining violent offenses in the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws." I have made much of the Johnson ruling's potental impact in part because its holding is inevitably going to echo for quite some time — in some ways predictable and in some ways unpredictable — through other important parts of federal sentencing law.
Perhaps the biggest early post-Johnson federal sentencing echo emerged late last week when, as reported in this US Sentencing Commission news release, the USSC put forth "proposed changes to the existing guideline definitions of a 'crime of violence' [which are] primarily intended to make the guideline consistent with the Supreme Court’s recent decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015)." This recent post provides the basic details of what the USSC is proposing, and all the official details appear in this USSC document.
I am still working through the potential import and impact of what the USSC is proposing, and the USSC itself stresses that its proposed guideline amendment is not just preliminary. But, as the question in the title of this post suggests, the import and impact of what the USSC is proposing would be that much bigger and that much more consequential if any USSC post-Johnson amendments were to be made fully retroactive by the Commission to all federal prisoners currently serving long guideline-career-offender-based sentences.
As hard-core federal sentencing practitioners know, sorting through whether, how and for whom guidelines amendments are made retroactive can be a tough slog both legally and practically. But because many current prisoners potentially impacted any post-Johnson guideline amendments may already be able to bring Johnson-based constitutional challenges to their existing sentences, it might actually prove more efficient and effective for all actors in the federal sentencing system for the USSC to make any of its post-Johnson guideline amendments fully retroactive — rather than to have everyone in the system await court rulings (and inevitable circuit splits?) on just what Johnson means for prisoners now serving long prison sentences based on the existing (constitutionally suspect) guideline definitions of "crime of violence."
Some prior posts on Johnson and its possible impact:
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- What does Johnson mean for the past, present and future of the career offender guidelines?
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import
- Has any post-Johnson ACCA (or career offender) prisoner litigation now gotten started?
Friday, August 07, 2015
US Sentencing Commission proposes guidelines amendments to deal with SCOTUS Johnson ruling
I just finished watching on-line the brief public meeting today of the US Sentencing Commission, and the efficient event tracked closely this on-line notice/agenda. Ever the efficient agency, within minutes of the conclusion of the meeting, the USSC got up on its website this news release reporting on the Commission's significant actions today:
The United States Sentencing Commission voted today to seek comment on proposed changes to the existing guideline definitions of a “crime of violence.” The proposed changes are primarily intended to make the guideline consistent with the Supreme Court’s recent decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015).
In Johnson, the Supreme Court struck down as unconstitutionally vague a portion of the statutory definition of “violent felony” used in a similar penalty provision in the Armed Career Criminal Act (ACCA). While the Supreme Court in Johnson did not consider or address sentencing guidelines, the statutory language the Court found unconstitutionally vague, often referred to as the “residual clause,” is identical to language contained in the “career offender” sentencing guideline, and other guidelines which enhance sentences based on prior convictions for a crime of violence.
Consistent with Johnson, the proposal would eliminate from the guideline definition of “crime of violence” the residual clause, which provides that a “crime of violence” includes a felony offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another. In addition, the proposal would provide definitions for several enumerated crimes of violence.
“We already see litigation over the impact of Johnson on the sentencing guidelines,” said Judge Patti B. Saris, Chair of the Commission. “In light of uncertainty resulting from the Johnson decision, we feel that it is prudent to begin considering whether, as a matter of policy, the guidelines should also eliminate the residual clause. We want to begin the process of seeking public comment so that the Commission could vote on a guideline amendment as early as possible, perhaps as soon as January 2016. However, this proposal is only preliminary and we look forward to public comment furthering informing us on this complex topic. We also intend to continue to study recidivist enhancements including those based on prior drug convictions in the guidelines throughout the upcoming amendment cycle.”
The Commission also unanimously approved its list of priorities for the coming year. Among its top priorities again is continuing to work with Congress to reduce the severity and scope of certain mandatory minimum penalties and to consider expanding the “safety valve” statute that exempts certain low-level non-violent offenders from mandatory minimum penalties.
“The Commission has taken some steps on its own to reduce federal drug sentences and relieve some of the overpopulation in the federal prisons, but only Congress can make the more fundamental changes needed to address the severity and disparity problems associated with certain mandatory minimum penalties,” said Judge Saris. “We look forward to continuing to work with Congress on this vital issue.”
The Commission will continue to work on several multi-year projects, including an examination of the overall structure of the advisory guideline system, a comprehensive recidivism study, and a review of federal practices relating to the imposition and violations of conditions of probation and supervised release and immigration.
Here are the two key documents released by the Commission on its website today that reflect and detail the summary provided by the press release:
Monday, August 03, 2015
US Sentencing Commission releases big report on 5-year impact of Fair Sentencing Act
As reported in this official USSC news release, today "the United States Sentencing Commission submitted to Congress its report assessing the impact of the Fair Sentencing Act of 2010, which among other things reduced the statutory 100-to-1 drug quantity ratio of crack to powder cocaine." Here are highlights of an encouraging report via the news release:
Chief Judge Patti B. Saris, Chair of the Commission, said: “We found that the Fair Sentencing Act reduced the disparity between crack and powder cocaine sentences, substantially reduced the federal prison population, and resulted in fewer federal prosecutions for crack cocaine. All this occurred while crack cocaine use continued to decline.”
To assess the impact of the FSA, the Commission analyzed external data sources and undertook statistical analyses of its own federal sentencing data spanning before and after the enactment of the FSA. Among other things, the study shows that:
• Many fewer crack cocaine offenders have been prosecuted annually since the FSA, although the number is still substantial;
• Crack cocaine offenders prosecuted after the FSA are, on average, about as serious as those prosecuted before the FSA;
• Rates of crack cocaine offenders cooperating with law enforcement have not changed despite the reduction in penalties; and,
• Average crack cocaine sentences are lower, and are now closer to average powder cocaine sentences.
The full report, which runs almost 100 pages including all its materials is available at this link. The USSC's website now has this terrific page with various report-related materials and links for easy consumption of all the data in the report.
August 3, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)
Friday, July 31, 2015
ABA Journal spotlights continued child porn federal sentencing challenges
This article in the August 2015 issue of the ABA Journal, headlined "Minors Sentence: Courts are giving reduced terms to many child-porn defendants," provides an review of the enduring difficulties federal courts face when sentencing certain offenders convicted of using new technologies to download illegal dirty pictures. Here is an excerpt:
Courts’ reaction to child pornography sentencing is part of a pushback against sentencing guidelines after U.S. v. Booker and U.S. v. Kimbrough, two Supreme Court opinions filed in 2005 and 2007 that found the federal sentencing guidelines advisory, not mandatory. As a result, courts have undercut child pornography sentencing guidelines when the images are taken from P2P programs.
According to one study cited in a 2012 U.S. Sentencing Commission report, 85.3 percent of child pornography distribution convictions in the first quarter of fiscal year 2012 involved P2P programs. Of offenders who used the programs, 55.6 percent distributed images solely with an open P2P program.
The study also found that the rate of known sexual recidivism for nonproduction offenders was 7.4 percent. The agency suggested that Congress revise the nonproduction child pornography sentencing scheme, because crimes stemming from downloads involve less culpability.
If prosecutors think that a child pornography defendant’s mental health contributed to the crime, and that the individual is sincere about rehabilitation and is not a child predator, they will agree to diminished incarceration plea agreements, says Raymond Cassar, a Farmington Hills, Michigan, defense lawyer....
One such case involved Nicholas Dubin, who has Asperger’s syndrome. According to a government sentencing memo, the FBI logged on to a P2P network in 2010 and identified 12 files on Dubin’s computer. More than half contained child pornography. The government obtained a search warrant for his home and found “several hundred to 1,000 images” of child pornography on his computer....
At the time of his arrest Dubin was the dean of students at a high school. In 2013, he pleaded guilty to one count of child pornography possession, and his sentencing range under the guidelines was between 97 and 120 months. The government, however, agreed to sentence Dubin to one day in federal custody, with credit for time served, and five years of supervised release. A 2013 sentencing memo submitted by the Eastern District of Michigan’s U.S. attorney’s office notes that people with autism spectrum disorders often have limited intimate relationships. The document also asserts that Dubin, who had no prior criminal record, was remorseful about his actions and had focused his therapy to understand why his crime was harmful.
“A sentence of one day time served does not, in any way, adequately reflect the seriousness associated with the possession of child pornography,” the government wrote. “However, in this exceptional case, a noncustodial sentence will effectively promote respect for the law and provide just punishment.”
To some, child pornography offenders may not seem as dangerous anymore, because their profile has changed, says Melissa Hamilton. A visiting criminal law scholar at the University of Houston Law Center, her research focuses on violence, sex crimes and sentencing. “Going to a physical location and buying child pornography off the shelf or sending away money to get it by mail,” she says, involves more culpability than searching for it online. The sentencing guidelines, she adds, were written before the uptick in prosecutions involving child pornography from P2P programs, and it’s unlikely that they’ll change in the near future.
“It’s a political hot potato to say that people who view child pornography aren’t that dangerous,” Hamilton says. “I have noticed some instances where very senior judges, who are reflecting [on the defendants they sentence] sometimes write long opinions saying that the child pornography downloaders don’t look as scary and risky, in terms of other violent offenders before them.”
Executive facing "unprecedented" LWOP sentence for food-poisoned peanut butter
I just came across this AP story from last week reporting on a notable sentence being urged by federal guidelines in a notable white-collar case. Here are the details:
Federal court officers have recommended a sentence of life in prison for a peanut company executive convicted of selling salmonella-tainted food, a move that attorneys on both sides called “unprecedented” for a food-poisoning case. The potential life sentence for former Peanut Corporation of America owner Stewart Parnell was disclosed by prosecutors in a court filing Wednesday. Parnell, 61, is scheduled to be sentenced Sept. 21 by a federal judge in Albany, Georgia....
Stewart Parnell ran the now-defunct company from his Bedford County home, just outside Lynchburg city limits. Parnell's defense attorneys confirmed the recommendation Thursday to The Associated Press, calling the possible punishment “unprecedented.” Bill Marler, a lawyer for victims sickened by peanut butter from Parnell's southwest Georgia plant, used the same word.
In fact, Marler and other experts say the trial of Parnell and two co-defendants last year was the first federal food-poisoning case to be tried by an American court. A jury convicted Parnell of 71 counts including conspiracy, obstruction of justice, wire fraud and other crimes related to a salmonella outbreak in 2008 and 2009. The Centers for Disease Control linked the outbreak to nine deaths and 714 illnesses. It prompted one of the largest food recalls in U.S. history.
Justin Lugar, one of Parnell's defense attorneys, confirmed Thursday that the recommendation before Judge W. Louis Sands is for life in prison, with no lesser range. Parnell's lawyers are trying to persuade the judge to disregard numbers used as aggravating factors to boost the suggested sentence to its maximum: an estimate that Parnell's customers suffered $144 million in losses as well as health officials’ tally that 714 people got sick....
“That recommendation is truly absurd,” said Ken Hodges, an attorney on Parnell's defense team. “We hope the judge will see that Stewart Parnell never meant to hurt anyone. He ate the peanut butter himself. He fed it to his children and to his grandchildren.”...
“Life in prison, especially in a food case, it's frankly unprecedented,” said Marler, who has represented victims of food-borne illnesses for two decades. “But the case itself, on a factual basis, is unprecedented.” Marler said he suspects the judge and prosecutors will think carefully before deciding to pursue a life sentence for Parnell. Still, he said, even the possibility of such a stiff sentence sends a message to food companies....
Even if objections raised by Parnell's attorneys to the sentencing recommendation are denied, it's still possible the judge could impose a lighter sentence. Federal judges are required to consider recommendations based on complex sentencing guidelines, but they are not bound by them.
Parnell and his co-defendants were never charged with sickening or killing anybody. Instead prosecutors used the seven-week trial to lay out a paper trail of emails, lab results and billing records to show Parnell's company defrauded customers by using falsified test results to cover up lab screenings that showed batches of peanut butter contained salmonella. The tainted goods were shipped to Kellogg's and other food processors for use in products from snack crackers to pet food.
Prosecutors wrote that court officers “correctly calculated” Parnell's recommended sentence, but stopped short of saying whether they plan to ask the judge to impose a life sentence. A spokeswoman for the Justice Department in Washington, Nicole Navas, declined to comment.
Prosecutors’ legal briefs also noted stiff sentences were recommended for Parnell's two co-defendants. Punishment of 17 to 21 years in prison was recommended for Parnell's brother, food broker Michael Parnell, who was convicted on fewer counts. The recommendation for Mary Wilkerson, the Georgia plant's quality control manager, was eight to 10 years. She was convicted of obstruction of justice.
Thursday, July 30, 2015
Will Senator Grassley's (still-developing) sentencing reform bill make it to the President's desk in 2015?
The question in the title of this post is prompted by this new National Journal article providing the latest news on the on-going Senate discussions of a new sentencing reform bill spearheaded by Senate Judiciary Chair Charles Grassley. The piece is (misleadingly?) headlined "Chuck Grassley's Closer Than Ever to Giving in on Mandatory-Minimum Reform," and here are excerpts:
Grassley could be just days away from unveiling a major bipartisan justice-reform package that would seek to reduce recidivism and give inmates the chance to reduce their sentences with good behavior. The bill also will offer changes to the way judges dole out mandatory minimums.
Grassley has moved on the issue of mandatory minimums. While a bipartisan group of senators is still working on the final bill, it's clear that the Republican from Iowa has come a long way. "The points of negotiation are the ones you would expect, about in what areas mandatory minimums should be adjusted and to where they should be adjusted," says Democratic Sen. Sheldon Whitehouse, a key negotiator for justice reform in the Senate.
Unlike four months ago, today it is understood that any justice-reform package will include provisions that give judges more flexibility on sentencing. Behind the scenes, Grassley has fought to ensure that the provisions in the bill are not just rehashes of the Smarter Sentencing Act he was opposed to, but changes in mandatory minimums are coming. "It's not as far as I would like, but we are getting somewhere," Sen. Patrick Leahy, a sponsor of the Smarter Sentencing Act, told National Journal.
On mandatory minimums, Grassley insisted earlier this year that senators negotiate from scratch. "It was a long process, and he came in insisting on a different approach and we said, 'All right, let's take your approach and see how close we can come to our goal.' And he has worked in good faith with us and we're close," says Minority Whip Dick Durbin.
At this point, senators on both sides of the aisle report negotiations are closer than they have ever been. Senators have agreed that high-risk offenders, who are considered dangerous either because they deployed a weapon in a crime or have a history of violence, won't be eligible for the so-called safety valve. A narrow subset of nonviolent drug offenders will be.
"What we are trying to do is to make sure that those who are guilty of drug offenses do not have other aggravating factors such as using a gun, violence, or gang activity. We are working through the language very carefully on that," Durbin said. "How do we get the gang leaders and the brains of the gang separated from the rank and file?"
Many of the so-called back-end reforms that focus on giving prisoners a better chance of success after incarceration are borrowed from Republican Sen. John Cornyn and Sen. Whitehouse's Corrections Act.... The proposals in the Corrections Act focus on giving inmates the opportunity to get jobs and exhibit a propensity for success. Some low-level offenders can even work their way up to qualifying to serve the final weeks and months of their sentence supervised in the community.
Even once the new bill is introduced, however, there will still be changes made to it. And any legislation that makes it to the floor of the U.S. Senate will likely undergo a vigorous amendment process.
Other senators who have worked on criminal-justice reform before already see the upcoming legislation as an opportunity to advance their own causes. Sen. Tim Scott, a Republican from South Carolina, has introduced a bill to grant local law enforcement agencies $500,000,000 for body cameras over a five-year period. Scott says that arming agencies with cameras will help stem tensions between police and the communities they patrol. The floor may be another place for senators to add more stringent reductions in mandatory minimums.
Though Senator Grassley has been promising that "his" bill will be ready for prime time before the Senate takes its August recess, I remain fearful that the press of other legislative activities (as well as enduring opposition from the tough-and-tougher crowd) may prevent any significant federal sentencing reform from getting done before the end of the year. I hope my pessimism in this area is proven wrong; but given that we have already had more than two years of "momentum" and bipartisan talk of federal sentencing reform while no bill has even made it out of one congressional chamber, I am not going to count any sentencing reform chickens until they are doing the chicken dance on a desk in the Oval Office.
Tuesday, July 21, 2015
"Sentencing the Wolf of Wall Street: From Leniency to Uncertainty"
The title of this post is the title of this notable new paper now available via SSRN authored by Lucian Dervan. Here is the abstract:
This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today.
In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud. This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders. In concluding this initial examination, the Article discusses three observed trends. First, today, as might be expected, it appears there are much longer sentences for major white-collar offenders as compared to the 1980s and 1990s. Second, today, there also appears to be greater uncertainty and inconsistency regarding the sentences received by major white-collar offenders when compared with sentences from the 1980s and 1990s. Third, there appear to have been much smaller sentencing increases for less significant and more common white-collar offenders over this same period of time.
In Part III, the Article examines some of the possible reasons for these observed trends, including amendments to the Federal Sentencing Guidelines, increased statutory maximums, and judicial discretion. In concluding, the Article offers some observations regarding what the perceived uncertainty and inconsistency in sentencing major white-collar offenders today might indicate about white-collar sentencing more broadly. In considering this issue, the Article also briefly examines recent amendments adopted by the U.S. Sentencing Commission and proposed reforms to white-collar sentencing offered by the American Bar Association.
Thursday, July 16, 2015
"From a First Arrest to a Life Sentence"
The title of this post is the headline of this new Washington Post article, which carries the subheadline "Clemency is the only way out for the thousands of nonviolent drug offenders serving life terms in federal prison." Here are excerpts from the start of the lengthy piece, as well as some details of the profiled LWOP defendant's case:
Sharanda Jones — prisoner 33177-077 — struggled to describe the moment in 1999 when a federal judge sentenced her to life in prison after her conviction on a single cocaine offense. She was a first-time, nonviolent offender.
“I was numb,” Jones said in an interview at the Carswell women’s prison here. “I was thinking about my baby. I thought it can’t be real life in prison.” Jones, who will turn 48 next week, is one of tens of thousands of inmates who received harsh mandatory minimum sentences for drug offenses during the crack-cocaine epidemic, and whose cases are drawing new attention....
Because of her role as a middle woman between a cocaine buyer and supplier, Jones was accused of being part of a “drug conspiracy” and should have known that the powder would be converted to crack — triggering a greater penalty.
Her sentence was then made even more severe with a punishment tool introduced at the height of the drug war that allowed judges in certain cases to “enhance” sentences — or make them longer. Jones was hit with a barrage of “enhancements.”
Her license for a concealed weapon amounted to carrying a gun “in furtherance of a drug conspiracy.” Enhancement.
When she was convicted on one count of seven, prosecutors said her testimony in her defense had been false and therefore an “obstruction of justice.” Enhancement.
Although she was neither the supplier nor the buyer, prosecutors described her as a leader in a drug ring. Enhancement.
By the end, Jones’s sentencing had so many that the federal judge had only one punishment option. With no possibility of parole in the federal system, she was, in effect, sentenced to die in prison.
Jones almost certainly would not receive such a sentence today. Federal sentencing guidelines in similar drug cases have changed, in particular to end disparities in how the courts treat crack cocaine vs. powder cocaine. And, following a 2005 Supreme Court decision, judges have much greater discretion when they mete out punishment. In the past decade, they gave lower sentences by an average of one-third the guideline range, according to the U.S. Sentencing Commission.
But a lingering legacy of the crack epidemic are inmates such as Jones. About 100,000 federal inmates — or nearly half — are serving time for drug offenses, among them thousands of nonviolent offenders sentenced to life without the possibility of parole, according to the American Civil Liberties Union. Most are poor, and four in five are African American or Hispanic.
In the spring of 2014, then-Attorney General Eric H. Holder Jr. — who had called mandatory minimum sentences “draconian” — started an initiative to grant clemency to certain nonviolent drug offenders in federal prison. They had to have served at least 10 years of their sentence, have no significant criminal history, and no connection to gangs, cartels or organized crime. They must have demonstrated good conduct in prison. And they also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today.
Jones applied. It has been a halting process, however. Only 89 prisoners of the more than 35,000 who have filed applications have been freed. They include 46 inmates who were granted clemency on Monday by Obama. Jones wasn’t among them....
On Aug. 26, 1999 — after days of testimony about drug deals by people nicknamed “Weasel,” “Spider,” “Baby Jack” and “Kilo,” and a dramatic moment when Jones’s quadriplegic mother was wheeled into the courtroom — the jury acquitted Jones of all six charges of possession with intent to distribute crack cocaine and aiding and abetting. But they found her guilty of one count of conspiracy to distribute crack cocaine.
Although no drugs were ever found, U.S. District Judge Jorge Solis determined that Jones was responsible for the distribution of 30 kilograms of cocaine. He arrived at that number based on the testimony of the co-conspirators — the couple who received sentences of seven and eight years, and the Houston dealer, who got 19.5 years. All have since been released.
The judge determined that Jones knew or should have known that the powder was going to be “rocked up” — or converted to crack. Using a government formula, the prosecutor said that the 30 kilograms of powder was equal to 13.39 kilograms of crack cocaine. He then added 10.528 kilograms of crack cocaine that the prosecutors said had been distributed in Terrell and was linked to Jones’s brother. (The U.S. Court of Appeals for the 5th Circuit affirmed the conviction, but said there was “barely” any evidence of Jones’s connection to the crack distributed in Terrell.)
The judge’s calculation made Jones accountable for 23.92 kilograms of crack. That, added to the gun and obstruction enhancements, as well as Jones’s role as an “organizer,” sealed her sentence under federal rules that assign numbers to offenses and enhancements. The final number — 46 — dictated the sentence, leaving the judge no discretion.
“Under the guidelines, that sets a life sentence, mandatory life sentence,” Solis said at a hearing in November 1999. “So, Ms. Jones, it will be the judgment of the court that you be sentenced to the custody of the U.S. Bureau of Prisons for a term of life imprisonment.” Solis declined to be interviewed. Said McMurrey: “In light of the law and the guidelines and what the court heard during the trial, I know Judge Solis followed the law. He’s a very fair man.”
The sentencing scheme that sent Jones to prison has been widely denounced by lawmakers from both political parties. And sentences have been greatly reduced for drug offenses. But the differing approaches over time have led to striking disparities.
One illustration: The Justice Department announced last month that one of Colombia’s most notorious drug traffickers and a senior paramilitary leader will serve about 15 years in prison for leading an international drug trafficking conspiracy that imported more than 100,000 kilograms of cocaine into the United States.
The jurors who found Jones guilty were never told about the life sentence, which came months after the trial. Several of them, when contacted by The Washington Post, were dismayed. “Life in prison? My God, that is too harsh,” said James J. Siwinski, a retired worker for a glass company. “That is too severe. There’s people killing people and getting less time than that. She wasn’t an angel. But enough is enough already.”
Wednesday, July 15, 2015
Fascinating new drug guideline resentencing opinion from Judge Jack Weinstein
Judge Jack Weinstein is a justifiably legendary federal judge (whom, I must note, will be turning 94 in a few weeks). Among the reasons Judge Weinstein is justifiably legendary is his ability to author remarkable (and remarkable long) opinions on an array of federal legal subjects. Today I learned of his latest such opinion in in US v. Alli-Balogun, 92–CR–1108 (E.D.N.Y July 15, 2015) (available for download below). Here is how the opinion starts:
The case is a remarkable one. Though the drug case was nasty, the long-term imprisonment, by today’s standards, was excessive. Defendant has served 273 months in prison while his wife and children established high status employment in banking and medicine. See Hr’g Tr., July 15, 2015. Throughout his incarceration, he has maintained close contact with his family. Id. This resentence provides an opportunity to rectify, in modest degree, an unnecessarily harsh sentence imposed in crueler times.
The next 70+ pages goes on to discuss (and break a little new ground) the defendant's motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2) and his challenge to his his conviction under 28 U.S.C. § 2255. (For the record, the defendant bats .500 in his efforts.)
Politico article suggests real federal sentencing reform poised to become a reality
Almost exactly two years ago, in this July 2013 post reflecting frustration hearing lots of federal sentencing reform talk and relatively little major sentencing reform action, I speculated that the GOP gaining control of the US Senate along with the House might actually make the enactment of some significant federal sentencing reform more likely before the end of the Obama era. Thus today, thanks to this Politico article reporting on where developments in the GOP-controlled Congress stand, has me feeling a bit clairvoyant:
As President Barack Obama on Tuesday evening called on Congress to take up criminal justice reform, a bipartisan group on Capitol Hill was putting the final touches on a sentencing overhaul deal to be announced as soon as next week. Their message to the president: You’re preaching to the choir. Story Continued Below
“We’ve actually been working on it for quite a while,” said Senate Majority Whip John Cornyn (R-Texas), one of the key negotiators of a package being hashed by members of the Senate Judiciary Committee. “You may see some legislation here in the next week or so. This is active. … [W]e’re close.”...
Right now, the prospects for such legislation seem good, given that lawmakers from both parties have been wrangling with a reform bill for months. Tuesday, for example, the House Oversight Committee became at least the third congressional panel to highlight problems in the justice system, inviting two governors, a handful of senators, House members and experts to discuss a path forward for reducing the number of inmates in federal prisons.
Hours later, the House officially formed the Congressional Criminal Justice and Public Safety Caucus, which will include justice reform supporters. And across the Capitol, Cornyn joined Sens. Mike Lee (R-Utah), Cory Booker (D-N.J.) and Sheldon Whitehouse (D-R.I) for a public dialogue that emphasized the importance of reform.
The biggest announcement is just around the corner: Senate Judiciary Chairman Chuck Grassley (R-Iowa) told POLITICO on Tuesday that his panel is close to announcing a deal on the bipartisan package his panel has been working on for months. Only about four outstanding issues remain, he said, predicting the package will be unveiled before August recess.
Monday, July 13, 2015
Prez Obama with big plans (finally!!) to prioritize criminal justice reform efforts
Way back in 2007, then-Prez-candidate Barack Obama on the campaign trail made much of the need for nationwide (and especially federal drug sentencing) criminal justice reform in a speech to Howard Univesity (which I discussed in this 2010 law review article). In that speech, candidate Obama promised that as President he would be "willing to brave the politics" to help engineer criminal justice reforms. As long-time readers know from my commentary here and elsewhere, I have long been disappointed that Prez Obama has left us waiting a long time for the reality of his policy work to match the rhetoric of his first political campaign.
But now, roughly eight years after making campaign proimises at Howard Univesity (and, tellingly, after the conclusion of every significant nation election in which Prez Obama is the most significant player), it appears that Prez Obama is finally poised to invest his political muscle and capital on crimnal justice reform. This effective Bloomberg Politics article, headlined "Obama to Push U.S. Sentencing Change Backed by Koch Brothers," explains how and provides effective context:
The White House is preparing to seize advantage of bipartisan concern over the burgeoning U.S. prison population and push for legislation that would reduce federal sentences for nonviolent crimes.
President Barack Obama will champion sweeping reform of the criminal justice system during a speech to the NAACP annual convention on Tuesday in Philadelphia, press secretary Josh Earnest said Friday. Obama will present ideas to make the system “safer, fairer and more effective,” Earnest said.
Later in the week, Obama will become the first sitting U.S. president to visit a federal prison when he goes to a medium-security facility in El Reno, Oklahoma. He’ll also sit for an interview with Vice News for an HBO documentary on the criminal justice system, Earnest said.
Obama came to office promising to reduce the number of Americans imprisoned for nonviolent drug offenses, and in 2010 he signed a law reducing disparities in sentences for possession of crack and powder cocaine. Some Republicans and police organizations criticized the moves as too lenient, but now a bipartisan coalition that includes Obama’s chief political antagonists, billionaires Charles and David Koch, have joined him to support relaxing federal sentencing guidelines.
Key lawmakers from both parties have been invited to the White House next week to discuss strategy. And Obama is expected to soon issue a spate of commutations for nonviolent drug offenders identified by a Justice Department program launched last year. Top officials from the department, including Deputy Attorney General Sally Yates, have recently met with members of Congress to express support for sentencing-reform legislation.
“Engagement with the president has been lacking for the past six years, but this is one topic where it has been refreshingly bipartisan,” Representative Jason Chaffetz, the Utah Republican who heads the House Oversight Committee, said in a telephone interview....
Chaffetz said he was optimistic that a package of bills would advance because of a diverse coalition of supporters lined up behind it. The president dubbed the legislation “a big sack of potatoes” in a meeting with lawmakers in February, Chaffetz said. The composition of the legislation isn’t final.
The Koch brothers, who are major Republican donors, support a bill introduced last month by Representatives Jim Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, that would encourage probation rather than imprisonment for relatively minor, nonviolent offenses and improve parole programs in order to reduce recidivism.
The Sensenbrenner-Scott bill is modeled on state efforts to reduce incarceration. While the federal prison population has grown 15 percent in the last decade, state prisons hold 4 percent fewer people, according to Sensenbrenner’s office. Thirty-two states have saved a cumulative $4.6 billion in the past five years from reduced crime and imprisonment, his office said in a report....
Representative Bob Goodlatte, the Republican chairman of the House Judiciary Committee, held a meeting in late June to listen to proposals from lawmakers in both parties. And Chaffetz, who described the Republican leadership in the House as “very optimistic and encouraging,” scheduled hearings on the issue by his committee for July 14 and 15. “I don’t normally do two days of hearings; we’re giving it that much attention,” Chaffetz said. “So it has more momentum than anybody realizes.”
There is a significant obstacle on the other side of the Capitol: Senator Chuck Grassley, the Iowa Republican who chairs his chamber’s Judiciary Committee.... But supporters of the House legislation have reason for optimism: Last month, Grassley announced he would work on a compromise in the Senate.
While Grassley has indicated a willingness to reduce penalties for some crimes, he wants to increase mandatory minimum sentences for other offenses, a Senate Republican aide said. The person requested anonymity to discuss internal deliberations. That could make sentencing changes an easier sell to tough-on-crime voters, but endanger the support of lawmakers who see mandatory minimums as bad policy. “There does appear hope for a bipartisan compromise,” Earnest said Monday. “We obviously welcome that opportunity.”
Senator Mike Lee, a Utah Republican who has long championed criminal justice reform, is leading negotiations with Grassley. He’s backed by Patrick Leahy of Vermont, the senior Democrat on Grassley’s committee, and Dick Durbin of Illinois, the second-ranking Democrat in the Senate.
The talks remain sensitive. During a Judiciary Committee hearing on Wednesday, Leahy -- admitting he already knew the answer -- asked Yates, who was testifying before the panel, to restate her support for sentencing reform. “I was born at night, but not last night,” Grassley interjected. “And I know that question was in reference to me, and I want everybody to know that we’re working hard on getting a sentencing-reform compromise that we can introduce. And if we don’t get one pretty soon, I’ll probably have my own ideas to put forward.”
July 13, 2015 in Clemency and Pardons, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)
Wednesday, July 01, 2015
Want does Johnson mean for the past, present and future of the career offender guidelines?
As first reported in this post, the the Supreme Court late last week in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws." In this initial post, I quickly explored Johnson's appliction to those previously sentenced under ACCA, and I will have more to say on that topic in the future. But in this post, I wanted to flag the possibility that Johnson could impact past, present and future sentencing pursuant to the career offender guideline of the US Sentencing Guidelines.
The possible impact of Johnson on guideline sentencing arises because the key phrase declared unconstitutionally vague in Johnson — the phrase which defines predicate offenses to include any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" — is also used in the definition of a career offender predicate under USSG 4B1.1 and 4B1.2. And, critically, many more federal defendants get sentenced pursuant to the career offender guidelines than pursuant to ACCA. Indeed, according to Sentencing Commission data, it appears as many as four times more defendants on average each year (roughly 2,200 as opposed to 550) are subject to the career offender guideline than are subject ot ACCA.
But, importantly, even though the career offender guideline uses the same phrasing as the ACCA statute as the basis of a big sentencing enhancement, this part of the guideline is not necessarily going to be deemed unconstitutionally vague in all cases because lower courts have suggested traditional vagueness doctrines simply do not apply to guidelines in the same way the apply to statutes. Morevoer, the arguments against applying vagueness doctrines to the application of the federal sentencing guidelines would seem to be even stronger in a post-Booker world in which the guidelines are only advisory.
Moreover, even if the Johnson ruling and vagueness doctrines apply to the federal sentencing guidelines, defendants sentenced in the past under the career offender guideline may be able to get (or even seek) any sentencing relief comparable to ACCA-sentenced defendants. As noted in prior posts, ACCA's application is such a big deal because it changes a 10-year statutory max sentencing term into a 15-year statutory minimum. In contrast, the career offender guideline only changes a calculated guideline range within an otherwise applicable statutory range. That difference certainly means that the best a career offender defendant can hope to get from Johnson is a chance at resentencing, not an automatically lower sentence.
Beyond the interesting and intricate question about Johnson's impact on past career offender sentences, I also think the present and future of this guideline's application remains uncertain. Given that vagueness doctrine might not apply to the guideline, perhaps district judges could (and even should) still keep applying as it did in the past the phrasing found problematic in Johnson. Or perhaps district judges ought to now just adopt the approach to the probelmtic clause that was advocated by Justice Alito in dissent in Johnson (discussed in this post). Or perhaps the US Sentencing Commission needs to use its emergency amendment authority ASAP to just delete or revise the phrase that Johnson addressed because, if it does not, it is near certain different courts nationwide will take different approaches to how to implement the guideline now in light of Johnson.
In sum: Johnson + career offender guideline = lots and lots of uncertainty and interpretive headaches.
Some prior posts on Johnson and its possible impact:
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- Some real-world (conservative?) reasons why only Justice Alito advocated "real-world conduct" approach to ACCA
- Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import
Wednesday, June 24, 2015
Notable new federal drug sentencing guideline reform data and discussion from US Sentencing Commission
I just received via e-mail a notable alert from the US Sentencing Commission concerningnotable new information and materials now available on the USSC's website. Here is the text of the alert I received (along with relevant links):
Today, the U.S. Sentencing Commission released its first report on retroactive application of the 2014 drug guidelines amendment, which reduced the drug quantity table in the federal sentencing guidelines by two levels. This report includes motions decided through the end of May 2015 for a reduced sentence under the new amendment. Read the report.
For background information on why the Commission amended the drug guidelines, read the first of our new Policy Profile series, “Sensible Sentencing Reform: The 2014 Reduction of Drug Sentences.”
The Commission is also seeking public comment on proposed priorities for the upcoming amendment cycle. Public comment is due on or before July 27, 2015. More information
There is data and discussion in each of thse three new USSC documents that merit careful study and perhaps future substantive comment. For now, though, I am eager just to praise the Commission for the creation of the reader-friendly and astute "new Policy Profile series." I have long thought it a good idea for the USSC to say a lot more about matters of policy, but to do so in smaller forms than the traditional lengthy 300+ page reports to Congress. Thus, I consider this new Policy Profile series to be both a great idea and one that could pay lots of dividends for all policy-makers, researchers and advocates who are concerned about federal sentencing law and policy,
June 24, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
"I know there needs to be [sentencing] reform,” Sen. Chuck Grassley says. “We need this.”
The title of this post is the (slightly modified) subheadline of this lengthy new Politico report, headlined "Riots spur Senate look at sentencing reform." Here are excerpts:
After the Baltimore and Ferguson riots ignited nationwide discussions of race and criminal justice, a bipartisan group of top Senators is making headway on a sentencing reform compromise to release well-behaved prisoners early and reduce some mandatory-minimums.
But the fledgling proposal — yet to be committed to paper — faces potential resistance from the wings of both parties: Liberals and libertarians who want it to go further, and tough-on-crime conservatives who fear that it lets convicts off the hook.
The group, led by Senate Judiciary Chairman Chuck Grassley (R-Iowa), is writing legislation to allow convicts with low risks of recidivism to earn time off their sentences. They’re also contemplating reductions to some nonviolent drug-related mandatory minimums — and maybe even increasing others on white-collar crime in the name of sentencing equality. Talks are ongoing.
The path forward is uncertain, however. Grassley must thread the needle between his colleagues like Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) — who say the war on drugs is dead and want to ditch mandatory minimums completely — and lawmakers like Sens. Marco Rubio (R-Fla.) and Jeff Sessions (R-Ala.), who are leery of ditching all such sentencing requirements and still back a tough-on-crime mindset that dominated the GOP in the 1980s and 1990s. It also marks a transition for Grassley, who’s never been a big advocate for reducing mandatory minimums and has been labelled an arch-nemesis of criminal justice reform by newspapers back home in Iowa.
“I have different views than Paul and those guys,” Grassley said in a short interview. “They’d make you believe [people are incarcerated] for smoking one pot or one ‘roach’ … But they’re not; they’re in for a lifetime of violent crime.” “But I know there needs to be reform,” he quickly added. “We need this.”
It’s a political gamble. On the one hand, the group risks being accused of writing a watered-down overhaul; on the other, lawmakers don’t want to be accused of letting convicts off too easily. Striking a balance between those two positions has been difficult in the past — and one of the reasons such legislation hasn’t been enacted in previous congresses.
“You’ve got to be very careful,” said Sessions, a former U.S. Attorney for the Southern District of Alabama who’s already skeptical of the burgeoning deal. He launched into a lecture: “Historic criminal justice reform in the early 1980s has led to this dramatic drop in the crime rate. I mean, the murder rate is less than half of what it was — and so [mandatory minimums were] a fundamental component… I don’t want us to go further than we should in reducing sentences.”
The new compromise package comes amidst heightened inter-racial tensions following the deaths of unarmed black men at the hands of police officers. And when a young white man murdered nine black churchgoers in Charleston, S.C., because of their skin color, the nation was again plunged into discussions of race relations. “My hope is that in light of what happened in South Carolina, we think beyond the symbolism of the [confederate] flag, to changes that really show we’re committed to fairness when it comes to racial equality,” said Democratic Minority Whip Dick Durbin (D-Ill.), who is part of the compromise group.
For supporters of sentencing reform, reform is needed in the name of equality. Many mandatory minimums disproportionately affect African Americans because they are used for sentencing drug-related crimes that plague predominately lower-income, urban populations. “We’re housing too many of our citizens who are committing nonviolent crimes,” said civil rights activist Rep. John Lewis (D-Ga.). “So many people, especially, low-income people who can’t hire lawyers — and it’s not fair.”...
Over the past few years, reform negotiations have been dominated by people like Paul and more libertarian-type Republicans, as well as Democrats such as Leahy. The pair have teamed up on legislation that effectively eliminates mandatory minimums by allowing judges to override them. But the idea of eliminating mandatory minimum makes people like Grassley and his co-Republican negotiator, Sen. John Cornyn, nervous.
“Having been a judge for 13 years and attorney general, my observation is we have to be careful,” Cornyn said during a Tuesday interview in his Senate office. “Even though people may be well intentioned, there could be very negative consequences.”
The package marries provisions of two bills that passed the Judiciary panel last Congress. The first, sponsored by Cornyn and Sen. Sheldon Whitehouse (D-R.I.), another member of the group, focuses on the back end of sentencing reform by letting inmates out early and giving them tools to assimilate back to normal life. The program would only be offered for prisoners considered to have a low risk of re-offending and who do not have prior convictions. Those who have committed more serious crimes such as rape, murder or terrorism wouldn’t be eligible.
“The people coming out of prison are better prepared to re-enter society and be productive as opposed to regressing back into their life of crime,” under the program, said Cornyn, who notes that states have found positive results by implementing these sorts of programs. In Texas, Cornyn’s home state, such reductions have allowed them to close three prisons, he says. The deal would also take a page out of a bipartisan bill called “Smarter Sentencing” that would reduce mandatory minimums for drug crimes.
The compromise would leave intact mandatory minimums on violent offences as well as convictions that involve the use of firearms (an important exception for Cornyn), importing heroin and cocaine (a requirement of Grassley’s), gang involvement and terrorism, among others. “It’s narrow category of drug sentencing… but it would have a dramatic impact on the population in our federal prisons,” Durbin said.
Critics like Leahy, however, are bound to have reservations because the bill likely won’t go far enough. “Passage of mandatory minimum sentencing laws has not made us safer, but it has driven our federal prison population to historic highs — a nearly 800 percent increase in 30 years,” the former Judiciary chairman said in late April, speaking to The Constitution Project. “I oppose all mandatory minimums.”
Leahy, one of the Democrats’ lead voices on this issue, also isn’t a fan of the Cornyn bill — ultimately abstaining from voting on the measure last year because he believes it will just exacerbate racial disparity with its “high risk,” “low” designations. Paul’s office would not weigh in on the package that’s still in the works.
Other lawmakers are taking the opposite tack. When asked about such a package, Sessions on Monday ranted about “safer streets … where children can be raised,” and likened the debate to a “pendulum that tends to swing.” Rubio has also written op-eds expressing reservations about getting rid of certain minimum sentence requirements. And Grassley, whose committee staff is taking the lead on the matter, is sympathetic to those worries. In fact, it’s ironic that Grassley — who was not invited to the White House when Obama hosted Republicans to discuss this issue — is taking the lead on the compromise. Back home, the Des Moines Register called him a “stumbling block remains stubbornly in place.”
But Grassley says he’s always favored reducing some minimum sentences. He also wants to increase others, however — placing him at odds with some Democrats he’s currently negotiating with. He’d like to increase mandatory minimums on white color crimes like fraud, he says.
While they applauded the idea of allowing prisoners to earn more time off their sentences, several Congressional Black Caucus members engaged in the criminal justice reform talks threw cold water on that particular pitch. “That’s not the way to do it,” said Rep. Hank Johnson (D-Ga.). “I would oppose that for the same reason I’m opposed to mandatory minimums on other crimes: They take discretion away from the judge and put too much discretion in the hands of the prosecution.” Rep. Keith Ellison (D-Minn.) said the idea would “clearly” addresses the question of equal treatment for black and white offenders, but he has “an objection to mandatory minimums beyond the equity question.”...
Other pieces of the package still up in the air include provisions limiting asset seizures, or funding police body cameras — but Grassley worries bringing those into the negotiations at this point may hinder talks.
Cornyn suggested the group would be open to changes in committee and on the floor — so long as they don’t take the bill too far off course from the direction it’s headed, he added. And despite potential pitfalls to come, Whitehouse seemed confident they could deliver: “There’s a sweet spot for people who support reconsideration of mandatory minimums… there is a sweet spot in the middle.”
June 24, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)
Monday, June 22, 2015
Robina Institute now has great new "Sentencing Guidelines Resource Center"
Via e-mail, I just learned about a great new resource, The Sentencing Guidelines Resource Center, that has been created on-line by the Robina Institute of Criminal Law and Criminal Justice. Here is the text of the e-mail description of this resource center (which I already have added to my Resources sidebar):
The Robina Institute is pleased to present The Sentencing Guidelines Resource Center. The Sentencing Guidelines Resource Center is a new website that serves as a central source of information related to American sentencing guidelines systems. The Sentencing Guidelines Resource Center includes:
By bringing together, in one place, materials that span all of the current sentencing guidelines systems in the U.S., the Robina Institute’s Sentencing Guidelines Resource Center is able to facilitate the exchange and sharing of information, expertise, and experience; educate on issues related to sentencing policy, guidelines, and commissions; promote multi- jurisdictional comparative research and policy analysis; and promote the adoption and retention of best practices in sentencing guidelines systems.
- Detailed profiles of 6 sentencing guidelines jurisdictions: Alabama; Kansas; Minnesota; Oregon; Pennsylvania; and Utah. More jurisdictions will be added over the next several months.
- Current versions of the guidelines in each jurisdiction.
- A searchable repository of materials produced by sentencing guidelines commissions (training manuals, worksheets, reports, meeting summaries).
- Summaries of important interpretive case law.
- A comparison tool so visitors can examine sentencing guidelines systems, side by side.
- In-depth articles covering topics about guidelines and sentencing commissions.
Sunday, June 21, 2015
Great new USSC report (with some not-so-great data) on "Alternative Sentencing in the Federal Criminal Justice System"
The US Sentencing Commission released last week this notable new report on titled "Alternative Sentencing in the Federal Criminal Justice System." (Notably, the report itself shows a cover date of May 2015, but I am pretty sure it was just posted last week on the USSC's website.) Here is how the USSC itself briefly describes its new (data-heavy) document:
As a supplement to the Commission's 2009 publication, this report examines more recent trends in the rates of alternative sentences and examines how sentencing courts use their discretion to impose alternative sentences.
This 30+ page report has lots of data about when and how federal judges impose alernative sentences in the post-Booker era. The data could (and perhaps should) be assessed in a variety of different ways, but I found at least some of these data realities somewhat discouraging. In particular, these passages from this USSC Alternative Sentencing report caught my eye, and they reflect data that I found at times a bit surprising and at times more than a bit depressing:
Although most federal offenders were not convicted of an offense carrying a mandatory minimum penalty, alternative sentences are imposed for only small proportion of federal offenders not convicted of such an offense. ...
During the past ten years, the proportion of United States citizen federal offenders eligible for alternative sentences (i.e., those offenders with sentencing ranges in Zones A, B, or C and who were not statutorily ineligible) decreased slightly from 27.6 percent in 2005 to 24.6 percent in 2014....
In contrast to the moderate decrease in the proportion of offenders eligible for alternative sentences (with sentencing ranges in Zones A through C), there was a larger decrease in the proportion of those offenders actually sentenced to an alternative. The proportion of eligible offenders sentenced to an alternative decreased from 71.9 percent to 65.0 percent during that time period....
Though relatively modest, there has been a clear trend of a decreased rate of alternative sentences during the past ten years.... Rates of alternative sentences decreased regardless of whether offenders were sentenced within or below the guideline range.... Despite the increased discretion that courts have used to vary from the guidelines after Gall, the data seem to demonstrate that courts are not using that discretion to impose alternative sentences at a greater rate.
Black and Hispanic offenders consistently were sentenced to alternatives less often than White offenders. The data indicate some differences in criminal history and offense severity that provide some insight to this finding. Black offenders had more serious criminal history scores compared to the other groups....
[F]emale offenders were sentenced to alternatives at higher rates than male offenders. This difference is especially apparent for offenders with sentencing ranges in Zone B, in which 75.4 percent of female offenders were sentenced to alternatives compared to 55.9 percent of male offenders.
In general, alternative sentences were imposed for more than half of offenders in each age group. Excluding offenders under the age of 21, there was a clear trend of increasing rates of alternatives as the age of the offender increased, and this trend was consistent across the sentencing zones.
June 21, 2015 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)
Wednesday, June 17, 2015
Constitution Project gets 130 former judges, prosecutors and law enforcement officials on letter advocating for SSA
As reported here by The Constitution Project, "former judges and prosecutors from across the country are urging Congress to adopt the Smarter Sentencing Act." Specifcally, The Constitution Project organized "130 former judges, prosecutors and law enforcement officials" to sign this notable letter "delivered to members of the House and Senate Judiciary Committees on June 16."
As The Constitutional Project notes, included among "those signing the letter are Judge William S. Sessions, former director of the FBI; former state attorneys general from Illinois, Pennsylvania, Tennessee and Virginia; and former state Supreme Court justices from Florida, Georgia, Mississippi, Montana and Texas." And here is how the letter gets started:
As former judges, prosecutors and law enforcement officials, we write to express our support for critical reforms to federal sentencing contained in the Smarter Sentencing Act of 2015 (SSA), S.502/H.R.920. This bill is an important step in promoting public safety and addressing unintended and expensive consequences of existing federal sentencing laws.
Nationwide, law enforcement has made significant progress in curbing violent crime in our communities. At the federal level, we trust Congress to address the parts of our sentencing policies that are simply not working. Presently, mandatory minimum drug sentences unnecessarily apply to a broad sweep of lower level offenders. These include low-level, nonviolent people whose involvement in the offense is driven by addiction, mental illness, or both. Drug offenders are the largest group of federal offenders sentenced each year, now comprising nearly half of the federal prison population. Moreover, individuals most likely to receive a mandatory minimum sentence were street-level dealers, not serious and major drug dealers, kingpins, and importers. Indeed, of the 22,000 federal drug offenders last year, only seven percent had a leadership role in the crime and 84 percent did not possess or use guns or weapons. The U.S. Sentencing Commission and other experts have found little deterrent value in sentencing low-level offenders to lengthy mandatory minimum prison terms.
Additionally, over the past three decades, our spending on federal incarceration has increased by over 1100 percent. Despite this massive investment by taxpayers, federal prisons are now at 128 percent of their capacity, undermining staff and inmate safety and prisoner rehabilitation, as well as reducing the resources available for law enforcement and crime prevention. Incarceration and detention costs have nearly doubled over the last ten years, with the Bureau of Prisons’ (BOP) budget at its current level of $7.2 billion in the President’s Fiscal Year 2016 budget request. As a nation, we are expending enormous amounts of money, but failing to keep pace with our growing prison population.
Maintaining the status quo in federal sentencing policy is both fiscally imprudent and a threat to public safety. We are deeply concerned that spending on incarceration has jeopardized funding for some of our most important law enforcement priorities. The BOP budget now accounts for approximately a quarter of the U.S. Department of Justice’s (DOJ) discretionary budget, potentially undermining other DOJ law enforcement priorities. Indeed, in 2014, the BOP’s budget grew at almost twice the rate of the rest of the Department of Justice. With more resources going to incarcerate nonviolent offenders, funding for federal investigators and prosecutors is threatened. U.S. Attorneys’ Offices and the Drug Enforcement Administration have already lost hundreds of positions and resources for state and local law enforcement have significantly decreased. Law enforcement will continue to maximize its resources to keep our communities safe, but Congress created our sentencing scheme and needs to act to help solve these problems
Monday, June 08, 2015
Can any significant federal prison sentence truly be "reasonable" for any of the Kettle Falls Five marijuana defendants?
The question in the title of this post is a serious question I have in light of the remarkable federal marijuana prosecution that reaches sentencing in Washington state later this week. The case involves the so-called "Kettle Falls Five," a group of medical marijuana patients subject (somewhat mysteriously) to aggressive federal criminal prosecution. Regular readers may recall prior posts about the case; this new lengthy Jacob Sullum Forbes piece, headlined "In A State Where Marijuana Is Legal, Three Patients Await Sentencing For Growing Their Own Medicine," provides this review and update:
During their trial at the federal courthouse in Spokane last March, Rhonda Firestack-Harvey and her two fellow defendants—her son, Rolland Gregg, and his wife, Michelle Gregg—were not allowed to explain why they were openly growing marijuana on a plot in rural northeastern Washington marked by a big green cross that was visible from the air. According to a pretrial ruling, it was irrelevant that they were using marijuana for medical purposes, as permitted by state law, since federal law recognizes no legitimate use for the plant. But now that Firestack-Harvey and the Greggs have been convicted, they are free to talk about their motivation, and it might even make a difference when they are sentenced next Thursday.
Federal drug agents raided the marijuana garden, which was located outside Firestack-Harvey’s home near Kettle Falls, in 2012. In addition to the three defendants who are scheduled to be sentenced next week, the U.S. Attorney’s Office for the Eastern District of Washington charged Firestack-Harvey’s husband, Larry Harvey, and a family friend, Jason Zucker. Dubbed the Kettle Falls Five, all had doctor’s letters recommending marijuana for treatment of various conditions, including gout, anorexia, rheumatoid arthritis, degenerative disc disease, and chronic pain from a broken back. Last February prosecutors dropped the charges against Harvey because he has terminal cancer. Zucker, who had a prior marijuana conviction, pleaded guilty just before the trial and agreed to testify against the other defendants in exchange for a 16-month sentence, which was much shorter than the 15-year term he could have received in light of his criminal history....
In the end, after hearing testimony for five days and deliberating for one, the jurors acquitted the defendants of almost all the charges against them, which could have sent them to prison for 10 years or more. “They all saw what was going on,” Telfeyan says. “They understood what the facts were, and they came back with a verdict exactly consistent with what actually happened, which was just a family growing medical marijuana for their own personal use.”
The jury rejected allegations that the defendants distributed marijuana and conspired to do so, that they grew more than 100 plants (the cutoff for a five-year mandatory minimum) over the course of two years, that they used firearms (the Harveys’ hunting guns) in connection with a drug crime (another five-year mandatory minimum), and that Firestack-Harvey maintained a place (i.e., the home she shared with her husband) for the purpose of manufacturing and distributing marijuana. The one remaining charge — cultivation of more than 50 but fewer than 100 plants — does not carry a mandatory minimum penalty, which gives Rice broad discretion when he sentences Firestack-Harvey and the Greggs next Thursday. He can even consider the reason they were growing marijuana.
“But for state-sanctioned medical prescriptions authorizing each member of the family to grow 15 marijuana plants, this family would not be before the Court today,” the defense says in a sentencing memo filed last week [available here]. “Due to the exemplary contributions each family member has made to this society, their lack of criminal records, and the unique role state-sanctioned medical authorizations played in this case, Defendants respectfully seek a probationary sentence with no incarceration.”
The federal probation office recommended sentences of 15 to 21 months, while the prosecution is seeking 41 to 51 months [gov sentencing memo here], based mainly on allegations that were rejected by the jury, including cultivation in 2011 as well as 2012. To give you a sense of how realistic the government’s assumptions are, it estimates that each plant grown in 2011 produced more than a kilogram of marijuana. As the defense notes, that figure “flies in the face of both empirical reality and legal precedent,” since “numerous courts have recognized that a marijuana plant cannot yield anywhere near 1 kilogram of usable marijuana.” At one point in its sentencing memo, the prosecution even claims the defendants somehow managed to produce “1000 kilograms per plant.” I assume that’s a typo, but who knows? The government also thinks the 2012 harvest should be measured by the weight of the plants, including leaves, stems, water, and clinging dirt.
The prosecution’s insistence that Firestack-Harvey and the Greggs deserve to spend at least three and a half years in prison is puzzling, as is its willingness to posit super-productive, science fictional marijuana plants in service of that goal. But this case has been a puzzle from the beginning.
I assume that this federal prosecution started because federal authorities thought the defendants here were doing a whole lot more than what the feds were able to prove in court. For that reason, I can sort of understand why the feds started this prosecution way back in early 2012. But now, three years later, with the defendants acquitted on most charges (and now with lots of persons selling lots of recreational marijuana within the state), I have a very hard time understanding just how the feds can think a lengthy prison sentence is "not greater than necessary" for these defendants in light of the nature and circumstances of the offense and the history and characteristics of these defendants.
I have in the excerpt above links to the parties' sentencing briefs, and I sincerely seek input on the question in the title of this post in light of some of the arguments made thereing. Notably, the government's sentencing memo is only focused on dickering over the applicable guideline range; it does not appear to make any formal arguments for a signficant prison sentence in light of all the 3553(a) sentencing factos that judges now must consider after Booker. So I suppose it is still possible that even the government will, come the actual sentencing later this week, acknowledge that this remarkable case does not justify any significant federal prison sentence for any of the defendants with no criminal history. But if the government seeks a prison term, and if the judge imposes a prison term, I would be ready and eager to argue on appeal for these defendants that such a punishment cannot possibly be reasonable in light of all the sentencing commands Congress put into 3553(a).
Prior related posts:
- Family of medical marijuana patients in Washington turn down plea and set up notable federal trial
- New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution
- Three of "Kettle Falls Five" convicted on least serious federal marijuana charges in Washington
June 8, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)
Wednesday, June 03, 2015
New Deputy AG suggesting every too-long federal prison sentence hurts public safety
This recent NPR piece, which provide a mini-profile on the new Deputy Attorney General, Sally Yates, has a headline and some quotes that might be effectively utilized by defense attorneys to argue that any unduly long federal prison sentence damages national public safety. The piece is headlined "No. 2 At Justice Warns Growing Prison Budget Detracts From Public Safety," and here are excerpts:
Prosecutors usually spend their energy putting criminals behind bars — not urging their release. But racial disparities in the system and the huge costs of locking up so many people are pushing some government officials to call for a new approach. One of them is the woman who now runs day-to-day operations at the Justice Department. Sally Yates says she's hardly soft on crime: "I'm a career prosecutor."...
"I've been at this for 27 years now," Yates says. "I believe that it's really imperative that we do everything we can to keep our communities as safe as possible but to do that in a way that is just and fair."
The Senate confirmed Yates last month as deputy attorney general. She's using her new platform as the second in command at the Justice Department to warn the expanding prison budget has begun to threaten public safety.
The federal government spends $7 billion a year to incarcerate about 200,000 inmates. That's money she says that could pay for more FBI agents and local police. "We know that it's the cop on the street that's one of the most important things to be able to keep our communities safe. But yet over the past decade, there's been a 40 percent reduction in the grant money that's available for cops on the street," Yates says.
New Justice Department estimates obtained by NPR suggest the situation will only get worse over the next decade. If nothing changes, the projections say authorities will need to take tens of millions of dollars that could have been devoted to community policing and local law enforcement, and instead, pour that money into federal prisons. "It is simply not sustainable for us to continue at the present rates that we are now of our incarceration levels," she says.
Yates is taking that message to Capitol Hill. She wants members of Congress to dial back long mandatory prison sentences for nonviolent drug criminals. Red States like Texas and Georgia launched efforts to overhaul their justice systems years ago. Now a left-right coalition of groups from the ACLU to Koch Industries is advocating for a smarter approach at the federal level too....
The Obama administration says it has reduced both the violent crime rate and the number of people going to prison. Former Attorney General Eric Holder, one of Yates's main supporters, crowed about the data in a speech last year: "This is the first time, the first time that these two critical markers have declined together in more than 40 years."
Sunday, May 24, 2015
"Before sentencing, Ulbricht begs for leniency: 'please leave me my old age'"
This new ars technica posting provides the title of this post and it provides background and links to a high-energy effort by a high-profile defendant to get a lower sentence for his high-tech drug dealing crimes for which he will be sentenced in the coming week. Here are excerpts:
Convicted Silk Road founder Ross Ulbricht and no less than 97 of his friends and family members have written to a judge just days prior to sentencing, asking her to impose the most lenient sentence possible. (Ars has posted the letters online along with the court filing of photos of Ulbricht and many family and friends.)
Under federal mandatory minimum sentencing guidelines, Ulbricht faces at least 20 years in prison and possibly as long as life behind bars. “Silk Road turned out to be a very naive and costly idea that I deeply regret,” he wrote in his own 1.5 page letter to United States District Judge Katherine Forrest filed on Friday.
Ulbricht’s own letter marks the first time he has shown any public remorse during the entire saga, during which he did not testify. His attorney, Joshua Dratel, spun unsubstantiated theories that while Ulbricht created Silk Road, unnamed mysterious others took over the site and should be the ones prosecuted for the crime. Dratel previously vowed to appeal the verdict.
In February 2015, Ulbricht was convicted of seven charges including three drug counts: distributing or aiding and abetting the distribution of narcotics, distributing narcotics or aiding and abetting distribution over the Internet, and conspiracy to violate narcotics laws. He was also convicted on a fourth count of conspiracy to run a "continuing criminal enterprise," which involves supervising at least five other people in an organization. In addition, Ulbricht was convicted on conspiracy charges for computer hacking, distributing false identification, and money laundering.
Prior related posts:
- You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?
- Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht
- Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht
Friday, May 22, 2015
"Federal Sentencing Error as Loss of Chance"
The title of this post is the title of this notable new piece available via SSRN authored by Kate Huddleston. Here is the abstract:
Federal courts have taken the wrong approach to discussing sentencing error. Circuit court opinions in career offender cases have framed the debate over collateral review of federal sentencing error as a conflict between finality and fairness. This Comment contends that disagreement over the cognizability of such claims is actually a dispute about the nature of the harm in sentencing error. What federal courts are actually asking, in effect, is whether the lost probability of a lower sentence is itself a cognizable injury.
The Comment draws on an analogy to tort law to argue that sentencing debates are, at their core, about loss of chance. Part I highlights the role that probability plays in recent sentencing opinions. It argues that, as an empirical matter, loss of chance is an accurate way to describe sentencing error given the anchoring effect of the Federal Sentencing Guidelines on sentencing practices. Part II makes the structural case for conceptualizing Guidelines sentencing error as a problem of probability, arguing that failure to recognize the probability dispute has obscured an underlying debate about the continued vitality of the Guidelines system. After United States v. Booker, the Sentencing Guidelines are advisory in principle and influential in practice. Part II argues that treating Guidelines error as loss of chance — and a loss that may constitute a fundamental miscarriage of justice — is necessary in order to enforce a Guidelines regime that is neither too rigid nor wholly indeterminate.
Tuesday, May 19, 2015
Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht
As reported in this Wired piece, headlined "Ahead of Sentencing, Ulbricht Defense Argues Silk Road Made Drug Use Safer," the defense in a notable drug sentencing case is making a notable new claim about the nature and consequences of the defendant's drug dealing methods. Here are the details:
When a jury convicted Ross Ulbricht three months ago of running the Silk Road, it closed the legal question of whether he was guilty of masterminding that billion-dollar online black market for drugs. But as Ulbricht’s sentencing approaches, his defense is opening another ethical question that may be far more societally important: Did the Silk Road’s newly invented method of narcotics e-commerce actually reduce the risks of drug use?
In a memo to judge Katherine Forrest filed Friday afternoon, Ulbricht’s defense has asked her to consider the Silk Road’s potential for “harm reduction” when she determines Ulbricht’s sentence in less than two weeks. The memo argues that the Silk Road’s community provided drug users a more reliable way to buy untainted drugs, that Ulbricht had expressly tried to encourage “safer” drug use on his black market site, and that the digital nature of the site’s commerce may have protected users from physical interactions that in the traditional drug trade often lead to violence.
“In contrast to the government’s portrayal of the Silk Road web site as a more dangerous version of a traditional drug marketplace, in fact the Silk Road web site was in many respects the most responsible such marketplace in history, and consciously and deliberately included recognized harm reduction measures, including access to physician counseling,” writes Ulbricht’s lead defense attorney Joshua Dratel in the filing. “In addition, transactions on the Silk Road web site were significantly safer than traditional illegal drug purchases, and included quality control and accountability features that made purchasers substantially safer than they were when purchasing drugs in a conventional manner.”
The memo argues that the Silk Road’s community provided drug users a more reliable way to buy untainted drugs. One of the Silk Road’s innovations, after all, was to bring an eBay-like system of ratings and reviews for online drug sales. That system gave buyers a way to quickly weed out dealers selling lower quality or less pure substances. The site maintained a section of its user forum devoted to safer drug use, where users could ask each other for advice and help with health problems. And Ulbricht’s defense points to archived messages showing that Ulbricht even offered at one point to pay $500 a week to a Spanish doctor, Fernando Caudevilla, who frequented the forum and answered users’ questions. Ulbricht also asked Caudevilla if he’d be willing to chemically test drugs on the site for quality, though it’s not clear if that testing scheme was ever put into practice.
Regardless, Ulbricht isn’t likely to receive a light sentence. The 31-year-old Texan was convicted of seven felony charges in February that include conspiracies to traffic in narcotics and money laundering, as well as a “kingpin” statute reserved for the leaders of organized criminal operations, which could add another decade to his prison time. In all, he faces a minimum of 30 years in prison and a maximum of life. Ulbricht’s defense team has already said it plans to appeal the case.
The prosecution in Ulbricht’s case has revealed that it plans to present at Ulbricht’s sentencing hearing six cases of individuals who died from overdoses of drugs bought on the Silk Road. But in its Friday filing, the defense addressed and rebutted each of those examples. In a grisly section of a separate memo, it goes through the details of those six deaths, in each case arguing that the deceased suffered from earlier health conditions and questioning whether the death-inducing drugs had actually been bought from vendors on the Silk Road. “It is simply impossible for the government to prove that drugs obtained from Silk Road ‘caused’ death, and in certain cases, the government cannot even establish to any degree of certainty that any of the drugs ingested came from Silk Road,” Dratel writes....
To bolster its argument about the societal benefits of the Silk Road, the defense includes in its filing sworn statements from a series of experts, including Tim Bingham, the administrator of an addiction-focused non-profit known as the Irish Needle Exchange Forum, and Meghan Ralston, the former director of harm reduction for the Drug Policy Alliance. Bingham, for instance, published three studies in the International Journal of Drug Policy about the Silk Road based on surveys of users. He writes in his statement that he “concluded that Silk Road forums…appeared to act as an information mechanism for the promotion of safer and more acceptable or responsible forms of recreational drug use.”
The full text of this Ulbricht Sentencing Defense Letter can be accessed at this link.
Prior related posts:
- You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?
- Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht
Monday, May 18, 2015
DC Circuit on child porn and sentencing manipulation and nonfrivolous arguments (aka departures and variances and Booker, oh my!)
I sometime consider Washington DC to be a land like Oz where weird, and sometimes magical, sometimes scary, sometimes bizarre, events can transpire. Thus, when reading the DC Circuit's recent opinion in US v. Bigley, No. 12-3022 (DC Cir. May 15, 2015) (available here), I kept hearing Dorothy's voice as the opinion twisted and turned through a variety of notable sentencing issues in the dark Booker forest. Here is how the per curiam opinion gets started:
Before United States v. Booker, 543 U.S. 220 (2005), rendered the U.S. Sentencing Guidelines advisory, we forbade district courts from relying on sentencing manipulation as a basis for mitigation. See United States v. Walls, 70 F.3d 1323, 1329–30 (D.C. Cir. 1995). But Booker and its offspring fundamentally changed the sentencing calculus, requiring courts to now consider any mitigation argument related to the sentencing factors contained in 18 U.S.C. § 3553(a) when imposing a sentence within the statutory range of punishment. See Pepper v. United States, 131 S. Ct. 1229, 1241–48 (2011); Kimbrough v. United States, 552 U.S. 85, 101–02 (2007); Rita v. United States, 551 U.S. 338, 357 (2007). A sentencing court, post-Booker, must consider nonfrivolous arguments for mitigation, even if those arguments were previously prohibited under the mandatory guidelines regime. Because the district court failed to consider a nonfrivolous claim of sentencing manipulation when it pronounced its sentence, we vacate the sentence and remand.
Notably, the full opinion for the DC Circuit panel here does not quite say that a district court always has an obligation to address expressly a nonfrivolous argument raised by the defendant. Judge Rogers concurs separately to advocate such a holding by the circuit:
“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008). I am not indifferent to concerns about saddling busy district courts with more procedural loads and I appreciate this court’s reluctance. But the burden of providing a brief explanation is small and the advantages great. “Most obviously, [an explanation] requirement helps to ensure that district courts actually consider the statutory factors and reach reasoned decisions.” Id. at 193; see also In re Sealed Case, 527 F.3d 188, 192 (D.C. Cir. 2008) (“The requirements that a sentencing judge provide a specific reason for a departure and that he commit that reason to writing work together to ensure a sentence is well-considered.”). It also promotes the “perception of fair sentencing,” Gall, 552 U.S. at 50, and “helps the sentencing process evolve by informing the ongoing work of the Sentencing Commission,” Cavera, 550 F.3d at 193. When a sentencing court responds to a defendant’s arguments, it “communicates a message of respect for defendants, strengthening what social psychologists call ‘procedural justice effects,’ thereby advancing fundamental purposes of the Sentencing Reform Act.” See Michael M. O’Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 472 (2009). The requirement also assures an adequate record with which we can conduct “meaningful appellate review.” Gall, 552 U.S. at 50. I would join the majority of circuits in holding district courts should address a defendant’s nonfrivolous argument for a variance from the Guideline range.
Though the formal ruling and the discussion of sentencing procedural are surely the most consequential aspects of this Bigbey ruling, I cannot overlook or fail to comment on the case facts and on how the remarkable severity of the federal child porn guidelines shaped the entire sentencing dynamic of this case. Here is the sad and remarkable (guideline) tale: The defendant in this case was charged and pled guilty to "one count of interstate travel with intent to engage in illicit sexual conduct with a minor" after he drove to DC to hook up with a (fictional) 12-year-old daughter of a friend of an (undercover) agent chatting on-line. At the suggestion of the agent, the defendant bought a digital camera with him on his trip to DC for taking pictures of the girl, which had this impact in the calculation of the guideline range:
When the probation office calculated his advisory sentencing guideline range, it employed the Section 2G1.3(c)(1) cross-reference guideline provision, which requires the application of Section 2G2.1 when an offense involves “causing, transporting, permitting, or offering . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G. § 2G1.3(c)(1). By applying Section 2G2.1, Bigley’s base offense level increased from 24 to 32, which, when the other guideline calculations were made, boosted his sentence guideline range from 46 to 57 months to 135 to 168 months of imprisonment.
In other words, because (and only because) the defendant was talked into bringing a digital camera on his illegal child booty-call trip, his recommended guideline sentence shot up from 4-5 years to 12-14 years. I have heard of some severe gun-possession sentencing enhancements, but I have never seen such a severe camera-possession sentencing enhancement. Perhaps the NRA (the Nikon Rights Association) should consider filing an amicus brief at the resentencing.
May 18, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack
Thursday, April 30, 2015
Ninth Circuit finds procedural error in teen's 30-month federal sentence for laser beam prank
A Ninth Circuit panel today handed down a notable sentencing opinion in US v Gardenhire, No. 13-50125 (9th Cir. April 30, 2015) (available here). This unofficial summary of the ruling provided by court staff highlights why federal sentencing fans will want to check out the full ruling:
The panel vacated a sentence imposed for knowingly aiming the beam of a laser pointer at an aircraft in violation of 18 U.S.C. § 39A, and remanded for resentencing, in a case in which the district court applied an enhancement for reckless endangerment under U.S.S.G. § 2A5.2(a)(2)(A).
The panel held that the district court erred in concluding that the defendant acted recklessly when he aimed his laser beam at the aircraft, where the record is devoid of evidence, let alone clear and convincing evidence, that the defendant was aware of the risk created by his conduct.
The panel could not say that the error was harmless, and instructed that the matter be assigned to a different district judge on remand. The panel observed that the district court’s statements show its commitment to the idea that, regardless of the evidence presented, the defendant’s conduct was reckless, and that it would likely impose the same sentence on remand, regardless of this court’s rulings.
In light of the extremely steep sentencing regime dictated by the recklessness enhancement for wide-ranging conduct covered by § 2A5.2, the panel wrote that it is particularly important that the government is held to its burden of proof and that the enhancements are supported by clear and convincing evidence.
Tuesday, April 28, 2015
Senator Grassley yet again says he is open to some federal sentencing reforms
As reported in this new Washington Times article, "Senate Judiciary Committee Chairman Chuck Grassley on Monday said he supported looking into sentencing reform." Here is more of this (not-quite-new) news:
Mr. Grassley, Iowa Republican, has long opposed reducing mandatory minimums, and was seen as a barrier to advancing any sort of sentencing reform legislation while at the committee’s helm. “Over the last several months, I’ve been accused of being a roadblock to sentencing reform. Let me be clear. I have told my colleagues and the White House that I’d like to sit down and talk about how we can move forward,” Mr. Grassley said in prepared remarks Monday, where he laid out his committee’s priorities for the session. “I’m ready to address some of these issues.”
He reiterated that he wasn’t willing to do “an across-the-board cut in mandatory minimums,” but did agree that some should be cut, and perhaps some should be raised, such as for those who commit white-collar crimes. Mr. Grassley also spoke about the need for his committee to look into indigent defendants who are not provided with legal counsel, as the Constitution requires, when they are arrested on misdemeanors and may face jail time....
Mr. Grassley’s stance aligns him with more liberal and libertarian groups, who have long advocated civil justice reforms. In February, Koch Industries, which is led by the billionaire conservative kingmaker Charles Koch, formed a coalition with the Center for American Progress — a bitter adversary on economic and tax issues — to champion proposals to reduce prison populations, reform sentencing guidelines and reduce people’s lapses back into criminal behavior....
The effort has been building traction in Congress with libertarian-leaning republicans such as Utah’s Mike Lee, and Kentucky’s Rand Paul, joining with liberals including Sens. Dick Durbin and Patrick Leahy. Those efforts were expected to face an uphill climb with Mr. Grassley, who took to the Senate floor this year to say the system wasn’t sending a huge uptick of nonviolent drug offenders to prison under lengthy mandatory minimums, and criticized the Senate proposal to change sentencing laws as possibly reducing sentences for terrorists who used drug trafficking to finance terrorism....
Earlier this month, faith leaders in Iowa encouraged Mr. Grassley to embrace the various bipartisan bills in front of him and encouraged reintegration of people returning from prisons and jails. A group of more than 100 pastors, reverends, bishops and other faith leaders suggested in an April 20 letter that Mr. Grassley limit disproportionate sentences “particularly for drug offenses.” “We believe justice can be better served and proportionality restored by lowering penalties,” the letter states. The unnecessarily lengthy incarceration of people with drug offenses has burdened the federal criminal justice system and produced increasing costs that are unsustainable.”
On Monday, Mr. Grassley seemed willing to negotiate — or at least sit down and listen to their concerns. “I told a lot of people that are for sentencing reform that I want to sit down and talk to them,” said Mr. Grassley. “There is some talk going on, I don’t know how far its progressed at this point, at the staff level. But yes, I’m willing to do some legislation in that area.”
Mr. Grassley also said he supported having video cameras in the Supreme Court and wanted to examine the fairness of asset forfeiture by the police and federal law enforcement. In addition, Mr. Grassley plans to introduce a Juvenile Justice and Delinquency Prevention Act reauthorization bill this week. The bill, he said, has the support of Sen. Sheldon Whitehouse, the ranking member of the Senate Judiciary subcommittee on crime and terrorism.
The full speech by Senator Grassley delivered yesterday at the National Press Club Newsmakers News Conference is available at this link. As highlighted in prior posts linked below, these comments from Senator Grassley do not reflect any major change of position, but it does reinforce my belief that any and all persons seriously committed to serious federal sentencing reforms need to figure out just what kinds of reforms Senator Grassley is prepared to support or allow to get to a vote in his critical committee.
- Senator Grassley again expresses interest in talking about federal criminal justice reform
- In praise of Senator Charles Grassley's advocacy for criminal justice transparency and accountability (and his one blind spot)
- Sparring over sentencing reform lingo involving the media and Senator Grassley
- NY Times editorial laments "The Roadblock to Sentencing Reform" ... while creating another
- Senators respond to NY Times criticisms of their sentencing work
- Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?
- A positive perspective on possible prison reform emerging from Congress
- Is major federal sentencing reform possible now that Republicans have full control of Congress?
- Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform
Friday, April 24, 2015
Attorneys for another convicted CIA leaker urges judges to follow Petraeus sentencing lead
This notable new Washington Post article, headlined "Attorneys ask judge to consider Petraeus in sentencing ex-CIA officer Sterling," the seemingly lenient treatment given yesterday to former CIA director David Petraeus for leaking information to his journalist/mistress (basics here) is already having an echo effect in other federal criminal cases. Here are the interesting details:
Defense attorneys for the former CIA officer convicted of giving classified information to a New York Times reporter urged a federal judge on Friday to sentence their client in line with the terms faced by other so-called leakers — noting that not 24 hours ago, a retired general and ex-CIA director was given mere probation in a similar case.
Defense attorneys for Jeffrey Sterling did not endorse a specific penalty, but they urged U.S. District Judge Leonie M. Brinkema to consider the impact of the case and be fair. The defense attorneys argued that in three other recent leak cases, those convicted received — at the most — 30 months in prison. On Thursday retired general and former CIA chief David Petraeus was sentenced to two years of probation and a $100,000 fine. “In meting out justice,” defense attorneys wrote, “the Court cannot turn a blind eye to the positions the Government has taken in similar cases.”
Sterling, 47, was convicted in January of nine criminal counts after jurors determined unanimously that he gave classified information to New York Times reporter James Risen about a sensitive operation to put faulty nuclear plans in the hands of Iranian officials. Federal prosecutors earlier this week urged a judge to impose a “severe” sentence and said they felt the U.S. probation office had correctly calculated the range in the federal sentencing guidelines as 19 years 7 months on the low end and 24 years 5 months on the high end.
Such a sentence would have few parallels: The closest might be the 35-year prison term imposed by a military judge on Chelsea Manning, who leaked the largest volume of classified documents in U.S. history. And Sterling’s defense attorneys argued that a prison term within the guidelines would be “plainly excessive,” essentially penalizing Sterling for not taking a plea deal. “Mr. Sterling was convicted, under the Espionage Act, for ‘leaking’ information to a reporter,” defense attorneys wrote. “He should be treated similarly to others convicted for the same crimes and not singled out for a long prison sentence because he elected to exercise his right to a trial.”
Defense attorneys pointed to two similar cases in which alleged leakers reached plea agreements and avoided decades behind bars. Former CIA officer John Kiriakou, who revealed the name of another covert officer, was ultimately sentenced to 30 months in prison, and former State Department arms expert Stephen Jin-Woo Kim, who leaked classified information to a Fox News reporter, was ultimately sentenced to 13 months in prison, defense attorneys argued. They argued that Petraeus, who lied to the FBI, reached a deal to avoid prison entirely. “Mr. Sterling should not receive a different form of justice than General Petraeus,” Sterling’s defense attorneys wrote.
Prosecutors have characterized Sterling’s case as “unique” and argued that the harm he caused to national security was grave. They have argued that Sterling, motivated by “pure vindictiveness,” leaked details that compromised one of the nation’s few ways to deter Iran’s nuclear ambitions, and in doing so, put a Russian scientist who was working with the CIA in danger....
Sterling is scheduled to be sentenced May 11.
Why the US Sentencing Commission's moderate moderation of fraud guidelines has few fans
This new Huffington Post piece, headlined "Why Nobody Is Really Happy With New Guidelines For Punishing White-Collar Criminals," provides an effective review of why the US Sentencing Commissions new amendments to the fraud guidelines is not garnering widespread praise. Here are excerpts:
A federal panel voted earlier this month to amend the guidelines that federal judges use when sentencing people who commit economic crimes. But few are happy with those changes: Sentencing reform advocates say they don't go far enough to fix draconian sentences, while the U.S. Department of Justice contends that the changes could give some white-collar criminals a new avenue for unfair leniency.
Recommended sentences for economic crimes under the current rubric are so severe, they are no longer taken seriously, some prosecutors and judges suggest. Those guidelines have relied on complicated calculations involving criminal gain and inflicted losses that spit out sentences that can appear inconsistent or absurd. One federal New York judge called the math "hocus-pocus." In 2008, for example, a federal judge sentenced a 72-year-old man to 330 years in prison for an investment scam.
The U.S. Sentencing Commission is responsible for coming up with the road map that federal judges can use when issuing these sentences. On April 9, the commission approved new guidelines, which now will be submitted to Congress and will go into effect in November, unless lawmakers intervene.
Chief Judge Patti Saris, who chairs the commission, contended last week that the economic crime guidelines are not broken, but has acknowledged that they could provide more clarity on what to do in the cases of certain first-time, low-level offenders. The changes aim to make punishments more fair by giving greater weight to a criminal's role and his or her intent....
In March, the Justice Department came out against some of these changes, in favor of more targeted reforms. DOJ is worried that the intent clarification could allow white-collar criminals to claim they never meant to hurt anyone. A fraudster running a Ponzi scheme who is caught early, for example, could argue that he hoped the scheme wouldn't fail.
It makes sense that the Justice Department would want to preserve the option to impose harsher sentences in certain cases. Frank Bowman, a professor at the University of Missouri School of Law who has commented on the draft guidelines, said that from DOJ's perspective, stringent guidelines can give them leverage when negotiating plea bargains.
But some legal experts argue that the Obama administration is missing the point in this case. "All we want to do is make guidelines such that a federal prosecutor can actually look a federal judge in the face and say, 'Impose these guidelines as written,'" Bowman said. If the guidelines had more credibility, he added, judges might be more inclined to follow them and hand down stronger sentences. "The Justice Department is cutting off its nose to spite its face," he said.
Mark Holden, senior vice president and general counsel for Koch Industries, told The Huffington Post that he considered the commission's emphasis on offender intent "a positive development and consistent with the Bill of Rights." He added that the guidelines "are an effort to make the punishment fit the crime," but that more needs to be done on criminal justice reform overall....
Advocates say that when it comes to sentencing reform, there are parallels between drug crimes and economic crime. Mary Price, general counsel for Families Against Mandatory Minimums, asked, "Do we just count drugs, or do we look at [the harm] people really intended? How much harm did they cause? … Are they the courier or the mastermind?" She added that she was disappointed with the pending changes to the economic crime guidelines, calling them "rather minimal."
Prior related posts:
- US Sentencing Commission votes to amend fraud guidelines (but not really "fix" that much)
- Basic report on basic changes to fraud guidelines promulgated by US Sentencing Commmission
Monday, April 20, 2015
New Sentencing Commission data reveal within-guideline sentences now rarer than non-guideline sentences
The US Sentencing Commission today released on this webpage its latest, greatest federal sentencing data for all of Fiscal Year 2014 and the first quarter of FY 2015. Here are links to these two new data runs:
First Quarter FY15 Quarterly Sentencing Update (Published April 20, 2015)
Final FY14 Quarterly Sentencing Update (Published April 20, 2015)
I thought Fiscal Year 2014 was likely to be a quirky year for federal sentencing data, primarily because (1) in January 2014, the Commission indicated it probably would reduce the drug sentencing guidelines across the board, and (2) in March 2014, the Attorney General indicated that he supported having the new-reduced-guidelines informally applied in on-going drug cases even though they would not become official until November 2014. Because of this big pending guideline change to a big chunk of federal sentencing cases, I was not surprised that throughout much of Fiscal Year 2014, a majority of sentences did not come within calculated guideline ranges.
Sure enough, the complete USSC data now show that, while FY 2013 had 51.2% of all cases sentenced within the guidelines, in FY 2014 that number dropped significantly to 46%. In other words, less than half of all federal sentences throughout FY 2014 were within-guideline sentences, and it seemed likely that the big change in the overall data from just the prior year largely reflected a drug-sentencing-guideline transition dynamic.
But my view on the overall data story has changed somewhat now that the Commission has released its First Quarter FY15 Quarterly Sentencing Update. I am pretty sure (though not certain) that most drug sentences imposed during the first quarter of FY15 should involve the new-and-improved drug guidelines and thus the transition to the new guidelines should not dramatically distort the overall FY 2015 data (although there is a one-month difference between when the USSC fiscal year and its new-guideline year gets going). But, fascinatingly, the new data reveal that, even with the new guidelines in place, still less than half of all sentences at the start of FY 2015 were within-guideline sentences: specifically, only 46.5% of all sentences in the first quarter of FY 2015 were within-guideline sentences.
For various reasons, this too-brief discussion of USSC data perhaps only highlights how hard it is for me in this space to effectively account for and explain basic federal sentencing data. But, as the title of this post suggests, I think the latest data run now provides reason to believe hat a typical federal judge in a typical case (whatever than means) is now typically a bit more likely to impose a non-guideline sentence rather than a within guideline sentence.
Friday, April 17, 2015
US Sentencing Commission releases data report on illegal reentry offenses
Late yesterday, the US Sentencing Commission released this 30-page report, titled "Illegal Reentry Offenses," which provides a details statistical accounting of the composition and sentencing of a huge chuck of cases in the federal criminal justice system. Here is how this report gets started:
This report analyzes data collected by the United States Sentencing Commission concerning cases in which offenders are sentenced under USSG §2L1.2 — commonly called “illegal reentry” cases. Such cases are a significant portion of all federal cases in which offenders are sentenced under the United States Sentencing Guidelines. In fiscal year 2013, for instance, illegal reentry cases constituted 26 percent of all such cases. As part of its ongoing review of the guidelines, including the immigration guidelines, the Commission examined illegal reentry cases from fiscal year 2013, including offenders’ criminal histories, number of prior deportations, and personal characteristics.
Part I of this report summarizes the relevant statutory and guideline provisions. Part II provides general information about illegal reentry cases based on the Commission’s annual datafiles. Part III presents the findings of the Commission’s in-depth analysis of a representative sample of illegal reentry cases. Part IV presents key findings.
Among the key findings from analysis of fiscal year 2013 data: (1) the average sentence for illegal reentry offenders was 18 months; (2) all but two of the 18,498 illegal reentry offenders — including the 40 percent with the most serious criminal histories triggering a statutory maximum penalty of 20 years under 8 U.S.C. § 1326(b)(2) — were sentenced at or below the ten-year statutory maximum under 8 U.S.C. § 1326(b)(1) for offenders with less serious criminal histories (i.e., those without “aggravated felony” convictions); (3) the rate of within-guideline range sentences was significantly lower among offenders who received 16-level enhancements pursuant to §2L1.2(b)(1)(A) for predicate convictions (31.3%), as compared to the within-range rate for those who received no enhancements under §2L1.2(b) (92.7%); (4) significant differences in the rates of application of the various enhancements in §2L1.2(b) appeared among the districts where most illegal reentry offenders were prosecuted; (5) the average illegal reentry offender was deported 3.2 times before his instant illegal reentry prosecution, and over one-third (38.1%) were previously deported after a prior illegal entry or illegal reentry conviction; (6) 61.9 percent of offenders were convicted of at least one criminal offense after illegally reentering the United States; (7) 4.7 percent of illegal reentry offenders had no prior convictions and not more than one prior deportation before their instant illegal reentry prosecutions; and (8) most illegal reentry offenders were apprehended by immigration officials at or near the border.
In 2013, there were approximately 11 million non-citizens illegally present in the United States, and the federal government conducted 368,644 deportations. The information contained in this report does not address the larger group of non-citizens illegally present in the United States and, instead, solely concerns the 18,498 illegal reentry offenders sentenced under §2L1.2 of the United States Sentencing Guidelines in fiscal year 2013. Therefore, the information should not be interpreted as representative of the characteristics of illegal immigrants generally.
Friday, April 10, 2015
Basic report on basic changes to fraud guidelines promulgated by US Sentencing Commmission
Though the US Sentencing Commission's vote yesterday to revise the fraud sentencing guidelines is very big news for white-collar sentencing in future high-profile federal cases (basic here), this notable sentencing reform got very little news attention. Here are excerpts from this Reuters piece with the most fulsome coverage I have seen:
A federal judicial panel on Thursday adopted new guidelines for sentencing white-collar criminals in fraud cases, in an effort to make punishments more fairly reflect the harm suffered by victims and the intent of offenders to cause harm. The changes approved by the U.S. Sentencing Commission will take effect on Nov. 1 unless Congress objects.
They follow years of criticism from defense lawyers and some judges who say federal sentencing guidelines have led to overly severe punishments, potentially reaching life in prison, because they emphasize financial losses such as from falling stock prices. Judges need not follow the guidelines, but must consider them. "These amendments emphasize substantial financial harms to victims rather than simply the mere number of victims and recognize concerns regarding double-counting and over-emphasis on loss," said Chief Judge Patti Saris of the federal court in Massachusetts, who chairs the commission.
The changes call for "intended" losses to reflect financial harm that defendants "purposely sought to inflict," and give judges greater discretion in factoring actual losses in stocks, bonds or commodities into punishments. They also permit greater punishments when even just one or a few people suffer "substantial financial hardship" from fraud, while current guidelines emphasize the number of victims, even if their losses are small. Another change adjusts fraud losses for inflation for the first time.
The U.S. Department of Justice had expressed concern that the new definition of intended loss could let defendants claim they never intended to financially harm anyone. It also said an inflation adjustment could negate the "overwhelming societal consensus" favoring tougher punishments for fraud, and reduce the length of typical sentences by roughly one-fourth. On the other hand, the Justice Department welcomed the greater focus on actual harm inflicted. A Justice Department spokesman declined to comment on Thursday.
David Debold, a Gibson, Dunn & Crutcher partner who led an advisory group to the commission, said the changes on balance "tend to make sentences more fair" in fraud cases. "They make punishment better reflect the harm that defendants actually intended," he said. "That's an important change, and a good one."
Prior related post:
Thursday, April 09, 2015
US Sentencing Commission votes to amend fraud guidelines (but not really "fix" that much)
As reported in this official press release, "United States Sentencing Commission voted today to adopt changes to the fraud guideline to address longstanding concerns that the guidelines do not appropriately account for harm to victims, individual culpability, and the offender’s intent. The Commission also voted to change the drug quantity table to account for the rescheduling of hydrocodone." Here are some details from the press release concerning this important federal white-collar sentencing news:
The Commission altered the victim enhancement in the fraud guideline to ensure that where even one victim suffered a substantial financial harm, the offender would receive an increased sentence. It also made changes to refocus economic crime penalties toward the offender’s individual intent, while maintaining an underlying principle of the fraud guideline that the amount of loss involved in the offense should form a major basis of the sentence.
“We found through comprehensive examination that the fraud guideline provides an anchoring effect in the vast majority of cases, but there were some problem areas, particularly at the high-end of the loss table,” said Chief Judge Patti B. Saris, chair of the Commission. “These amendments emphasize substantial financial harms to victims rather than simply the mere number of victims and recognize concerns regarding double-counting and over-emphasis on loss.”
The Commission also acted today to provide additional guidance as to which offenders are eligible to receive a reduced sentence as a minor or minimal participant in an offense. “This change is intended to encourage courts to ensure that the least culpable offenders, such as those who have no proprietary interest in a fraud, receive a sentence commensurate with their own culpability without reducing sentences for leaders and organizers,” Saris said....
The Commission also made an adjustment to monetary tables to account for inflation. This goodgovernment measure derives from a methodology provided by Congress and will have an effect on both penalty and fine tables. The amendments will be transmitted to Congress by May 1, 2015. If Congress does not act to disapprove some or all of the amendments, they will go into effect November 1, 2015. More information about this process and the amendments approved today will be available on the Commission’s web site at www.ussc.gov.
At the USSC's website, one can now find this "Preliminary 'Reader-Friendly' Version of Amendments. Though "reader-friendly," the amendments themselves do not really provide a complete picture of just how much these amendments, assuming they are not disapproved by Congress, could impact guideline-sentencing ranges in future high-loss white-collar cases. In addition, and of perhaps particular interest to some currently incarcerated defendants, the Commission has to my knowledge not yet indicated in any formal documents whether, when and how it might consider making these amendment retroactive in a manner that might impact past high-loss white-collar cases.
IMPORTANT FRAUD AMENDMENT RETROACTIVITY UPDATE: A helpful colleague who was able to watch the USSC meeting and votes provided this report on the topic of the potential retroactivity of these amendments:
At the end of the hearing, USSC staff brought up the question of retroactivity and said a motion would be appropriate at this time if the Sentencing Commission wanted the staff to conduct a retroactivity impact analysis. USSC Chair Saris asked whether anyone wanted to make such a motion and no one did. Saris then read a brief statement saying they have a statutory obligation to consider whether any amendments should be retroactive, and they had determined in this case that for these amendments that would not be appropriate.
Notably, if Congress was truly eager to help with prison-crowding problems by doing something for some notable non-violent offenders, I think Congress could provide by statutory direction either that the amendments be made retroactive in whole or in part (or it might at least direct that the Commission consider more fully whether these amendments be made retroactive in whole or in part). Also, back in 2007, when the crack guidelines were first adjusted downward slightly, the Commission did not take up the retroactivity issue until many months after it promulgated amendments lowering the guidelines. But, I suspect absent some significant advocacy by the white-collar defense bar, the die may be already permanently cast against any even partial retroactivity of these new fraud amendments.
Wednesday, April 08, 2015
Terrific review of possible USSC fraud guideline amendments (and DOJ's foolish opposition)
As detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for tomorrow, April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.
I doubt the actual USSC meeting will be a must-see event, though I have urged my sentencing students to tune in. (I plan to watch the meeting live on my iPad while also keeping an eye on another notable on-going event in Augusta, Georgia.) But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases." The entire commentary is a must-read (with lots of great links) for all federal sentencing fans, and here are a few choice excerpts:
On March 12, 2015, the US Sentencing Commission held a public hearing on its annual proposed amendments to the Federal Sentencing Guidelines. A number of the proposals concern the guideline for economic crimes and fraud cases, § 2B1.1. The amendments would reduce the recommended sentence in many such cases, particularly those involving large dollar amounts.
At the hearing the US Department of Justice opposed most of these amendments. DOJ argued that any move to reduce the sentences in fraud cases would be bad policy and would ignore the "overwhelming societal consensus" in favor of harsh punishment for these crimes.... But given the current realities of federal sentencing, DOJ is fighting the wrong battles....
At the March 12 hearing DOJ opposed the inflation adjustment; opposed the amendments concerning sophisticated means, intended loss, and fraud on the market; and supported the new enhancement based on causing victims substantial hardship. In other words, DOJ opposed virtually any amendment that could lead to lower sentences while supporting changes that could lead to higher ones. While this may seem predictable, I think it's a mistake.
DOJ was a lonely voice at the hearing and is definitely swimming against the tide by opposing the amendments. There is a widespread and growing belief that the sentences called for in major fraud cases have become excessive. More broadly, there is an emerging bipartisan movement in the country favoring criminal justice reform, including measures to reduce skyrocketing sentences (particularly for non-violent offenders) and our enormous prison population.
Law professor Frank Bowman provided some compelling hearing testimony tracing the history of the fraud guideline and demonstrating how various forces, both intentional and unintentional, have combined over the years to escalate the sentences in such cases dramatically. As he pointed out, given the large dollar values involved in some recent Wall Street frauds, it's relatively easy for a white-collar defendant to zoom to the top of the sentencing table and end up with a recommended sentence of 30 years or even life in prison—on a par with sentences recommended for homicide, treason, or a major armed bank robbery.
DOJ's resistance to virtually any amendment that might lead to lower sentences in economic crime cases appears short-sighted and runs the risk of looking reflexive. The Sentencing Commission has researched these questions for several years, gathering input from all stakeholders. The proposals seem reasonable and justified, and in fact are more modest than many had hoped.
It's hard to see what criminal justice purpose is being served by the escalating sentences in fraud cases. The prospect of prison does have a powerful and important deterrent effect that is unique to criminal law. But for a typical business executive it's hard to believe there's much additional marginal deterrent value in a possible twenty or twenty-five year sentence as opposed to, say, a fifteen year one.
But the more important fact is that legal developments have rendered DOJ's position in favor of higher guidelines sentences increasingly beside the point. It's been ten years since the Supreme Court ruled in US v. Booker that the mandatory sentencing guidelines were unconstitutional and the guidelines must be advisory only. Later in Kimbrough v. US the Court made it clear that a judge is free to depart from the recommended sentence if the judge disagrees with a policy decision underlying the guidelines.
In this legal environment, DOJ's push for higher guidelines looks like a struggle to keep the barn door closed when the horse left for greener pastures long ago. In the post- Booker/Kimbrough world, if judges believe a sentence called for by the guidelines is out of whack they will simply reduce it. For example, in the recent public corruption case involving former Virginia Governor Robert McDonnell, the judge called the recommended guidelines sentence of six to eight years in prison "ridiculous" and proceeded to sentence McDonnell to only two years.
There's evidence that the same thing is already happening in fraud cases. According to the Sentencing Commission's data, judges sentence below the recommended guidelines range in about 21 percent of fraud cases (not counting those cases where the government itself requests a reduced sentence). But in the Southern District of New York, home to Wall Street and many of the big-dollar fraud cases, judges depart below the guidelines in a whopping 45.6 percent of such cases. It does no good for DOJ to continue to push for extremely high guidelines numbers only to have judges ignore the guidelines and impose the lower sentences that they feel are just and reasonable.
DOJ's approach is worse than futile, it's counter-productive. The more that judges come to regard the guidelines as calling for inappropriate sentences, the more comfortable they may become not following them. This could lead to more widespread departures from the guidelines not merely in fraud cases but in cases across the board, accelerating a deterioration in the force and influence of the guidelines that so far has been held relatively in check since Booker.
April 8, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Sunday, March 29, 2015
"Federal Sentencing 'Reform' Since 1984: The Awful as Enemy of the Good"
The title of this post is the headline of this notable new article by Michael Tonry now available via SSRN. Here is the abstract:
The federal sentencing system was conceived in one era and delivered in another. When the first bills that culminated in passage of the Sentencing Reform Act of 1984 were introduced, they aimed at reducing the worst excesses of indeterminate sentencing and achieving greater fairness, consistency, equality, accountability, and transparency in sentencing federal offenders. The overriding goal was reduction of unwarranted racial and other disparities.
In the different political climate of the mid-1980s the federal sentencing commission instead sought to achieve greater rigidity and severity and to respond to the law-and-order policy preferences of the Reagan administration and the Republican-controlled US Senate. Probation, formerly the sentence of half of convicted federal offenders, was nearly eliminated as a stand-alone punishment. Lengths of prison sentences increased enormously. After the federal guidelines took effect, buttressed by a plethora of mandatory minimum sentence laws, the growth of the federal prison population far outpaced that of the states and the federal system became the extreme example nationally and internationally of the dangers of politicization of crime policy. The political climate may be changing and the federal system may change with it. Only time will tell.
Saturday, March 14, 2015
Reviewing DOJ's opposition to any fraud guideline amendments
This Reuters article, headlined "Justice Department objects to white-collar sentencing reforms," details that the US Department of Justice is not too keen on proposed reformed to the federal sentencing guidelines for fraud offenses. Here are the excerpts:
The U.S. Justice Department has come out broadly against a series of proposals from a federal panel that would cut prison time for white-collar criminals. The department's views, revealed on Thursday at a hearing of the U.S. Sentencing Commission, marked a potential setback for the proposals, which defense lawyers had already criticized for being too moderate.
In a letter released at the meeting, the department objected to a proposal to adjust victim losses for inflation for the first time since 1987. Losses directly influence recommended prison term lengths, and the move would reduce fraud sentences by 26 percent on average. "It seems a somewhat odd thing to do," Benjamin Wagner, the U.S. Attorney for the Eastern District of California, said at the hearing.
The Justice Department also objected to a proposal to shift the emphasis in calculating sentences for stock fraud cases to financial gains instead of investor losses, a change that could reduce the amount of prison time some executives would face. The department's position came amid continuing debate over whether changes to the guidelines are necessary to address what even some judges have said are overly harsh recommended punishments for fraud offenders.
Fraud offenses constitute the third largest type of federal crime in America, behind only immigration and drugs cases. Over the last decade, average prison sentences for fraud have lengthened three-fold, the commission said. But after the U.S. Supreme Court declared the guidelines advisory in 2005, judges increasingly gave shorter terms than what the commission recommended. In 2012, the average fraud sentence was 22 months, compared to the 29-month minimum recommended, the commission said.
Critics say the data shows many judges view the guidelines as overly-driven by victim losses, at times resulting in potential life sentences in cases like stock frauds with high-dollar amounts.
The commission's proposals, released in January, were viewed as too moderate by groups like the American Bar Association, which had pushed for broader revision de-emphasizing the influence losses have not just in cases involving the stock market but also for other frauds, such as in mortgages and healthcare. Still, the commission said its proposal to adjust the loss calculations for inflation would itself reduce sentence lengths.
The Justice Department said any reduction would be contrary to "overwhelming societal consensus." Several commissioners, though, appeared skeptical of the department's position.
Prior related posts:
- US Sentencing Commission hearing on proposed fraud and other guideline amendments
- Brief account of what proposed fraud guideline changes might amount to
- US Sentencing Commission proposes (modest but significant) changes to the fraud guidelines
Thursday, March 12, 2015
US Sentencing Commission hearing on proposed fraud and other guideline amendments
Today, as detailed at this webpage with the official agenda, the US Sentencing Commission is holding a public hearing to receive testimony from invited witnesses on proposed amendments to the federal sentencing guidelines. This event is being streamed live (for the first time, I think), and can be watched at this link.
This webpage with the official agenda also provides links to the submitted written testimony of the scheduled witnesses. Most of the interesting conceptual and technical debate about guideline amendments this cycle are focused on the fraud guidelines, which have been subject to an array of criticisms due especially to their severity in cases including significant "loss" calculations. But, as the Department of Justice's written testimony (available here) makes the case that there is nothing really broken in the fraud guideline that needs to be fixed:
Lessening penalties for economic crime would be contrary to the overwhelming societal consensus that exists around these offenses. All three branches of government have expressed a belief that the sentences for fraud offenses are either appropriate or too low....
The Department also feels that penalties for economic crimes should remain unchanged and not be decreased. The proportionality established between loss and offense level is based upon numerous policy considerations, including how economic crimes should be punished and deterred. In the Department's experience and judgment, the harm from economic crimes is generally not being overstated.
In notable contrast, the written testimony of Professor Frank O. Bowman, III (available here) has a very different take on the realities of the fraud guidelines:
[F]or the last decade or so, the loudest complaint about §2B1.1 has been that it prescribes sentences which, at least for some defendants, are far too high. In particular, many observers have argued that for some high-loss defendants the guidelines now are divorced both from the objectives of Section 3553(a) and, frankly, from common sense....
Accordingly, one would have expected the proposed 2015 amendments to §2B1.1 to concentrate on the class of high-loss offenders the Commission seems to agree are over-punished by the guidelines. Curiously, however, the proposed amendments – though in several cases laudable for other reasons – would have virtually no material impact on the guidelines ranges for very high loss offenders, while producing modest guidelines reductions for significant numbers of low-to-moderate-loss offenders.
<P>I agree with the Commission’s basic conclusion that for many, perhaps most, economic offenders the Guidelines do not suggest manifestly unreasonable sentences. But I also agree with Judge Saris’s implicit conclusion that for many high-loss offenders the fraud guideline is “fundamentally broken.” The Commission doubtless believes that the modest proposals put forward in this cycle will at least ameliorate the high-loss offender problem. Unfortunately, the guidelines for high-loss offenders are so “fundamentally broken” that these modest measures will have no meaningful effect.
Wednesday, March 11, 2015
Colson Task Force highlights " biggest driver of growth in the prison population is in federally sentenced drug offenders"
As reported in this Crime Report piece, the Charles Colson Federal Corrections Task Force has just released this notable new research brief titled "Drivers of Growth in the Federal Prison Population." Here are excerpts from the document (with emphasis in original):
The federal prison population has grown by 750 percent since 1980, resulting in rapidly increasing expenditures for incarceration and dangerous overcrowding. In response, Congress created the Charles Colson Task Force on Federal Corrections to examine trends in correctional growth and develop practical, data-driven policy responses. Following the example of many states that have recently engaged in criminal justice reform, the first step for the Task Force is to understand the underlying drivers of growth in the prison population.
The biggest driver of growth in the prison population is in federally sentenced drug offenders, almost all of whom were convicted of drug trafficking. In fiscal year (FY) 2013, there were almost 50,000 more drug offenders in federal prisons than there were in FY 1994. Incarceration for drug offenses disproportionately affects nonwhite offenders: in FY 2013, over 75 percent of all drug offenders in federal prison were black or Hispanic....
The population growth is driven by both the number of people who are admitted to prison for drug crimes every year and the length of their sentences. In FY 2013, more people were admitted to federal prison for drug crimes than any other crime type, and the average sentence for those entering prison was almost six years. Every year, about 95 percent of federally sentenced drug offenders receive a term of incarceration as part of their sentence, up from about 76 percent in the year before the passage of the Anti-Drug Abuse Act in 1986, which established mandatory minimum penalties for certain drug offenses.
In particular, length of stay for drug offenders, often dictated by statutory mandatory minimum penalties, has driven most of the recent growth. Though the number of admissions has remained largely constant over time, the number of drug offenders in federal prison has increased because of people serving longer sentences.
Monday, March 09, 2015
"Hey, Grandpa: End Mandatory Minimums!"
The title of this post is the headline of this Daily Beast piece highlighting the generational divide which now impacts the fate and future of some proposed federal sentencing reforms. Here are excerpts:
[A] wave of young conservative leaders has been pushing for a variety of reforms to address problems that, in many cases, disproportionately affect the African-American community. The bad news it that these conservatives have a formidable adversary: Their elders.
When word leaked last month the Smarter Sentencing Act would be reintroduced, Iowa Sen. Chuck Grassley, 81, wasted little time in going nuclear. “It is a fact that the so-called Smarter Sentencing Act would cut in half the mandatory minimum sentences that Congress put in place for distributing drugs to benefit terrorists or terrorist organizations,” he said. ... Terrorists?!?
The bipartisan Smarter Sentencing Act included Republicans Mike Lee, Ted Cruz, Rand Paul, and Jeff Flake as co-sponsors — hardly the sort to want to help fund terrorists. But this isn’t a new line for Grassley, who is chairman of the Judiciary Committee, and it isn’t clear whether the terrorist line is a sincere (albeit wrongheaded and crank-ish) concern, or merely a way to kill reform....
According to Vikrant Reddy, a senior policy analyst for the conservative Right on Crime, the generational divide — not the partisan divide — is the issue. “It is true that Senator Grassley has expressed skepticism about the Cruz-Lee proposals, but it is also true that Dianne Feinstein voted against last year’s Recidivism Reduction and Public Safety Act," Reddy said. “Senators Grassley and Feinstein have very little in common, but they do share a generation: They are both exactly 81 years old.”
Meanwhile, the loudest voices for criminal justice reform in Congress are members of Generation X: Mike Lee is 43, Ted Cruz is 44, and Cory Booker is 45. But Reddy doesn’t want to bash his elders just for the sport of it. There is, he insists, a perfectly good explanation for the generational divide: Grassley and Feinstein came of age in an era of high crime....
But the violent crime rate has consistently dropped in recent decades, and many reformers believe the pendulum has swung too far. “We may be at the point where high levels of incarceration are themselves ‘criminogenic,’ meaning that they actually cause more crime than they prevent, because extremely lengthy prison stays produce high recidivism rates,” says Reddy.
It would be a mistake to return to the bad old days of being soft on crime, but it would also be foolish to fail to adapt to changing times. Rather than resting on our laurels, we should continue to tweak and fix problems. Bipartisan agreement is rare in Washington, and it would be a shame to scuttle one of the few areas where conservative reformers have a real opportunity to do well by doing good.
... And they might have gotten away with it, too, if it weren’t for those meddling codgers.
Friday, February 27, 2015
How might US Sentencing Commission's new Tribal Issues Advisory Group deal with marijuana law and policy?
The question in the title of this post is prompted by this notable new US Sentencing Commission press release, which was released on a day I am participating in the first ever Tribal Marijuana Conference (some background here via MLP&R). Here are excerpts from the press release:
The United States Sentencing Commission announced today the formation of a Tribal Issues Advisory Group (TIAG), which will consider methods to improve the operation of the federal sentencing guidelines as they relate to American Indian defendants, victims, and tribal communities.
The TIAG will look at whether there are disparities in how federal sentencing guidelines are applied to defendants from tribal communities or in the sentences received by such defendants as compared to similarly situated state defendants. The group will also examine whether there should be changes to the guidelines to better account for tribal court convictions or tribal court orders of protection and consider how the Commission should engage with tribal communities in an ongoing manner....
The TIAG is composed of federal appointees and at-large members. The federal judge appointees are Judge Diane Humetewa from Arizona, Judge Brian Morris from Montana, Chief Judge Ralph Erickson from North Dakota, and Chief Judge Jeffrey Viken and Judge Roberto Lange from South Dakota. The ten at-large members were selected from a broad array of applicants from across the country, and they represent a wide spectrum of tribal communities and roles in the criminal justice system. The TIAG at-large members include tribal court judges, social scientists, law enforcement officials, defense attorneys, and victims’ advocates.
“I commend the Commission for creating a mechanism to develop insights and information that have the potential to improve the lives of our citizens in Indian Country,” said Chief Judge Erickson. “I look forward to working with the distinguished members of this Group and with the Commission to rationally address longstanding sentencing issues in Indian Country.”
There are literally hundreds of tribal attendees at the tribal marijuana conference because it seems a number of tribal leaders think there is a chance that, despite federal prohibition, marijuana activity on tribal lands might "have the potential to improve the lives of our citizens in Indian Country." Of course, this new USSC advisory group has more than enough challenging issues to consider without getting into marijuana law and policy matters. But, especially because typically only the feds have full criminal jurisdiction in tribal lands, I think it will unavoidable for TIAG to discuss marijuana enforcement issues if (and when?) a number of tribes jump into the marijuana industry in the weeks and months ahead.
February 27, 2015 in Federal Sentencing Guidelines, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Thursday, February 26, 2015
US Sentencing Commission releases report on LWOP sentences in federal system
I am intrigued and pleased to see that today the US Sentencing Commission has released this effective (reader-friendly) new report titled "Life Sentences in the Federal System." The entire 20-page report is a must read for anyone (like me) who fears we pay too much attention to much attention to a handful of death sentences and too little attention to hundreds of LWOP sentences. Here is how this new report gets started:
Life imprisonment sentences are rare in the federal criminal justice system. Virtually all offenders convicted of a federal crime are released from prison eventually and return to society or, in the case of illegal aliens, are deported to their country of origin. Yet in fiscal year 2013 federal judges imposed a sentence of life imprisonment without parole on 153 offenders. Another 168 offenders received a sentence of a specific term of years that was so long it had the practical effect of being a life sentence. Although together these offenders represent only 0.4 percent of all offenders sentenced that year, this type of sentence sets them apart from the rest of the offender population. This report examines life sentences in the federal system and the offenders on whom this punishment is imposed.
There are numerous federal criminal statutes that authorize a life imprisonment sentence to be imposed as the maximum sentence. The most commonly used of these statutes involve drug trafficking, racketeering, and firearms crimes. Additionally, there are at least 45 statutes that require a life sentence to be imposed as the minimum penalty. These mandatory minimum penalties generally are required in cases involving the killing of a federal official or other government employee, piracy, or repeat offenses involving drug trafficking or weapons. In fiscal year 2013, 64 of the 153 offenders who received a sentence of life imprisonment were subject to a mandatory minimum penalty requiring the court to impose that sentence.
February 26, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack
Friday, February 20, 2015
Virginia's former first lady facing sentencing after hubby got only two years
Today brings another high-profile white-collar sentencing in the federal court in Virginia as Maureen McDonnell, former first lady, is to come before the same judge who sentenced former Virginia Gov Robert McDonnell to two years' imprisonment last month. Helpfully, Randall Eliason at the Sidebars Legal Blog provides this preview, titled "What to Expect at Maureen McDonnell’s Sentencing." Randall provides this refined summary of the guideline basics and the parties' recommendations:
The Presentence Report prepared by the U.S. Probation Department concludes that the Sentencing Guidelines call for a sentence of 63-78 months in prison. The prosecution agrees with those calculations but recommends the judge sentence her to only 18 months in prison to avoid an unwarranted disparity between her sentence and that of her husband. Mrs. McDonnell’s attorneys argue that, properly calculated, the Sentencing Guidelines call for only 33-41 months, but urge the judge to depart even further from the Guidelines and sentence her to probation along with 4000 hours of community service.
In addition, the Washington Post has this article headlined "Everything you need to know about Maureen McDonnell’s sentencing." But that piece does not set out these guideline basics, so the headline is not accurate for hard-core federal sentencing geeks like me.
UPDATE: As this Washington Post piece reports, "Maureen McDonnell was sentenced Friday to a year and a day in federal prison after an emotional, hours-long hearing in which the former first lady of Virginia apologized publicly for the first time since she and her husband were accused of public corruption."
As all competent federal sentencing lawyers know, a sentence of a year and a day for the former first lady is actually better than a sentence of one year. That extra day makes her formally eligible to earn good-time credit, which nearly all non-violent offenders earn. So, practically, Ms. McDonnell is now likely to be released from federal custody after only 10.5 months in the federal graybar hotel.
February 20, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1) | TrackBack
Wednesday, February 18, 2015
Yet again, Sixth Circuit reverses one-day sentence for child porn downloading as substantively unreasonable
Regular readers who follow federal sentencing in child porn cases likely recall that the Sixth Circuit and an Ohio-based federal district judge got into a sentencing tug-of-war over the sentencing of child porn downloader Richard Bistline not long ago. And even irregular readers should know that circuits, if they stick with it, will always win these kinds wars. More proof of that reality come from another similar Sixth Circuit case decided today, US v. Robinson, No. 13-230806 (6th Cir. Feb. 18, 2015) (available here), which starts this way:
The government appeals, for the second time, from the noncustodial sentence imposed on Rufus Robinson (“Defendant”) for the possession of more than seven thousand images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Defendant’s previous sentence of one day of incarceration and five years of supervised release was held substantively unreasonable by this Court in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012) (“Robinson I”). On remand, the district court again sentenced Defendant to one day of incarceration, with credit for time served. The district court also lengthened the period of supervised release and imposed additional conditions of release. The government’s second appeal raises the question of whether this second sentence is substantively reasonable.
For the reasons set forth below, we VACATE Defendant’s sentence and REMAND the case for reassignment and resentencing.
Prior related posts concerning similar case:
- Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
- District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal
- "Should defendants’ age, health issues be sentencing factors?"
- Sixth Circuit panel, again, finds substantively unreasonable a non-prison sentence for child porn downloading in Bistline
February 18, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, February 17, 2015
"How to Talk About Sentencing Policy — and Not Disparity"
The title of this post is the title of this terrific new piece by Nancy Gertner just published by the Loyola University Chicago Law Journal. I consider most everything Prof (and former Judge) Gertner writes about sentencing to be a must-read, and these passages from the start of the piece reinforce my sense that this new commentary is especially timely and important:
I want to talk about why I don’t want to discuss sentencing disparity, why this is an issue far, far less important than issues of sentencing fairness, of proportionality, of what works to address crime. Disparity-speak has sucked the air out of all interesting and meaningful discussion of criminal justice reform for the past several decades....
The mythology of rampant sentencing disparity without guidelines has driven American sentencing for decades. The problem is that you cannot build a rational sentencing regime if the only important question is this one: Am I doing the same thing in my courtroom that you are doing in yours, even if neither of us is imposing sentences that make sense, namely, that work to reduce crime? You cannot talk about disparity unless you understand the context—disparity in sentencing with respect to what? What purposes? What characteristics? Similarly situated with respect to what? The offense? The chances of deterrence? Amenability to treatment?...
To eliminate sentencing disparity, the United States Sentencing Commission and Congress chose to treat drug quantity the same across contexts, contexts that were very different. I want to talk about those contexts and the content of a just sentence. How do we deal with drug addiction? What is the punishment that makes sense? When is drug treatment appropriate in lieu of imprisonment? I want to talk about problem solving courts, reentry programs, and meaningful diversions. How can neuroscience help us craft treatment? What evidence based practices should we implement? What works?
And, above all, I want to talk about how to meaningfully undo the catastrophe of mass incarceration in this country, the catastrophe that we have created with our dual emphasis on eliminating disparity, and imprisonment as a cure all. It is a “one size fits all” approach, and that “size” has been ever more imprisonment. I want to talk about our uniformity-focused, criminal-record emphasis, incarceration-obsessed criminal justice policy.
February 17, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1) | TrackBack
Monday, February 16, 2015
Feds assert, despite reversal of hate crime convictions, Amish beard-cutters should get same sentences
As reported in this AP piece, headlined "Federal prosecutors want same sentences in Amish beard-cutting case when they are resentenced," the feds are claiming that the reversal on appeal of the most-serious charges against a group of Amish defendants (details here) should not impact their sentence one whit. Here are the details:
Sixteen Amish men and women whose hate crime convictions in beard- and hair-cutting attacks were overturned still should receive the same sentences, federal prosecutors told a judge who will resentence the group.
The members of the eastern Ohio Amish group are scheduled to be resentenced March 2 after the 6th U.S. Circuit Court of Appeals overturned only their hate crimes convictions. New sentences are required because the original sentences were based both on hate crimes convictions and convictions on other charges but did not differentiate between them.
The attacks were in apparent retaliation against Amish who had defied or denounced the authoritarian style of Sam Mullet Sr., leader of the Bergholz community in eastern Ohio. The U.S. Attorney's Office, in a court filing on Friday, said Mullet should be resentenced to 15 years for concealing evidence and making false statements to the FBI. Both of those charges were not overturned.
The other defendants should also be given the same lesser sentences. Those defendants who have already been released should be sentenced to time served, the prosecutors said.
Prosecutors argued that the conduct that led to the hate crime charges, which included kidnapping, should still be considered even if the defendants are no longer convicted of a hate crime.
Defense attorneys are expected to file their response next week.
I am neither surprised or troubled that the feds want the same sentences imposed on the less culpable defendants who have already finished serving their prison time. But I struggle to see how urging the same exact sentence for Sam Mullet Sr. despite reversal of the most serious convictions against him serves to "promote respect for the law" as 18 USC 3553(a)(2)(A) requires.
Related prior posts:
- Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
- Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
- Interesting defense arguments for sentencing leniency in Amish beard-cutting case
- Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang
- Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?
- "Amish beard-cutting ringleader gets 15 years"
- Guest post on Amish sentencing: "A Travesty in Cleveland"
- Based on Burrage, split Sixth Circuit panel reverses federal hate crime convictions for Amish beard-cutters
February 16, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack
Wednesday, February 11, 2015
District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader
This fascinating story from the federal courts in the Northern District of Ohio provides an interesting perspective on the input and impact that juries can have in the federal sentencing process in at least one courtroom. The piece is headlined "Cleveland federal judge's five-year sentence in child porn case frustrates prosecutor," and here are excerpts:
A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.
A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.
Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.
Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.
But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.
In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."
Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer. Gwin rejected that argument, though, explaining that all of the photos were presented as evidence, even if they were not shown at trial.
Under federal law, either prosecutors or defense attorneys can appeal a sentence if they feel it was improper. It is uncommon for federal judges to issue sentences that go so far below the probation office's recommendations, though, so appeals by prosecutors are rare. Mike Tobin, a spokesman for the U.S. Attorney's Office, said that prosecutors "will review the judge's sentence and make a decision at the appropriate time."...
Iams also said that even though his client was convicted by a jury, the fact that he went to trial may have helped Collins in the end, since Gwin was then able to poll the jury and get an idea of where the community's feelings were on sentencing. "If he had just pled guilty, that might have not been there. At the end of the day, it may have helped," Iams said.
Collins was taken into custody following his sentencing. In addition to the prison sentence, Collins was also ordered to pay a $5,000 fine and $10,000 in restitution to two girls seen in the pornography Collins downloaded. Once he is released, he will have to register as a sex offender and will be on supervised release for five years.
February 11, 2015 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
Tuesday, February 10, 2015
Two notable Second Circuit opinions upholding aggravated sentencing decisions
A helpful reader alerted me to two Second Circuit sentencing decisions handed down this morning. Though neither seems all that ground-breaking, both still strike me a blogworthy. Here are links to the rulings along with an excerpt from the start of the opinions:
United States v. Morrison, No. 14-485 (2d Cir. Feb. 10, 2015) (available here):
Defendant-Appellant Shane Morrison appeals from a February 6, 2014 judgment of the United States District Court for the Eastern District of New York (Wexler, J.) sentencing Morrison to, inter alia, eighteen months’ imprisonment following his guilty plea to one count of conspiracy to distribute cocaine. Morrison argues that 18 U.S.C. § 3153(c) bars the district court’s reliance on positive results on drug tests administered by the Pretrial Services Agency (“pretrial services”) to enhance his term of imprisonment. Because the district court did not violate § 3153(c) by relying on the information from pretrial services in determining Morrison’s sentence, we affirm the judgment.
United States v. Cramer, No. 14-761 (2d Cir. Feb. 10, 2015) (available here):
Defendant Thomas Cramer appeals from a judgment of conviction and sentence of 360 months’ imprisonment and 15 years of supervised release, entered on February 21, 2014 by the U.S. District Court for the Western District of New York (Geraci, J.), following his guilty plea to four counts of sex trafficking of a minor in violation of 18 U.S.C. § 1591(a)(1) and (b)(2). On appeal, Cramer argues that his sentence was procedurally unreasonable because he received a two-point enhancement under U.S. Sentencing Guidelines Manual section 2G1.3(b)(3) for use of a computer in the commission of the crimes. This case presents two issues of first impression in this Circuit: First, does the computer-use enhancement under Guidelines subsection 2G1.3(b)(3)(A) apply to a defendant who begins communicating and establishing a relationship with a minor by computer, but then entices the victim through other modes of communication? Second, is Application Note 4 to Guidelines section 2G1.3 plainly inconsistent with subsection 2G1.3(b)(3)(B) and therefore inapplicable to that subsection? We answer both questions in the affirmative.
Friday, January 23, 2015
US Sentencing Commission essentially giving up on fixing definition of "crimes of violence"
As noted in prior posts here and here, the US Sentencing Commission earlier this month publish proposed guideline amendments with some modest but significant possible revisions to the federal fraud sentencing guidelines. One reason these modest proposed guideline changes could be the most consequential reform coming from the Commission this year is because, as noted at the very end of these remarks at by the USSC Chair Patti Saris, it appears the Commission has given up its effort to seek to improve the doctrinal problems surrounding another big part of the federal sentencing guidelines:
I did want to briefly address an issue that does not appear in the proposed amendments. As I announced at the last public meeting, the Commission held a roundtable discussion this fall on the definition of “crimes of violence” and related terms. We had hoped that we would be positioned to publish some proposals today as an outgrowth of that very informative roundtable, and we conducted considerable follow up work after that event. But ultimately, after much consideration of this issue internally and consultation with leading experts, the Commission concluded that, given the existing statutory scheme, any attempts by the Commission at this time to clarify these definitions or establish more consistency within the guidelines would likely only lead to more confusion and renewed litigation. We are currently considering whether it would be helpful for the Commission to issue a report on this issue with recommendations for legislative fixes.
I am a bit disappointed and troubled that the USSC thinks the best way now to deal with all the confusion and litigation over some key guideline terms is just to give up trying to fix these terms. But I also understand the challenge the USSC faces given that these terms are so significant in federal statutes that the Commission cannot itself amend. And, perhaps usefully, the Commission's struggles here might further embolden the Supreme Court to declare part of the Armed Career Criminal Act unconstitutionally vague as it reconsiders the pending Johnson case (as discussed here).
Tuesday, January 13, 2015
Brief account of what proposed fraud guideline changes might amount to
This new Reuters article, headlined "U.S. panel proposes changes to white-collar prison sentences," provides a reasonable summary of the likely import and impact of the guideline reform proposes announced by the US Sentencing Commission late last week (discussed here). Here are excerpts:
Some executives and others convicted of stock fraud could face shorter prison terms under a U.S. commission's proposal to change how white-collar criminals are sentenced. The U.S. Sentencing Commission on Friday released proposals to amend advisory federal guidelines that would shift the emphasis in calculating a sentence for frauds on the market to financial gains instead of investor losses.
The proposal follows years of criticism by defense lawyers and some judges who say that the guidelines focus too much on financial losses caused by fraud, leading in certain cases to sentences that are too harsh. Judges have discretion to impose any sentence, but are required to consider the guidelines.
In stock fraud cases, losses can be in the hundreds of millions of dollars, contributing to an advisory sentence of life in prison. Under the commission's proposal, judges in these cases would consider the gains from a fraud, a number defense lawyers say would often be considerably smaller.
The Sentencing Commission has scheduled a March 12 hearing on the proposals. The panel has until May 1 to submit any amendments to Congress. If Congress does not act by Nov. 1, the changes become law....
The commission has proposed setting a threshold sentencing level for gains, ensuring punishment in cases where profits are minimal. Depending on what floor is set, there is a "very good chance a number of cases would result in lower guideline sentencing ranges," said David Debold, a lawyer at Gibson, Dunn & Crutcher who heads up an advisory group to the commission.
Defense lawyers cautioned that the proposed changes would not always result in a lower sentencing range. Some frauds like penny stock manipulation, for example, could involve significant gains to defendants and might still lead to lengthy sentences. Other proposals would affect the weight given to factors such as the harm to victims and the sophistication of a fraud.
Some defense lawyers say the proposals overall do not sufficiently emphasize a defendant's culpability and leaves loss as a driving factor for the bulk of fraud cases involving identity theft, mortgage fraud and healthcare fraud. "These changes don't go nearly as far as we would have liked," James Felman, a Florida lawyer and member of an American Bar Association task force advocating changes to the guidelines.
U.S. District Judge Patti Saris, the commission's chair, said in a statement that the panel did not consider "the guideline to be broken for most forms of fraud," but that its review had identified "some problem areas where changes may be necessary."
Prior related post:
Friday, January 09, 2015
US Sentencing Commission proposes (modest but significant) changes to the fraud guidelines
As reported in this official news release, the "United States Sentencing Commission voted today to publish proposed guideline amendments, including revisions to the sentencing guideline governing fraud." Here are the basics from the release:
The bipartisan Commission voted to seek comment on a proposed amendment to revise guideline §2B1.1 governing fraud offenses by clarifying the definition of “intended loss,” which contributes to the degree of punishment, and the enhancement for the use of sophisticated means in a fraud offense. The proposed amendment also revises the guideline to better consider the degree of harm to victims, rather than just the number of victims, and includes a modified, simpler approach to “fraud on the market” offenses which involve manipulation of the value of stocks.
The proposed revisions to the fraud guidelines come after a multi-year study, which included a detailed examination of sentencing data, outreach to experts and stakeholders, and a September 2013 symposium at John Jay College of Criminal Justice in New York. “We have heard criticism from some judges and members of the bar that the fraud guideline may be fundamentally broken, particularly for fraud on the market cases,” said Judge Patti B. Saris, Chair of the Commission. “Based on our extensive examination of data, we have not seen a basis for finding the guideline to be broken for most forms of fraud, like identity theft, mortgage fraud, or healthcare fraud, but this review has helped us to identify some problem areas where changes may be necessary.”...
Consistent with the Commission’s mission to make the guidelines more efficient and more effective, the Commission also voted today to clarify the provisions allowing for sentence reductions for offenders with mitigating roles in the offense and the provisions governing jointly undertaken criminal activity. The Commission similarly proposed adjusting the tables based on amounts of money for inflation in an attempt to keep the guidelines current and follow the approach generally mandated by statute for most civil monetary penalties....
The proposed amendments and issues for comment will be subject to a public comment period running through March 18. A public hearing on the proposed amendments will be scheduled in Washington, D.C., on March 12. More information about these hearings, as well as a data presentation on today’s proposed fraud amendment and other relevant data, will be available on the Commission’s web site at www.ussc.gov.
Here are links to new materials already posted on the USSC website this afternoon:
- "Reader-Friendly" Version of Proposed Amendments (January 9, 2015)
- Chair's Remarks at Public Meeting (January 9, 2015)
As the title of this post indicates, these new proposed amendments strike me as relatively modest but still quite significant. Most notably, the white-collar defense bar is likely to be very interested in what these changes signal and suggest, and any federal fraud defendants currently serving very long guideline sentences may want to start thinking about whether these proposed amendments might help their cause if they are formally adopted and thereafter made retroactive.