Wednesday, February 12, 2014

Will (and should) former mayor Ray Nagin get a sentence making it likely he dies in federal prison after his corruption convictions?

The question in the title of this post is the first sentencing question that came to mind upon hearing this criminal justice news from a Louisiana federal court this afternoon:

Ray Nagin, the former two-term mayor of New Orleans indicted after he left office, was convicted Wednesday of 20 federal corruption charges for illegal dealings with city vendors, dating back to 2004.  A jury delivered its verdict just before 1 p.m., after six hours of deliberations that followed a nine-day trial.

Nagin, 57, joins a list of Louisiana elected officials convicted of misdeeds while in office, but he is New Orleans' first mayor to be convicted of public corruption.  Under federal sentencing guidelines, he could face a 20-year prison term, possibly more, lawyers have said.

In a case that relied heavily on the testimony of businessmen-turned-convicts -- and a paper trail that showed money changing hands and lucrative city contracts doled out -- prosecutors described a public official "on the take."  Nagin was an opportunist who pursued businessmen under pressure to get government work, targeting them to line his own pockets, prosecutors said....

Nagin was somber and silent as he made his way through a crush of reporters outside of the courthouse -- a far cry from the confidence he showed when he first arrived more than two weeks ago at the start of his trial.  Addressing the press, Jenkins said, "Obviously, I'm surprised. Now we're moving on to the appeal process."

Assistant U.S. Attorney Matt Coman, the lead prosecutor on the case, gave a brief statement. "We are pleased with the verdict and obviously we are very thankful to the jury and the court," he said....

Nagin, a Democrat, was the public face of the city during Hurricane Katrina, making national headlines as he lambasted the federal government for its response to the storm and subsequent flood.

He lives in Frisco, Texas, where he has avoided the spotlight, staying quiet save for an occasional tweet, since his indictment a year ago. Sentencing is set for June 11 before U.S. District Judge Ginger Berrigan.

As the title of this post suggests, I would urge now-convicted Nagin to urge his lawyers to get very focused on the federal sentencing process before they start "moving on to the appeal process." As the article above notes, federal prosecutors are likely to argue that the guidelines applicable here recommend a sentence of decades for Nagin, and judges within the Fifth Circuit tend to be drawn toward imposing within guidelines sentences. Ergo, unless and until Nagin's lawyers start developing some strong sentencing arguments on his behalf, the former mayor of New Orleans may be looking at the real possibility that he gets a federal prison sentence later this year that amounts to a functional life sentence.

February 12, 2014 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (12) | TrackBack

Wednesday, January 22, 2014

Highlights from Federal Sentencing Reporter issue on “White-Collar Sentencing”

I noted in this recent post that I have the honor of speaking this coming Friday morning at a sentencing seminar in New York City sponsored by Proskauer’s White Collar Defense & Investigations Group. This event has been planned in conjunction with the publication of Federal Sentencing Reporter's latest issue on “White-Collar Sentencing” (Vol. 26.1, October 2013). Helpfully, FSR's publisher has made these two articles from this issue available for download without a subscription:

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

Sunday, January 19, 2014

Terrific white-collar sentencing event highlighting terrific FSR issue on white-collar sentencing

FsrFor reasons that should be obvious, I may be showing a bit of bias in my positive description of an event in New York City at which I will be speaking this coming Friday and which is promoting this recent white-collar sentencing issue of a publication that I help manage.  Nevertheless, as highlighted by the invitation and links in this announcement of the event, I do not think my inherent bias undermines the validity of my excitement and praise for this event:

The Current State of White-Collar Sentencing 

Please join Proskauer’s White Collar Defense & Investigations Group and the Federal Sentencing Reporter (FSR) for a seminar on criminal sentencing, presented in conjunction with the publication of FSR’s latest issue “White-Collar Sentencing” (Vol. 26.1, October 2013). 

Friday, January 24, 2014 
Registration and Breakfast: 8:00 a.m. - 8:30 a.m. 
Program: 8:30 a.m. - 11:30 a.m. 

Eleven Times Square (41st Street and 8th Avenue) 
New York, NY 10036
Register here

Featured speaker Professor Douglas A. Berman, of The Ohio State University Moritz College of Law, author of the nationally acclaimed Sentencing Law and Policy blog, will lead off the program with a discussion of current topics in white-collar sentencing.  This program will feature a review of recent developments in the field, the latest data and statistics, and proposals from distinguished thought leaders on potential improvements to current sentencing policies and procedures.  Our panelists will include current members of the U.S. Sentencing Commission’s Practitioners Advisory Group, academics, and practitioners:

January 19, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Recommended reading, White-collar sentencing | Permalink | Comments (0) | TrackBack

Friday, January 17, 2014

"Political odd couples push sentencing reform" ... and have little to show so far

The title of this post is drawn from the headline of this Washington Post entry, with a dash of my cynicism added and explained after an excerpt:

At a time when partisans in Congress don't agree on anything, they have found one area where they can: Reforming America's sprawling and costly prison system.  Nearly 30 years after creating mandatory sentences for drug offenses, an unlikely band of lawmakers is moving forward with their plans to fix what they say is a broken criminal justice system....

The Senate Judiciary Committee is working through several reform bills crafted by lawmakers from the liberal and conservative wings of the two parties to put together a plan, which, they say, will help alleviate the financial and humanitarian costs of the spending guidelines.

So who are these unlikely co-sponsors?  Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) have joined forces and put together a bill that would give judges flexibility when they hand down sentences for nonviolent drug offenders.  A House counterpart to the Durbin- Lee bill is co-sponsored by the unlikely duo of Reps. Raul Labrador (R-Idaho) and Bobby Scott (D-Va.).  Another bill, sponsored by Sens. Patrick Leahy (D-Vt.) and Rand Paul (R-Ky.) would expand that judicial leeway to some non-drug related crimes.

"I think money is driving this debate to some extent but also honesty," Durbin said in an interview.  "After 30 years we ought to take a look at these laws. These aren't the 10 Commandments."  

Overcrowded prisons have been increasingly a strain on federal budgets, costing an estimated $60 billion per year.  Since the mandatory minimum law was implemented in 1986, the prison population has exploded -- from around 58,000 in the late 1980s to more than 217,000 in 2012, according to the Department of Justice and the Bureau of Prisons.

“People are starting to see the unfairness, people who have been kept in jail, sometimes 10, 20, 30, even 50 years for a non-violent crime,” Paul said in an interview. “I personally think if you made a mistake, a youthful mistake, that when you serve your time, and the time should be a reasonable time, that you should be able to get back into society.”

The timing of a reform bill is still uncertain, but Leahy, who chairs the Senate Judiciary Committee, indicated in a statement that a mark-up was in the near future.  "Doing nothing means cutting funding from law enforcement, victim services and crime prevention efforts -- doing nothing makes us less safe," he said.  "We will soon be marking up legislation to address this important issue."  Labrador said House Judiciary Chairman Bob Goodlatte (R-Va.) has agreed to have a hearing in the House on the issue this year....

It's not the first time this issue has brought the two sides together. The Fair Sentencing Act of 2010, that eliminated the sentencing disparity between crack and powder cocaine, was put together by Durbin and Alabama Republican Jeff Sessions as they worked out next to each other in the Senate gym. The bill eventually passed by unanimous consent.

I have grown more cynical and pessimistic about statutory sentencing reforms coming from Congress now that it has been almost a full year since Senators Leahy and Paul started pushing for mandatory minimum reform.  It would seem all political, social and economic forces are in line for major statutory sentencing reform, and yet we continue to hear lots of talk about reform and little tangible action in Congress.  Especially given that it took decades for crack reform talk to become the FSA, and given that the FSA was itself a pretty tepid and incomplete reform, I hope all this talk from Congress is not generating false optimism about significant statutory sentencing reforms coming from Congress.

That all said, I am much more optimistic that other federal sentencing players, especially the US Sentencing Commission and lower court judges, can and will be inspired by all the reform talk in Congress to take tangible action in courtrooms.  Indeed, I think the very important new proposal to cut federal drug sentences across the board (basics here, commentary here) only came to happen because that politically cautious body sensed members of Congress would not be likely to vocally resist a reduction of drug sentencing guidelines.

January 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, January 14, 2014

Two professorial perspectives on the USSC's proposal to reduce all federal drug sentences

USSCIn my view, last week brought one of the very biggest (and yet, so far, one of the least discussed) tangible developments in federal sentencing reform in the past few years.  Specifically, as reported here, the US Sentencing Commission voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all federal drug offenses.  I am pleased now here to share the insightful reactions to this important development coming from two insightful junior professors:  Professors Kevin Bennardo and Todd Haugh.

 Because Professor Haugh's comments are a bit shorter and more thematic, I will reprint his insights first:

First off, I agree wholeheartedly that this is a very important vote and a “really big deal.” But the reason I feel that way is not necessarily because it lowers penalties for drug trafficking offenders.  While I think the Commission is right to make the proposal and I certainly support it — drug penalties have been too harsh for too long — what’s more important to me than the specifics of the proposal is the willingness of the Commission to make it at all. Let me explain.

According to the Commission’s press release (the actual language of the proposed amendment is available, although it’s hard to find — see here), the proposal will lower the base offense levels in the drug table by two across the board.  That’s nothing to sneeze at because every two level increase equals about another 20% on the final sentence; at the higher sentencing levels, this is significant time.  Yet, with mandatory minimums and prosecutorial charging practices, the Commission believes the prison population will be reduced only by around 6,500 inmates over five years.  With approximately 100,000 federal inmates currently serving time for drug offenses, this reduction, although welcome, is as the Commission admits, “modest.”

But what isn't modest is the Commission’s increasing willingness to propose sentencing reform, i.e., sentencing reduction.  This drug amendment proposal is the most recent example, but there are others.  Last September, the Commission urged Congress to reduce mandatory minimums for drug offences, make the Fair Sentencing Act retroactive, and expand the safety valve.  Around the same time, the Commission held a symposium on economic crimes and appeared to be genuinely considering the ABA’s proposal to remake the fraud guideline, which would lessen the impact of the loss calculation.  And, a little over a year ago, the Commission suggested aligning the penalties for the receipt and possession of child pornography (a majority of judges call the penalty levels for receipt cases “excessive”).  What’s important about these proposals is that every time the Commission comes out in support of (or even hints at) a sentencing reduction, it runs the risk of creating a “shadow guideline” — a hypothetical, less harsh version of a given guideline that, regardless of whether it is ultimately adopted, defense attorneys will argue should sway the court in the post-Booker, variance-driven regime.  This is exactly the sort of thing your original post suggests, and savvy defense lawyers will do it.  The Commission’s concern over creating shadow guidelines (and over the related Congressional reaction) has probably scuttled a number of proposals over the years to reduce unfair and disparity-producing guidelines.  I am happy to see the Commission setting aside the concern of shadow guidelines and Congressional reaction and forging ahead to proactively improve the guidelines as a whole.  While I’m sure some will argue this proposal does too little or comes too late, in my eyes it’s an important and continuing step in the right direction, and it shows a pattern of real leadership.  So, I say go ahead and get excited — even if this amendment doesn't go through for some reason, it sure seems that there will be more positive reforms to come.

And now, here are Professor Kevin Bennardo's insights, which digs very effectively into the nuts and bolts of what the USSC's proposed amendment really does and means:

First, thanks to Doug Berman for the opportunity to share my thoughts on his forum. Second, I very much support the U.S. Sentencing Commission’s preliminary proposed amendment to reduce (most of) the base offense levels in the Drug Quantity Table by two levels. I agree with Doug’s assessment that this proposal is huge news.

However… the proposed amendment brings two hang-ups to my mind — one with the existing structure of the Drug Quantity Table and another with the mechanics of the proposed amendment:

(1) First, the proposed amendment continues to fundamentally bind the Drug Quantity Table to the mandatory minimum sentences set forth in 21 U.S.C. § 841. It simply (and laudably) knocks the levels down two pegs.  Under the proposed amendment, offenders in criminal history category I who distribute a drug quantity that triggers a five year mandatory minimum will receive a base offense level of 24, leading to a range of 51-63 months (the lowest range that encompasses the five year mandatory minimum) rather than the current range of 63-78 months under offense level 26.  Likewise, offenders facing a ten year mandatory minimum will start from a base offense level of 30, leading to a range of 97-121 months (the lowest range that encompasses the ten year mandatory minimum) rather than the current range of 121-151 month under offense level 32.

As I’ve written elsewhere, extrapolating the base offense levels in the Drug Quantity Table from the statutory mandatory minimums works unfairness for those offenders who are not actually subject to a statutory mandatory minimum sentence.  Especially after the Supreme Court’s ruling in Alleyne v. United States and Attorney General Holder’s subsequent directive to federal prosecutors to structure indictments in such a way so as to avoid the operation of statutory mandatory minimum sentences on certain nonviolent, low-level drug offenders, we’ll only see increasing numbers of defendants who are not subject to statutory mandatory minimum sentences even though the sentencing court may find by a preponderance of the evidence that the offender distributed a quantity of drugs that would have triggered a statutory mandatory minimum had it been charged in the indictment and proven beyond a reasonable doubt.  These offenders deserve to be sentenced under a Drug Quantity Table that is wholly uncoupled from the mandatory minimum sentences written into the federal drug statutes, particularly in the wake of the Commission’s recent recommendation to Congress to consider lowering statutory mandatory minimums.  By continuing to extrapolate the base offense levels in the Drug Quantity Table from the statutory mandatory minimums, the proposed amendment fails to address this unfairness.

(2) Second, the proposed amendment to the Drug Quantity Table isn’t truly an “all drugs minus two” revision (like I expected it would be when I first read the press release).  Under the proposed amendment, the lowest base offense level in the Drug Quantity Table remains at 6 and the highest base offense level remains at 38.  Thus, offenders who distribute the smallest and largest drug quantities will see absolutely no change in their guideline calculations under the proposed amendment.  They won’t receive any “minus two” treatment.

For example, an offender who distributes less than 250 grams of marijuana receives base offense level 6 under the current version of the Drug Quantity Table.  Under the proposed amendment, that offender would still receive a base offense level of 6.  (The difference is that under the amended version, all offenders who distribute up to one kilogram of marijuana fall within base offense level 6.)  If the effect is to otherwise shift all base offense levels down by two, why not carry through with the same result at the margins of the Drug Quantity Table?  Why not just retain the same drug quantities as the current Drug Quantity Table and shift the whole thing down by two levels so that the smallest quantities carry a base offense level of 4 and the largest quantities max out at level 36?

While the difference between base offense level 4 and 6 may not be significant to an offender in criminal history category I (although it might be if the offender has other upward offense level adjustments), the difference can be meaningful for an offender in more serious criminal history categories.  For example, at offense level 4, a criminal history category III offender is subject to a guidelines range of 0-6 months and falls in Zone A of the Sentencing Table.  But at offense level 6, the same criminal history category III offender is looking at a guidelines range of 2-8 months and falls in Zone B. For that offender, the difference between offense levels 4 and 6 is a difference of a guidelines sentence that requires no confinement and a guidelines sentence that requires at least two months of community confinement or home detention under section 5C1.1. (Similarly meaningful differences obtain for offenders in criminal history category VI, who get pushed out of Zone B and into Zone C with the jump from offense level 4 to 6.) If the rest of Drug Quantity Table is to be reduced by two levels, why not drop the smallest drug quantities down to offense level 4?

January 14, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, January 09, 2014

US Sentencing Commission suggests lowering drug guideline sentences across the board!

In a vote that may not be historic but is still very important and a sign of the times, the US Sentencing Commission earlier today voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all drug offenses.  This official press release effecively summarizes and contextualizes this proposed amendments and others that were voted upon today at the USSC's public meeting:

The United States Sentencing Commission voted today to publish proposed guideline amendments, including possible reductions to the sentencing guidelines levels for federal drug trafficking offenses.  Another proposed amendment addressed implementation of the Violence Against Women Reauthorization Act of 2013.

The bipartisan Commission voted to seek comment on a proposed amendment to lower by two levels the base offense levels in the Drug Quantity Table across drug types in guideline §2D1.1, which governs drug trafficking cases. Commission analysis indicates that such a change in the guidelines would result in a reduction of approximately 11 months for those drug trafficking offenders who would benefit, resulting in a reduction in the federal prison population of approximately 6,550 inmates by the fifth year after the change.

With this reduction, the sentencing guideline penalties for drug traffickers would remain consistent with pertinent drug trafficking statutes, including existing 5 and 10 year statutory mandatory minimum penalties, by structuring the Drug Quantity Table based on levels 24 and 30 (which correspond to a guideline range of 51 to 63 months and 97 to 121 months, respectively), rather than the existing levels of 26 and 32 (which correspond to 63 to 78 months and 121 to 151 months, respectively).

“The Commission’s proposal reflects its priority of reducing costs of incarceration and overcapacity of prisons, without endangering public safety,” said Judge Patti B. Saris, Chair of the Commission. A Commission study of offenders who received a reduced sentence pursuant to a similar two-level decrease in guideline levels for crack cocaine offenders in 2007 found no difference in recidivism rates for those offenders released early compared to those who served their full sentence.

“Like many in Congress and in the executive and judicial branches, the Commission is concerned about the growing crisis in federal prison populations and budgets, and believes it is appropriate at this time to carefully consider the sentences for drug traffickers, who make up about half of the federal prison population,” Saris said. “Our proposed approach is modest,” Saris said. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...

Consistent with its responsibility to respond to major legislation affecting federal crimes, the Commission voted to publish a proposed amendment responding to the Violence Against Women Reauthorization Act of 2013 (Pub. L. No. 113–4).... The Commission also asked for comment on whether the guidelines adequately address the environmental and other harms of drug production operations, in particular the cultivation of marijuana, and requested comments on issues related to the alien smuggling guideline and on resolving circuit court conflicts regarding the sentencing guidelines, among other matters.

The proposed amendments and issues for comment will be subject to a 60-day public comment period running through mid-March. A public hearing on the proposed amendments will be scheduled in Washington, D.C., on March 13, and a hearing concerning issues related to the reauthorization of the Violence Against Women Act will be held February 13.

For a whole bunch of reasons, this strikes me as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months. Indeed, this action by the USSC, though only now a proposal for comment, strikes me as the most important tangible federal sentencing development since the passage of the Fair Sentencing Act. Let me explain why:

1. This proposed amendment is essentially a statement by the USSC that it believes, in its expert opinion, the current guideline sentences for ALL drug offenses are ALL too harsh. Consequently, even before this amendment becomes official and gets even closer to becoming law, every defendant to be sentenced for ALL drug offenses ought to be arguing for a two-level reduction in the calculated guideline range (and/or a variance from the calculated range) based on the Commission's expert advice and opinion that the current guideline sentences for ALL drug offenses are ALL too harsh.

2. The usual critics of the current drug guidelines as way too harsh are sure to advise the USSC in the days ahead that this proposed amendment is a great idea (and, if they were shrewd, they might push for the amendment reduce sentences even more). Meanwhile, we will get to see if anyone will actively oppose this proposed amendments. In the past, DOJ could often be counted on to oppose any proposed pro-defendant guideline amendment. But these days, in the wake of AG Holder's recent speeches and work, I suspect DOJ will not actively oppose the amendment (and may even support it). If it turn out there is little or no opposition to this amendment, federal judges could and should feel even more confident now and in the near future to lower drug sentences when permitted in the exercise of their post-Booker discretion.

3. If (and when?) this guideline lowering amendment becomes official in November 2014, the US Sentencing Commission will have authority to decide to make it retroactive (as it did with all of recent prior crack amendments). Thus, not only could this amendment start lowering many federal drug sentences now and going foward, there is a chance it could end up lowering many long federal drug sentences already being served.

Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote.  But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.

January 9, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (11) | TrackBack

Wednesday, January 08, 2014

"Probability and Punishment"

The title of this post is the title of this notable new paper by Jacob Schuman now available via SSRN. Here is the abstract:

Imagine two defendants, A and B, who have each been convicted of drug trafficking. Defendant A was arrested with 1,000 grams of crack-cocaine.  Defendant B was arrested with only 100 grams of crack but also a large quantity of cash, which he more than likely, though not certainly, earned by selling 900 grams of crack shortly before his arrest.  Should A and B receive the same punishment?

Federal criminal law says that they should.  This Article will argue that they should not. The probability that A sold 1,000 grams is higher than the probability that B did, so B deserves the lighter sentence.

The justice system can never determine with absolute certainty that an accused defendant committed a particular crime.  To render judgment, therefore, the criminal law must estimate the probability that each defendant is guilty of the offense charged and then translate that probability into specific penal consequences.  The guilt stage of criminal proceedings — the criminal trial — uses what scholars have called a “threshold model” of translation. Under this model, the prosecution may convict a defendant by establishing that the likelihood that he committed the crime charged exceeds a certain “threshold” level of probability.  If it is “beyond a reasonable doubt” that the defendant did the deed, he will receive a guilty verdict.  Otherwise, he will walk free.  Neither outcome will reflect a precise measure of the odds of the defendant’s guilt. A “probabilistic model” of translation, by contrast, would vary the outcome of each trial depending on the probability that the defendant committed the crime of which he is accused.

This Article breaks new ground by demonstrating that the penalty stage of criminal proceedings — the sentencing hearing — also uses a “threshold model.” The United States Sentencing Guidelines instruct federal judges to make a series of factual findings that either add to or subtract from a recommended sentence for every case.  Each adjustment to the recommended sentence depends on whether a certain factual predicate is “more likely than not” to be true — just like at trial, this threshold level of probability fails to precisely measure the odds of the defendant’s culpability.  However, while scholars have offered several important justifications for the threshold model of conviction, these arguments do not hold up for the threshold model of sentencing.  Moreover, the two flaws identified with the threshold model of conviction — inefficiency and unfairness — are not only present at the penalty stage of the proceedings, but in fact are exacerbated by a few unique features of the law of sentencing.

The threshold model of sentencing poses a particular problem when it comes to determinations of drug quantity in the punishment of drug offenders.  Courts often rely on extrapolation and inference to make such determinations, and as a result, they frequently mete out lengthy sentences based on quantity estimations that carry a high risk of error. District courts and policymakers should mitigate the inefficiencies and injustices that result from these fact-findings by incorporating probability into drug quantity determinations at sentencing.

January 8, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Sunday, December 29, 2013

Latest USSC quarterly data show (thanks to AG Holder?) record number of judge-initiated below-range sentences

I am intrigued to see that, as reported in Table 4 with the Fourth Quarter FY13 Quarterly Sentencing data report posted here at the US Sentencing Commission's website, there was a notable (though still small) uptick in the number of below guideline sentences imposed by federal district judges during the most recent quarter (from July 2013 to September 2013). Specifically, after a full year in which below-guideline sentence were imposed each quarter in just around 18.5% of all federal cases, in the most recent quarter the rate of judge-initiated below-range sentences jumped to 19.1%.  This marks, I believe, the highest percentage of judge-initiated below-range sentences in any quarter on record.

As the title of this post hints, I am inclined to hypothesize that a few more judges were willing to impose below-guideline sentences in a few more federal cases in the wake of Attorney General Eric Holder's big early August speech to the ABA lamenting excessive use of incarceration in the United States. When the US Attorney General says "too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason," I surely hope federal judges are listening and thinking even harder about whether to follow harsh guidelines that tend to recommend pretty long prison sentences in most cases.

That all said, the latest new data continue to show the same basic story lines and relatively stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that somewhat more than 50% of all federal sentences are within the calculated guidelines range, and that below-guideline sentences are a result of a prosecutor's request (which occurs in well over 25% of all cases).

December 29, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, December 12, 2013

Killer bride in Montana takes a plea deal to second-degree murder just before jury gets case

3E0237FA0F4888A92E8D34325C05D590_292_292As reported in this new AP article, headlined "Woman in newlywed killing case agrees to plead guilty to second-degree murder," a high-profile federal homicide trial has now ended in a high-profile plea deal. Here are the details:

A federal judge accepted a guilty plea Thursday from a Montana newlywed after she reached a surprise plea agreement and said she pushed her husband from a cliff in Glacier National Park. The development came before a jury was set to begin considering the case against 22-year-old Jordan Graham.

In exchange for the plea to second-degree murder, prosecutors agreed to drop a first-degree murder charge and a count of making a false statement to authorities. First-degree murder means a crime is premeditated.

Graham could face a maximum sentence of life in prison on March 27.

In accepting the plea, District Judge Donald Molloy told Graham to recount exactly what happened the night of July 7 when her husband Cody Johnson, 25, fell to his death in the park.

Graham said she told Johnson that she wasn't happy and wasn't feeling like she should after getting married. She said they argued and at one point he grabbed her by the arm. She said she brushed his hand away and pushed him, with one hand on his arm and one on his back. "I wasn't thinking about where we were ... I just pushed," she told the judge. She said she then drove back to Kalispell without calling for help because she was so afraid she did not know what to do.

Earlier in the day, defense attorneys wrapped up their case without testimony from Graham. Instead, they showed the jurors pictures and videos of Graham smiling as she had her hair done and tried on her borrowed wedding dress, then videos of the June 29 wedding and the couple's first dance.

Those images attempted to chip away at the prosecution's image of Graham as a cold, dispassionate woman who didn't want to marry Johnson, and their contention that eight days later she led him to a dangerous precipice in the Montana park and deliberately pushed him to his death....

Both the prosecution and defense rested their cases Thursday after three and a-half days of testimony.  The plea agreement was reached before closing arguments took place.

As for the statutory sentencing basics, here is the sentencing provision of 18 USC 1111, the federal murder statute: "Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life."  The federal sentencing guideline for second degree murder, 2A1.2, provides a base offense level of 38 and recommends an upward departure if "the defendant's conduct was exceptionally heinous, cruel, brutal, or degrading to the victim." Also, I think there could be (and likely will be?) some sentencing debate over whether an adjustment up for a vulnerable victim or an adjustment down for acceptance of responsibility should be applied.

If we assume the guideline level of 38 sticks (and she has no serious criminal history), the USSG Sentencing Table recommends a prison sentence of 235-293 months (just under 20 to 25 years). I suspect the defense team will likely argue for a downward variance from his range, while perhaps the prosecutors will ask for something toward the top of the range. Thus, I would right now put the (way-too-early) over/under betting line for here federal sentence at 20 years' imprisonment.

Previous related posts:

December 12, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (16) | TrackBack

Saturday, November 23, 2013

Another notable white-collar defendant gets another below-guideline federal sentence

This New York Times article, headlined "Ex-Credit Suisse Executive Sentenced in Mortgage Bond Case," reports on a notable federal sentenced handed down yesterday:

A former top executive at the Credit Suisse Group was sentenced to two and a half years in prison on Friday for inflating the value of mortgage bonds as the housing market collapsed. The prison term makes the executive, Kareem Serageldin, one of the most senior Wall Street officials to serve time for criminal conduct during the financial crisis.

Wearing a dark suit and blue tie, Mr. Serageldin remained stoic as Judge Alvin K. Hellerstein of the United States District Court in Manhattan handed down the sentence, which was less than the roughly five-year sentence called for by nonbinding sentencing guidelines. Judge Hellerstein showed mercy on Mr. Serageldin in part because of what he said was a toxic culture at Credit Suisse and its rivals.

“He was in a place where there was a climate for him to do what he did,” the judge said. “It was a small piece of an overall evil climate inside that bank and many other banks.”

A spokesman for Credit Suisse disagreed with the judge’s remarks, noting that when regulators decided not to charge the bank in connection with Mr. Serageldin’s actions, they highlighted the isolated nature of the wrongdoing, the bank’s immediate self-reporting to the government and the prompt correction of its results.

Mr. Serageldin, 40, led a group at Credit Suisse that traded in mortgage-backed securities. As the housing market soared, his group made hundreds of millions of dollars for the bank by pooling mortgage assets, slicing them up and selling the pieces to investors. Many of those were subprime loans that went to shaky borrowers, however, and banks found themselves holding billions of dollars in sour mortgages when the market collapsed.

Federal authorities began their investigation into Credit Suisse in 2008 after the bank disclosed that Mr. Serageldin’s team had mismarked its mortgage portfolio. The bank suspended the team and cooperated with authorities. Two other traders in that group, David Higgs and Salmaan Siddiqui, were also charged alongside Mr. Serageldin. They all pleaded guilty; Mr. Higgs and Mr. Siddiqui have yet to be sentenced....

“This is the worst day of my life,” Mr. Serageldin told the judge. “I am terribly sorry for what I have done.”

In an unusual moment during the hearing, Judge Hellerstein allowed Mr. Serageldin’s mother to speak about her son. Holding back tears, she told the judge her son had always worked hard to make the family proud. “Please see him in the context of his whole life history,” she told the judge, who commiserated with Ms. Serageldin by telling her that he, too, was the child of immigrants. “Whatever sentence he serves, I will serve.”

The judge asked Mr. Serageldin’s lawyer to explain his client’s misconduct. “This is a deepening mystery in my work,” the judge said. “Why do so many good people do bad things?” Sean Casey, a lawyer at Kobre & Kim, said that Mr. Serageldin was under great pressure during the credit crisis and made a big mistake when confronted with failure for the first time.

Judge Hellerstein said that his sentence was necessary to deter misconduct on Wall Street. “Each person has to look within himself and ask himself what is right, what is wrong,” the judge said. “Even in the worst of times, what is right cannot be sacrificed.”

November 23, 2013 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (3) | TrackBack

Tuesday, November 19, 2013

Latest USSC publication highlights remarkable "disparities"(?) in federal FIP sentences

I am pleased to see that the US Sentencing Commission now has up on its website another terrific new data document in its series of reader-friendly "Quick Facts" publications.  (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")

As I have said before, I think this series is a very valuable new innovation coming from the USSC, and I have already learned a lot and benefited greatly from these publications.  This latest document, which "presents data on offenses under 18 U.S.C. § 922(g), commonly called 'felon in possession' cases," includes these notable data details:

In fiscal year 2012, 5,768 offenders were convicted of violating 18 U.S.C. § 922(g)....

One-quarter (25.2%) of offenders convicted under section 922(g) were assigned to the highest criminal history category (Category VI). The proportion of these offenders in other Criminal History Categories was as follows: 11.7% of these offenders were in Category I; 9.3% were in Category II; 21.1% were in Category III; 18.9% were in Category IV; and 13.8% were in Category V.

10.3% were sentenced under the Armed Career Criminal Act (ACCA) (18 U.S.C.§ 924(e))...

The average sentence length for all section 922(g) offenders was 75 months; however, one-quarter of these offenders had an average sentence of 24 months or less while one-quarter had an average sentence of 96 months or more.

The average sentence length for offenders convicted of violating only section 922(g) and who were sentenced under ACCA was 180 months.

The average sentence length for offenders convicted of violating only section 922(g) but who were not sentenced under ACCA was 46 months.

The title of this post has the term "disparities" in quotes followed by a question mark because these basic sentencing data about a pretty basic federal crime could be interpreted in many disparate ways. Given that all the offenders sentenced for FIP likely were engaged in pretty similar conduct (simple possession of a firearm) and all of them, by definition, had to have a serious criminal record in order to be subject to federal prosecution, one might see lots of unwarranted disparity among this offender group given the extraordinary outcome variations documented here -- in FY2012, over 10% of FIP offenders are getting sent away for an average of 15 years, but another 25% are going away for only 8 years, while another 25% are going away for only 2 years.

Then again, given the apparently varied criminal histories of the FIP offenders, the sentencing variation here surely reflects various (reasoned and reasonable?) judicial assessments of different levels of recidivism risk for different FIP offenders.  I certainly hope that the those being sentenced to decades behind bars for gun possession are generally those with very long rap sheets, and that those getting sent away only for a couple years are those with much more limited criminal histories.

Finally, in addition to noting the profound significance that past crimes clearly have on current sentencing in FIP cases, I must note that it is these past crimes that itself serves to convert the behavior here in to a federal crime.  Indeed, if one takes the Second Amendment very seriously (as I do), the actual "offense behavior" in these cases might often be subject to significant protection as the exercise of a fundamental constitutional right unless and until the person has a disqualifying criminal past.  Proof yet again that the past, at least when it comes to criminal sentencing and constitutional rights, is often ever-present.

November 19, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (3) | TrackBack

Wednesday, November 13, 2013

Is sentence disparity reduced if mass murderer Whitey Bulger and drug dealer Sam Hurd get the same LWOP sentence?

The question in the title of this post is prompted by the news of two seemingly very distinct federal sentencings taking place today in which it seems the federal sentencing guidelines are calling for the exact same LWOP sentence. 

Regular readers are already familiar with the case involving Whitey Bulger, whose sentencing is taking place today in federal Court in Boston.  This new USA Today article, headlined "Victim's son: Mobster Whitey Bulger is 'Satan'," highlights just the latest developments in a case in which I sincerely wonder why there is not more of an effort by pro-death-penalty advocates to have an even tougher punishment than LWOP in the mix.

Somewhat less high profile, except perhaps for hard-core football fans, is the sentencing of former NFL receiver Sam Hurd.  This article, headlined "Former NFL player Sam Hurd hopes to avoid life sentence at hearing," provides some background starting this way:

This afternoon at the Federal courthouse in Dallas, U.S. District court judge Jorge Solis is scheduled to begin the sentencing hearing for former Cowboys and Bears receiver Sam Hurd, who pleaded guilty to a single drug trafficking charge in April. Hurd's attorneys will be allowed to present witnesses and evidence to contest the individual allegations against him. At the end of the hearing Solis will decide whether to take the recommendation of the U.S. Probation and Pretrial Services Department of life in prison without parole or give Hurd a lighter sentence. The only certainty is that Hurd will be going to prison.

Hurd was arrested on Dec. 14, 2011 and indicted on Jan. 4, 2012. For the first 19 months, life in prison was not even in the discussion. Five to 20 years was the sentencing range, with precedent and the informed opinions of more objective onlookers and academics backing up that estimate. Since the life sentence recommendation was made in late July, one comment repeated by sources across the spectrum of partiality has been some version of this reminder: You realize life in prison in the federal system means the next time he comes out of prison it'll be in a coffin.

Hurd, who has been housed in the federal detention center in Seagoville, about a 30-minute drive from the Dallas court building, did not respond to an email from SI Wednesday morning. He may have already been relocated to downtown Dallas and unable to access his prison-controlled email account. He called last Friday night and repeated again that he is "ready to be sentenced for what I did, not this other mess. Our system should not work like this.

I have to assume that Hurd is facing a recommended LWOP sentence because of the quantity of drugs being ascribed to him and a guideline sentencing structure that provides that drugs dealers will often be facing the same guideline sentence as mass murderers.

Hurd is, of course, very fortunate that the federal sentencing guidelines are no longer mandatory, and I think it is unlikely he will get an LWOP term today. But this coincidence of these two very different criminals facing the exact same federal guideline sentence provides a high-profile example of how the guidelines can themselves create disparity and especially revelas how misguided it can often be to assume imposition of within-guideline sentences reduce disparity.

UPDATE On Wednesday afternoon, as reported here, Sam Hurd received a 15-year federal prison sentence; on Thursday morning, as reported here, Whitey Bulger received two life terms plus 5 years in the federal pen.

November 13, 2013 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack

Thursday, November 07, 2013

"Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing"

The title of this post is the title of this notable new paper by Crystal Yang now available via SSRN. Here is the abstract:

The Federal Sentencing Guidelines were created to reduce unwarranted sentencing disparities among similar defendants.  This paper explores the impact of increased judicial discretion on racial disparities in sentencing after the Guidelines were struck down in United States v. Booker (2005).  Using data on the universe of federal defendants, I find that black defendants are sentenced to almost two months more in prison compared to their white counterparts after Booker, a 4% increase in average sentence length.  To identify the sources of racial disparities, I construct a dataset linking judges to over 400,000 defendants.  Exploiting the random assignment of cases to judges, I find that racial disparities are greater among judges appointed after Booker, suggesting acculturation to the Guidelines by judges with experience sentencing under mandatory regime. Prosecutors also respond to increased judicial discretion by charging black defendants with longer mandatory minimums.

I am always interested in sophisticated analyses of the post-Booker sentencing system, so I am looking forward to finding time to review this article closely. But, as with lots of "disparity" sentencing scholarship, I worry that this article is among those spending lots of time worrying about and trying to figure out whose sentences may be longer after Booker rather than worrying about and trying to figure out if all sentence remain way too long in the federal sentencing system.

November 7, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tuesday, October 29, 2013

Do nationwide reforms now call for federal judges to sentence below the guidelines in all marijuana cases?

The question in the title of this post is one that I have been thinking about for quite some time, but it has now taking on some real-world salience in the wake of a couple hearings and sentencing decisions by a federal district judge in Baltimore.  Two recent reports from the Baltimore Sun, headlined "Federal judge weighs shift on marijuana sentences," and U.S. judge says government view on marijuana raises 'equal justice' issue" (available here and here, respectively), suggests that at least one federal district judge believes the answer to the question in the title of this post is yes. Here are details drawn from both press reports:

A federal judge said Friday he would consider lighter-than-normal sentences for members of a major suburban marijuana smuggling organization — the latest fallout of the drug's legalization in several U.S. states.

U.S. District Judge James K. Bredar noted that federal authorities announced this summer they would not pursue criminal cases against dispensaries and others legally handling marijuana in states where the drug has been legalized.

Bredar, who called the hearing to discuss the issue, said it might be more appropriate to compare the defendants in the Maryland marijuana case to smugglers of improperly taxed cigarettes rather than treat them as hardened drug traffickers. "It's a serious thing," Bredar said of the group's operation, "but it's not the same as dealing heroin."...

Friday's hearing involved defendants convicted of running a smuggling operation that imported large quantities of marijuana to Howard and Anne Arundel counties from California and New Jersey and laundering the proceeds through an eBay business located in a Jessup warehouse. Twenty-two of the 23 people charged in the case have been convicted; charges against one were dismissed.

Earlier this month, Bredar canceled all of the scheduled sentencings in the case and announced his plan to hold a hearing on changes in Justice Department policy that allow marijuana handlers such as dispensaries and cultivation centers to operate openly in states where marijuana is legal....

At issue in the Maryland case, Bredar said, is whether that shift means the government has decided the drug is less serious now than when federal sentencing guidelines were formulated. "Has the federal government changed its enforcement policy?" Bredar asked.

Assistant U.S. Attorney Andrea L. Smith said the topic was an appropriate one to discuss, but argued that marijuana remained a serious drug and noted that the case involved guns and violence. She suggested it might be more appropriate to compare marijuana dealing to trafficking in illegally obtained prescription pain pills rather than to cigarette smuggling....

And on a sliding scale of regulated substances, Bredar said, he thought marijuana had moved away from hard drugs and toward tobacco.

Sentences in federal cases are based on guidelines that take into account drug quantities and other circumstances in advising judges on the appropriate prison time. Those rules already recognize that dealing heroin is much more serious than dealing marijuana.

For example, all else being equal, a defendant convicted of dealing between one and three kilograms of heroin would face between nine and 11 years in prison, as would someone who sold between 1,000 and 3,000 kilograms of marijuana. At the same time, a cigarette trafficker would have to evade $100 million in taxes to face that length of prison sentence — a vastly greater weight in tobacco.

The guidelines are advisory and judges can take other factors into account when deciding a sentence. Bredar said he would take particular note of two of those factors when sentencing the defendants: He wants to make sure that defendants around the country are being treated equally and that the sentences reflect the seriousness of the offense....

A federal judge in Maryland handed down lighter prison sentences Monday to defendants in a huge marijuana distribution case, saying that such offenses are "not regarded with the same seriousness" as they were just a few decades ago.

U.S. District Judge James K. Bredar said the federal government's response to marijuana legalization in some states — notably the decision not to pursue criminal cases against dispensaries and others handling the drug in accordance with those states' laws — raises concerns of "equal justice."

In handing down a nearly five-year sentence, Bredar said he felt Scott Russell Segal had committed a significant crime for his role moving hundreds of kilograms of marijuana and laundering the proceeds.

But the judge used his discretion to ignore federal guidelines, which equate marijuana with harder drugs like heroin and called for Segal to receive eight to 11 years in prison. A second defendant also got a shorter sentence than called for in the guidelines. "It's indisputable that the offense is not regarded with the same seriousness it was 20 or 30 years ago when the sentencing guidelines … which are still in use, were promulgated," Bredar said.

Cross-posted at Marijuana Law, Policy and Reform.

October 29, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, October 27, 2013

Federal sentencing in Kansas to focus on "market value of deer" illegally killed

As reported in this unavoidably amusing article, headlined "Value of deer key in Kansas hunting camp sentencing," a federal district judge is going to be required to do a market analysis of illegally hunted deer in order to properly calculate the federal guideline range of a couple of hunting scoundrels. Here are the details:

For years, hunters trekked to Camp Lone Star near Coldwater where prosecutors say they paid thousands of dollars to illegally kill deer in Kansas. On Monday, what is believed to be one of the largest criminal investigations involving the illegal taking of deer draws to a close with the re-sentencing of two Texas brothers who ran the operation from 2005 to 2008.

James Bobby Butler Jr., the owner and operator of the hunting camp, and his brother, Marlin Jackson Butler, who worked as a guide, admitted in 2011 to violating the Lacey Act, a federal law that prohibits the interstate transport of any wildlife taken in violation of state regulations. The brothers, both from Martinsville, Texas, pleaded guilty to felony charges of conspiracy to violate the Lacey Act and violation of the Lacey Act....

The 10th Circuit Court of Appeals, in its decision last year, said the district court made a mistake in 2011 in calculating sentences based on the full price of a guided hunt, rather than the actual retail value of the animals.

U.S. District Judge Monti Belot is expected to hear testimony at Monday’s hearing about the market value of deer as well as the conduct of the Butler brothers in other uncharged poaching incidents to come up with new sentences. He must also rule on the appropriateness of a hunting and guiding ban for James Butler.

John Brooks, the agent from the U.S. Fish and Wildlife Service who led the investigation, is expected to take the stand for the government. The defense plans to call several people who hunted at the camp. Both sides are also bringing in expert witnesses to testify as to the market value of antlers and other deer parts....

James Butler was initially sentenced by the late U.S. District Judge Wesley Brown to 41 months in prison and ordered to pay a $25,000 fine and $25,000 in restitution. Marlin Butler was initially sentenced to 27 months in prison and ordered to pay a $10,000 fine and $10,000 in restitution. Those initial sentences were thrown out by the appeals court when it sent the case back for re-sentencing.

October 27, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, October 09, 2013

District Judge Graham gets in a final word on child porn sentencing despite Sixth Circuit reversals

I am about to head off line for the bulk of the day in order to head down to the Queen City in order to watch the full en banc Sixth Circuit consider crack sentencing modification rules in Blewett. (I hope late tonight to report on what I see in the argument, perhaps with a prediction as to the outcome.)

For my last word before I go to watch the Sixth Circuit in action, I am pleased to post a recent opinion by US District Judge James Graham that provides its own kind of last word about the Sixth Circuit's recent sentencing work in a child pornography downloading case that the Sixth Circuit took out of Judge Graham's hands.  The opinion in US v. Childs (which can be downloaded below) is relatively brief, and it starts and winds down this way:

This is a disturbing case. Defendant is charged with one count of possession of child pornography. I am called upon to decide whether to accept a plea agreement which requires me to impose a sentence which is roughly only one sixth of the lowest sentence recommended by the United States Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”). This is disturbing not because I disagree with the sentence, but because I am convinced that under the law of the Sixth Circuit announced in United States v. Bistline, 665 F.3d 758, 761-64 (6th Cir. 2012)(“Bistline I”), I would not have been free to select such a sentence without the government’s agreement....
The Sixth Circuit's decision in Bistline I blurs the distinction between mandatory and advisory by requiring more deference to congressionally created guidelines than that accorded to Sentencing Commission-created guidelines.  Just what implications this might have under Apprendi was not discussed by the Sixth Circuit.

There have been some very important developments since the Sixth Circuit's decision in Bistline I. In its Report to Congress: Federal Child Pornography Offenses (Dec. 2012), and_ Public_ Affairs/ Congressional_ Testimony_ and_ Reports/ Sex_ Offense_ Topics/ 201212_ Federal_ Child_ Pornography_ Offenses/ (visited October 1, 2013), the Sentencing Commission publicly declared that the existing guidelines for child pornography offenses were flawed and in need of repair.  In a letter to Judge Patti B. Saris, Chair of the Commission, dated March 5, 2013, Anne Gannon, National Coordinator for Child Exploitation Prevention and Interdiction, responded to the Commission’s report on behalf of the Department of Justice.  See Letter from Anne Gannon, Nat’l Coordinator for Child Exploitation Prevention and Interdiction, Office of the Deputy Attorney General, U.S. Dep’t of Justice, to Honorable Patti B. Saris, Chair, U.S. Sentencing Comm’n (Mar. 5, 2013), available at pdf (visited Sept. 30, 2013). The Department expressed its agreement with many of the Commission’s conclusions, noting that the report “reflects a significant amount of detailed research and thoughtful analysis" and thanking the Commission for "undertaking the important task of laying the foundation for reforming sentencing practices involving non-production child pornography offenses." Id. at 1.

Nevertheless, on June 27, 2013, four months after the Commission’s report, the Sixth Circuit filed its opinion in United States v. Bistline, 720 F.3d 631 (6th Cir. 2013)(“Bistline II”) reaffirming it's holding in Bistline I, with no mention whatsoever of the Commission’s findings or the extent of the Department of Justice's concurrence.  As a judge who has regularly sat on the Sixth Circuit Court of Appeals by designation for more than two decades, I find this inexplicable.  Many of the Commission’s criticisms of the child pornography guidelines, including criticisms which the Justice Department concurred in, are identical to the ones I expressed in my sentencing colloquy in Mr. Bistline’s case.  The Sentencing Commission’s criticism of the crack cocaine guidelines was cited as a reason for diminished deference for those guidelines in Kimbrough, and that part of the Kimbrough decision was cited by the Sixth Circuit in Bistline I to explain why the Supreme Court decided that the crack cocaine guidelines were entitled to less deference. See Bistline I, 665 F.3d at 763. In light of the fact that, in the interim, the Commission had spoken on the child pornography guidelines, why would the court not revisit the applicability of Kimbrough when it decided Bistline II? It seems clear to me that under Kimbrough, the child pornography guidelines should be accorded less, not more, deference than others.

It is a tragic irony that sentencing judges in the Sixth Circuit are required to give enhanced deference to guidelines which the independent Commission, relied upon so heavily by the Supreme Court in upholding the Guidelines, has now declared flawed and in need of reform. It is even more tragic that offenders in this circuit will have to rely on prosecutorial discretion, not judicial discretion, in order to receive a just and fair sentence in these cases.

Download Childs Sentencing Opinion and Order

October 9, 2013 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, October 08, 2013

"Native American Sentencing Disparity and the Case of Dana Deegan"

The title of this post is the title of this notable event taking place next week at the University of North Dakota School of Law.  Long-time readers may vaguely recall this 2010 post about the Eighth Circuit panel's split ruling affirming the defendant's within-guideline sentence in US v. Deegan, No. 08-2299 (8th Cir. May 25, 2010) (available here).  I called the Deegan case remarkable in part because of the criminal offense (second-degree murder of a newborn due to neglect), in part because of the offender (the newborn's mother, a Native American who has suffered a long history of physical and sexual abuse), and in part because of a must-read 50+ page dissent by Judge Myron Bright. 

I am very pleased that the (under-explored) sentencing issues spotlighted by one case and one dissent has now prompted a full panel discussion.  And I am very sad that I am unable to skip out on all my classes to head out to Grand Forks for this event; the topics and speakers looks like it would be worth the trip:

Schedule of Speakers:

Overview of the Disparity Problem and its Origins

  • BJ Jones, Director, Tribal Judicial Institute & Chief Justice of the Turtle Mountain Tribal Court of Appeals
  • Chris Ironroad, Associate Attorney at Sonosky, Chambers, Sachse, Endreson & Perry, LLP

Impact of Disparity on Native Americans - The Case of Dana Deegan

  • Judge Myron H. Bright, United States Court of Appeals for the Eighth Circuit
  • Judge David E. Ackerson, St. Louis County, Minnesota
  • Sarah Deer, Assistant Professor of Law, William Mitchell College of Law
  • Marmie Jotter, sister of Dana Deegan and licensed psychotherapist

How the Guidelines Unfairly Treat Domestic Violence Victims

  • Radmilla Cody - Ms. Navajo Nation 1997-98 and recording artist

October 8, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Monday, September 30, 2013

Advice for the US Sentencing Commission from former USDJ Nancy Gertner

Nancy-gertnerI am genuinely unsure if the US Sentencing Commission gets to keep working if we end up having a federal government shut-down this week.  But I am sure that the USSC starts an official new fiscal year as of tomorrow morning and that any government shut-down is not going to keep federal defendants from being sentenced and that the USSC will be up-and-running in some capacity both sooner and later.  For those reasons, I am pleased right now to be able to post these comments sent my way by former federal district judge (and now Harvard law professor) Nancy Gertner about what the USSC ought to be doing as FY 2014 in the federal sentencing system gets underway:

At a time when the “common law of sentencing,” is being shaped in federal district courts, why does the Sentencing Commission only post Circuit Court decisions on its web site?  In 2012, sentences that had been appealed on the grounds of unreasonableness were affirmed 95 percent of the time.  And that rate has remained steady on the national level: In 2011, the affirmance rate was roughly 94 percent; in 2010 it was approximately 96 percent; and in 2009, 97 percent affirmances.  In my circuit, the First Circuit, not a single sentence was deemed unreasonable on appeal in 2011 or 2012, and only a handful of cases qualified in the immediately preceding years. In effect, as with other areas of law where the standards of review are forgiving (think evidentiary appeals on forensic issues which are reviewed for “abuse of discretion” and rarely overturned), the appellate courts are not defining substantive sentencing standards, and imposing only minimal procedural ones.

Clearly most of the meaningful sentencing developments -- the substantive sentencing standards, the guideline analysis and trenchant critique -- are happening at the district court level in the decisions of judges like John Gleeson and Jack Weinstein (S.D.N.Y.), Mark Bennett (N.D. Iowa), Ellen Huvelle (D.C.), Paul Friedman (D.C.) and Lynn Adelman (E.D. Wisconsin). While not all judges take the time to write formal sentencing opinions, those that do should have their work circulated by our “expert” Commission rather than being ignored.

If the Commission is interested in minimizing disparity in sentencing in a post-Booker world (which should be one of its goals -- hardly the only one), what better way than to make certain that the opinions of district court judges are communicated more broadly to the federal bench?  When these judges offer a reasoned analysis of the Guidelines or an alternative way of analyzing the cases, why not ensure that other judges see their work and decide whether to follow it?  Other judges can look at their reasoning– not as binding precedent, but as a template for the cases they see, e.g. here’s one approach to firearms cases, non violent drug offenders, white collar cases, etc.  If a common law of sentencing is ever to evolve -- supplementing (or in some cases supplanting) the Guidelines -- why not assist in its development? In a common law system, decisional law establishes standards. Uniformity is not enforced from above -- as in civil code countries -- but evolves from reasoned judicial decisions.  In effect, with advisory Guidelines, we have a hybrid system -- Guidelines and decisional law.

To look at the Commission web site, there is only one orthodoxy -- the Guidelines, and Appellate Court decisions that rarely say much of anything.  In fact, the message conveyed by the web site is that the Commission is not interested in uniformity as a general matter, just one kind of uniformity -- the uniform enforcement of its flawed product, the U.S. Sentencing Guidelines.  Teach the Guidelines.  Describe appellate court decisions affirming whatever the district courts do without meaningful analysis.  Ignore the fine work of the judges trying to create meaningful standards where it counts the most, in the sentencing of individuals.

September 30, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, September 24, 2013

Through the Guideline looking glass, where a prior misdemeanor is really an "aggravated felony"

HumptyAn oft-quoted passage from the famous Lewis Carroll novel Through the Looking-Glass, and What Alice Found There came to mind as I was reading a recent Fifth Circuit's sentencing ruling.  Here is the passage I have in mind:

"When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master — that's all."

This first paragraph from the unanimous panel ruling in United States v. Ramirez, No. 13-10473 (5th Cir. Sept. 23, 2013) (available here), should make plain why this literary reference seems apt:

Efrain Hernandez Ramirez pled guilty to one count of illegal reentry following removal and at his sentencing, the district court applied an eight-level enhancement based on a prior conviction for an aggravated felony. The aggravated felony in question was a New York state misdemeanor conviction for third-degree sexual abuse of a fifteen-year-old girl. Ramirez appeals, arguing that his misdemeanor conviction cannot be an aggravated felony. For the following reasons, we AFFIRM.

September 24, 2013 in Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (7) | TrackBack

Wednesday, September 18, 2013

US Attorney defends fraud guidelines while others urge reform in USSC event

Today notable events in the federal sentencing reform arena were not confined only to today's U.S. Senate Judiciary Committee hearing on federal mandatory minimums (discussed here and here).  Also starting today was a two-day event in NYC in which the U.S. Sentencing Commission is discussing potential reform to the federal fraud guidelines.  This Reuters report, headlined "U.S. prosecutor cautions against white-collar sentencing revamp," provides a few notable highlights from the events in NYC:

The U.S. Justice Department opposes a wholesale revamping of white-collar criminal sentences that defense lawyers and some judges have urged, a top federal prosecutor said on Wednesday.

But Melinda Haag, the U.S. attorney in San Francisco, said the department was open to limited changes in white-collar sentencing that could reduce sentences in some fraud cases. The comments came as the U.S. Sentencing Commission is weighing revisions to advisory sentencing guidelines used by judges for securities, healthcare, mortgage and other fraud offenses.

Defense lawyers, the American Bar Association, some judges and others have criticized the guidelines, saying they emphasize financial losses caused by crime over all other factors, sometimes resulting in sentences that are too severe.

Haag, speaking at a symposium on white-collar sentencing in New York, said the Justice Department believes the current guidelines "result in tough but fair sentences in the vast majority of the cases." But she suggested that the department may be open to some changes, saying certain categories of cases, such as securities cases involving frauds on the market, warrant "careful study" by the commission. "Despite our questions and concerns, however, we do agree that in some cases, loss may overstate the seriousness of the offense," Haag said.

A growing number of judges have imposed terms less than prescribed by the guidelines, which became advisory rather than mandatory following a U.S. Supreme Court decision in 2005.

U.S. District Judge Loretta Preska, sitting on a panel with Haag, cited the case of Joseph Collins, a former partner at the law firm Mayer Brown, who was convicted for his role in a fraud at commodities broker Refco Inc. With losses calculated at $2.4 billion, Preska said under the guidelines Collins faced life in prison. She instead sentenced him in July to a year in prison, citing his community service and the fact he didn't financially benefit from the scheme. "This was absurd, absolutely absurd," she said.

Haag said the Justice Department recognized there "may be issues in some high-loss cases." But she said the department didn't believe a wholesale change was needed to the fraud sentencing guidelines or the loss table used to calculate sentences. She said it was a relatively small number of cases that had caused judicial concern. Citing commission statistics, she said 54 percent of economic crime cases involve less than $120,000 in losses and 83 percent involve less than $1 million.

Haag also argued that in some big cases involving investment fraud like Ponzi schemes, judges "don't seem to hesitate in imposing lengthy prison terms, noting the devastation these fraud schemes wreak on other people and the greed that motivated most of the defendants before them."...

In the last 18 months, federal prosecutors have handled investment fraud cases involving 800 defendants and more than $20 billion, she said. For the FBI, investment fraud is now 60 percent of its white-collar case load, she said.

Nonetheless, she said "certain categories of cases warrant careful study by the commission and potentially narrowly tailored amendments" to the fraud sentencing guidelines. Among the suggestions she gave would be for the Sentencing Commission to review how the guidelines treat loss in certain securities fraud cases where a drop in stock value by a few dollars per share can turn into a billion dollar loss.

September 18, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, September 13, 2013

Corporate official gets above-guideline sentence for conspiracy to hide safety violations

A helpful reader alerted me to this federal sentencing story from West Virginia which provides a useful reminder that federal judges sometimes use their increased post-Booker sentencing discretion to impose sentences above recommended guideline ranges (and may do so even for a defendant who has pleaded guilty and cooperating with authorities).  Here are the notable particulars from a lengthy article about a notable white-collar sentencing that followed a high-profile workplace disaster:

A former longtime Massey Energy official will spend 3 1/2 years in prison for his admitted role in a decade-long conspiracy to hide safety violations from federal safety inspectors. David C. Hughart, 54, of Crab Orchard, was sentenced Tuesday afternoon to 42 months in jail and three years of supervised release after he pleaded guilty to two federal charges as part of an ongoing federal probe of Massey's safety practices.

U.S. District Judge Irene Berger ordered Hughart to serve a full year more than the high end of the 24- to 30-month recommended under advisory federal sentencing guidelines. The judge said the stiffer sentence was needed to account for the safety risks Hughart's crimes created and to serve as a warning to other mining officials not to put production before safety. "This sentence will promote respect for the law," Berger said.

The Hughart sentencing is another step forward as U.S. Attorney Booth Goodwin and his top assistant, Steve Ruby, continue what is likely the largest criminal investigation of a coal-mine disaster in modern times. The probe started with the deaths of 29 miners on April 5, 2010, in an explosion at Massey's Upper Big Branch Mine in Raleigh County, and has so far prompted four convictions and expanded well beyond Upper Big Branch....

Hughart is cooperating with prosecutors, having pleaded guilty to one felony count of conspiracy to defraud the government by thwarting U.S. Mine Safety and Health Administration inspections and one misdemeanor count of conspiracy to violate MSHA standards.

During a plea hearing in February, Hughart had implicated former Massey CEO Don Blankenship in the conspiracy, and Hughart's family has said Hughart is being wrongly scapegoated while Blankenship and other top Massey executives have faced no criminal charges. "He was a slave to this industry, and Don Blankenship will never see the inside of a courtroom," Hughart's son, Jonathan Hughart, told reporters after Tuesday's sentencing hearing.

Through his lawyer, Blankenship has denied any wrongdoing. And on his blog, Blankenship has said Hughart lied about him and was fired from Massey for drug use and stealing from the company.

Prosecutors have said that former executives and board members of Massey "may be, or may become" targets in the ongoing federal criminal investigation....

Earlier Tuesday, Hughart's $10,000 personal recognizance bond was revoked by U.S. Magistrate Judge R. Clarke VanDervort after Hughart was arrested on Aug. 30 on charges of possession of painkillers and anti-anxiety medication without a valid prescription. Hughart's bond required him to comply with all local, state and federal laws....

While Hughart hasn't been convicted of the drug charges, the arrest increased his recommended sentence under federal advisory guidelines by nine months. Hughart's lawyer, Michael R. Whitt, had urged Berger to issue a lighter sentence, arguing that Hughart's crimes could not be linked to any mining injury -- let alone to the Upper Big Branch Disaster -- and that his client was caught up in the "corporate culture" at Massey.

Whitt told Berger that Hughart's life has been ruined, with him going from an affluent lifestyle and a six-figure mine official salary to losing his home and becoming essentially destitute. "I think he has the message already," Whitt said. "He already knows without spending another day in jail."

Prosecutors, though, had asked for a stiff sentence, noting the "risk to human life and health" created by the conspiracies that Hughart participated in at Massey. "The defendant risked the lives and health of hundreds of coal miners," Ruby told Berger during Tuesday's hearing.

Previously in the Upper Big Branch probe, a former miner at the operation, Thomas Harrah, was sentenced to 10 months in jail after he admitted to faking a foreman's license when he performed key mine safety examinations at the mine between January 2008 and August 2009, and then lied to investigators about his actions.

Berger sentenced a former Upper Big Branch security director, Hughie Elbert Stover, to 36 months in jail after Stover was convicted of two felonies: making a false statement and obstructing the government probe of the mine disaster.

And in January, the judge sentenced former Upper Big Branch superintendent Gary May to 21 months in jail and a $20,000 fine after he pleaded guilty to plotting to skirt safety rules and cover up the resulting hazards....

During Tuesday's hearing, Hughart apologized for his actions and told Berger he had learned from his early days as a miner that "advance notice" of inspections was the way things were done. "I accepted that as the practice, and I understand now it is a serious issue, and it is against the law," Hughart said.

Berger noted previous evidence in the Upper Big Branch cases that suggested MSHA inspectors knew about -- and perhaps even cooperated with -- mine operators having pre-inspection notice. "Advance notice was apparently a common practice in the industry," Berger said. "It's difficult to believe that the only people who were unaware of these practices were the MSHA inspectors."

Terry Ellison, whose brother, Steve Harrah, died at Upper Big Branch, attended Tuesday's court proceedings. "I came for the 29 miners," Ellison said. "I don't want them to be forgotten. There was no reason they should have been killed that day."

September 13, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Thursday, September 12, 2013

US Sentencing Commission releases more documents in its great new "Quick Facts" series

I am so very pleased to see and to be able to report that the US Sentencing Commission is continuing to produce a steady stream of documents as part of its terrific new series of reader-friendly "Quick Facts" publications.  (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.)

As I have said before, I think this is a very valuable new innovation coming from the USSC, and I have already learned a lot and benefited greatly from these latest two publications in the series:

September 12, 2013 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Tuesday, September 10, 2013

You be the federal sentencing judge: "Newlywed Admits to Pushing Husband off Cliff"

Jordan-Linn-Graham_2666631bThe title of this post is drawn from the headline of this notable new local "real crime" story that is all the buzz this morning in lots of national media outlets.  Based on the reported facts reprinted below, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this killer bride (who is in federal custody because she committed her crime at a national park):

The wife of a 25-year-old Kalispell man, who was found dead in Glacier National Park in July, is now charged with his murder.  Jordan Linn Graham, 22, appeared in federal court in Missoula on Monday on a charge of second degree murder in the death of her husband, Cody Lee Johnson.

Court documents allege the newlywed wife pushed her husband off a cliff in Glacier National Park during an argument just a week after they were married.  Charging documents reveal Jordan Linn Graham told a friend she was having second thoughts about getting married to Cody Lee Johnson.  Graham then told her friend she intended to discuss the matter with Johnson that night, Sunday, July 7.  She followed up with a text message that read, "But dead serious. If you don't hear from me at all again tonight, something happened."

The next day, Monday, July 8, Johnson was reported missing when he failed to show up for work.  Around 8:30 p.m. on Thursday, July 11, a Glacier National Park ranger was dispatched to the Lake Mcdonald Camp Store for a visitor reporting a dead body. The affidavit states that Graham was identified as the person who told the ranger she found a dead body.

Johnson's body was recovered the next day below a popular viewpoint on the Going-to-the-Sun Road called "The Loop."  Graham was interviewed by FBI special agents on July 16, which was nearly one week after the disappearance of her new husband.  It was then that she admitted to law enforcement that she lied about Johnson's death.

She told the FBI agent she and her husband were arguing on July 7 as they walked the Loop Trail.  Documents say at one point, she turned to walk away, but Johnson grabbed her arm. Graham said she turned around and removed his hand from her arm.  She went on to say that "she could have just walked away, but due to her anger, she pushed Johnson with both hands in the back and as a results, he fell face first off the cliff."  During an initial interview with law enforcement, Graham said that Johnson left the house late with friends in a dark-colored car late on the night in question. 

Graham faces a federal charge of second degree murder. If convicted, she could face life in prison.

The U.S. Sentencing Guidelines provide a base offense level of 38 for second-degree murder in section 2A1.2, which corresponds to an advisory guideline sentencing range of just under 20 to 25 years (assuming no significant criminal history).  But I would expect a guilty plea here which alone, thanks to an acceptance of responsibility downward adjustment, could reduce the advisory range to 14 to 18 years.  That said, the defendant's prior lies about the crime could lead to an obstruction of justice enhancement, and it is especially interesting to consider whether federal prosecutors could or should also argue for another offense level upward adjustment here based on abuse of a position of private trust.

Of course, the defendant might be able to secure a guilty plea to only a voluntary or involuntary manslaughter charge, which could and would alone dramatically reduce the applicable guideline sentence range (as evidenced here and here), perhaps even to a guideline level so low that the advisory range might even permit a within-guideline sentence involving an alternative to incarceration.  And, of course, with the federal sentencing guidelines only advisory, a federal sentencing judge could surely develop under various 3553(a) factors various arguments to justify a sentence perhaps as high as life and as low as straight probation.

Though I am not teaching my upper-level sentencing course until next semester, I sincerely hope (and somewhat expect) that this case will stay in federal court and stay in the headlines for some time.  As the discussion above is meant to highlights, this case serves as an interesting and accessible example of just how much discretionary sentencing play there is in the "joints" of the modern federal sentencing system for both litigants and judges.

UPDATE:  The FBI affidavit which provided the basis for charges in this case is now available via this link.

September 10, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22) | TrackBack

Friday, September 06, 2013

"McSentencing: Mass Federal Sentencing and the Law of Unintended Consequences"

The title of this post is the title of this provocative new paper by Melissa Hamilton now available via SSRN. And this abstract suggests the content of the article is as delicious as the title:

The law of unintended consequences conjectures that any legislative act will yield unanticipated, and likely undesirable, outcomes. Federal sentencing law is no exception. Federal sentencing reforms enacted in the 1980s were designed to achieve uniformity and proportionality in meting out punishments. Congress expected that the creation of a presumptive guidelines system and the frequent imposition of mandatory minimum sentencing laws would effectively operate to provide federal judges with a consistent and uniform set of rules to follow, while substantially curbing judicial discretion. The emergent sentencing system relies substantially on a mechanized system of assembly-line justice in which judges are demoted to merely terminal actors in issuing sentences. This Article posits that the system is a form of McDonaldization of society, a popular concept that recognizes the model of fast food consumerism is an ideal type of the bureaucratization of a modern rational system in America today. The federal sentencing system is intended by the reform legislation to comprise a sort of McSentencing in that the outputs — sentences — are produced through an automated process involving discrete quantifications of harm. The result is mass sentencing based on an extensive and refined rules and procedures manual, i.e., the guidelines, and relevant mandatory minimums.

As with the fast food chain, McSentencing offers such benefits as predictability, calculability, efficiency, and control. Theoretically, McSentencing should beget consistent, uniform, and normative punishments. Yet, as with any rational system, unintended consequences necessarily follow purposive legislative action. This Article explains how the federal sentencing system earns the McSentencing label and then addresses significant unanticipated consequences which have ensued. The actors in the proposed assembly-line of sentencing — the sentencing commission, prosecutors, probation officers, judges — have reacted to the reforms and to each other in ways that have biased the ability for the sentencing reforms to achieve the intended objectives. The federal sentencing system is in crisis as a result. This Article offers a unique perspective by utilizing the theoretical constructs of McDonaldization and the law of unintended consequences as orienting devices for a case study on federal sentencing law. Statistical measures derived from various government datasets supplement the analysis with empirical perspectives.

September 6, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, August 27, 2013

In praise of the US Sentencing Commission's new "Quick Facts" series

I am very pelased to see and to be able to report that the US Sentencing Commission has launched a notable new series of reader-friendly publications.  This posting from the USSC's webpage explains:

NEW Quick Facts Publication Series Launched

The Commission presents a new publication series called "Quick Facts." These publications will give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.

I think this is a terrific new innovation coming from the USSC, and I have already learned a few things from these first two publications in the series:

August 27, 2013 in Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, August 15, 2013

How should the US Sentencing Commission's priorities and work be impacted by AG Holder's recent sentencing speech and actions?

The question in the title of this post is prompted in part by the fact that, as I write this post, the US Sentencing Commission is in the midst of a formal public meeting in DC which has as its final agenda item "Vote on Final Policy Priorities for 2013–2014." It is also motivated by the fact that the Attorney General Eric Holder's potent remarks to the ABA earlier this week, covered lots of federal sentencing ground, made the profound claim that our "criminal justice system ... is in too many respects broken," ordered lots of sentencing-focused reforms to the policies and practices of federal prosecutors, and yet did not make a single mention of the U.S. Sentencing Commission (though he did reference a bit of USSC research).

The USSC has usefully posted on this helpful webpage many of the informed and copious comments it received over the summer, and that includes this detailed 18-page letter to the Commission from AG Holder's Department of Justice which actually previewed back in July many of the themes and ideas stressed in AG Holder's speech.  (That USSC page also has posted my own little four-page contribution discussing what I think should now be priorities for the Commission.)

But, of course, all the July comments sent to the US Sentencing Commission came before Holder's big speech a few days ago.  And I am certain my own recommendations to the USSC might have been at least stated somewhat differently if I had the AG's text and policy changes in hand when I authored them.  More broadly, I suspect lots of different folks may have lots of different views about just how the USSC ought to consider and respond to what AG Holder did and said earlier this week.  I would really like to hear some of these views in the comments.

Some recent and older related posts about AG Holder's speech the new federal politics of sentencing:

UPDATE Following its public meeting today, the USSC released this press release which starts this way: "The United States Sentencing Commission today unanimously voted on its list of priorities for the coming year, including consideration of federal drug sentences and continued work on addressing concerns with mandatory minimum penalties."  Here is more from the release:

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

The Commission also set out as an important new priority reviewing the sentencing guidelines applicable to drug offenses, including consideration of changing the guideline levels based on drug quantities.  Drug offenders account for nearly half of all federal inmates, and an adjustment to the Drug Quantity Tables in the sentencing guidelines could have a significant impact on sentence lengths and prison populations.

“With a growing crisis in federal prison populations and budgets, it is timely and important for us to examine mandatory minimum penalties and drug sentences, which contribute significantly to the federal prison population,” Judge Patti Saris, Chair of the Commission, said. “These reviews are key components of the Commission’s ongoing work to further the goals of the Sentencing Reform Act that the federal sentencing scheme and the guidelines be flexible, certain, and fair.”

The Commission noted in its priorities a focus on fulfilling its statutory mandate to work to reduce overcapacity in federal prisons. “The Commission is looking forward to a serious and thoughtful reconsideration of some of the sentencing guidelines which most strongly impact the federal criminal justice system,” Judge Saris said.  “I am glad that members of Congress from both parties and the Attorney General are engaged in similar efforts.”...

The Commission annually identifies policy priorities in accordance with its statutory authority and responsibility to periodically review, analyze, and revise federal sentencing guidelines.  The Commission published tentative priorities and invited public comment in May and received more than 14,000 letters of public comment in response.

August 15, 2013 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Thursday, August 01, 2013

Senators Durbin and Lee come together to introduce "Smarter Sentencing Act"

Lee official_photoAs reported via this press release from the offices of Senator Dick Durbin, another notable pair of Senators from the two parties have put aside other differences to come together to support and promote federal sentencing reform.  (Since the press release comes from Senator Durbin's office, I have Senator Lee's picture posted.)   Here are the basics:

With federal prison populations skyrocketing and nearly half of the nation’s federal inmates serving sentences for drug offenses, Assistant Majority Leader Dick Durbin (D-IL), Senator Mike Lee (R-UT) have introduced the Smarter Sentencing Act, to modernize our drug sentencing polices by giving federal judges more discretion in sentencing those convicted of non-violent offenses. Making these incremental and targeted changes could save taxpayers billions in the first years of enactment.

“Mandatory minimum sentences for non-violent drug offenses have played a huge role in the explosion of the U.S. prison population,” Durbin said. “Once seen as a strong deterrent, these mandatory sentences have too often been unfair, fiscally irresponsible and a threat to public safety. Given tight budgets and overcrowded prison cells, judges should be given the authority to conduct an individualized review in sentencing certain drug offenders and not be bound to outdated laws that have proven not to work and cost taxpayers billions.”

“Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said. “By targeting particularly egregious mandatory minimums and returning discretion to federal judges in an incremental manner, the Smarter Sentencing Act takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing polices.”

The United States has seen a 500 percent increase in the number of inmates in federal custody over the last 30 years, in large part due to the increasing number and length of certain federal mandatory sentences. Mandatory sentences, particularly drug sentences, can force a judge to impose a one-size-fits-all sentence without taking into account the details of an individual case. Many of these sentences have disproportionately affected minority populations and helped foster deep distrust of the criminal justice system.

This large increase in prison populations has also put a strain on our prison infrastructure and federal budgets. The Bureau of Prisons is nearly 40 percent over capacity and this severe overcrowding puts inmates and guards at risk. There is more than 50 percent overcrowding at high-security facilities. This focus on incarceration is also diverting increasingly limited funds from law enforcement and crime prevention to housing inmates. It currently costs nearly $30,000 to house just one federal inmate for a year. There are currently more than 219,000 inmates in federal custody, nearly half of them serving sentences for drug offenses.

The bipartisan Durbin-Lee-Leahy bill is an incremental approach that does not abolish any mandatory sentences. Rather, it takes a studied and modest step in modernizing drug sentencing policy by:

• Modestly expanding the existing federal “safety valve”....

• Promoting sentencing consistent with the bipartisan Fair Sentencing Act: The bipartisan Fair Sentencing Act of 2010 – which was authored by Senator Durbin and unanimously passed the Senate before it was signed into law – reduced a decades-long sentencing disparity between crack and powder cocaine offenses. Unfortunately, because of the timing of their sentences, some individuals are still serving far-too-lengthy sentences that Congress has already determined are unjust and racially disparate. The Smarter Sentencing Act allows certain inmates sentenced under the pre-Fair Sentencing Act sentencing regime to petition for sentence reductions consistent with the Fair Sentencing Act and current law....

• Increasing individualized review for certain drug sentences: The Smarter Sentencing Act lowers certain drug mandatory minimums, allowing judges to determine, based on individual circumstances, when the harshest penalties should apply. The Act does not repeal any mandatory minimum sentences and does not lower the maximum sentences for these offenses....

The bipartisan Smarter Sentencing Act is supported by faith leaders from the National Association of Evangelicals to the United Methodist Church. It is supported by groups and individuals including Heritage Action, Justice Fellowship of Prison Fellowship Ministries, the ACLU, Grover Norquist, the National Organization of Black Law Enforcement Executives, the Leadership Conference on Civil and Human Rights, the NAACP, the Sentencing Project, Open Society Policy Center, the American Bar Association, NAACP Legal Defense and Educational Fund, the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums, the Constitution Project, Drug Policy Alliance, Brennan Center for Justice, and Lawyers’ Committee for Civil Rights Under Law.

I am going to need to see the text of this new bipartisan Smarter Sentencing Act before opining about whether it is a terrific reform proposal or just a very good one. But, even without seeing the specifics, I can note and praise the willingness and ability for these Senators, who likely do not agree on too many issues, coming together to give effect to their shared view that the federal sentencing system need to be made smarter.

Some recent and older related posts about the new federal politics of sentencing:

August 1, 2013 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Thursday, July 25, 2013

Waaaaay below federal guideline prison sentences (but big fines) for UBS bid-riggers

As reported in this Wall Street Journal, headlined "US set back on bid-rig sentencing," a federal district judge in NYC yesterday handed down a set of white-collar sentences that were far below calculated guideline ranges and far below the sentences being sought by federal prosecutors.  Here are the details:

US District Judge Kimba Wood of the Southern District of New York handed Peter Ghavami, the former co-head of UBS' municipal-bond reinvestment and derivatives desk, an 18-month sentence. Prosecutors had sought at least 17½ years and as long as 21 years, 10 months for Ghavami, who also served as the Swiss bank's head of commodities at one point.

The much harsher sentence proposed by the government would have been longer than the 11-year term given in 2011 to Galleon hedge-fund founder Raj Rajaratnam for his insider-trading conviction.

But Judge Wood, a one-time nominee to become US attorney general who also sentenced former Drexel Burnham Lambert executive Michael Milken to 10 years in prison, raised questions about the government's method of calculating losses in the case, which it had pegged at about $25 million.

She also praised Ghavami's "admirable history" and noted that he faces other penalties including a $1 million fine and deportation to Belgium, where he is a citizen. Because Ghavami, 45 years old, is not a US citizen, he also has to serve in a "low security" prison instead of a "miminum security" camp.

One of Ghavami's former colleagues, Gary Heinz, 40, a former vice president on UBS' municipal-bond reinvestment desk, was given a 27-month sentence Wednesday, while Michael Welty, 49, another former vice president, got 16 months. Prosecutors had asked for at least 19½ years for Heinz and about 11 years or more for Welty.

Last summer, a New York jury found the three former UBS employees guilty of leading a scheme that caused municipalities to pay millions of dollars more for bond deals than they needed to pay. The case dealt with an obscure corner of the bond market in which local governments raise money from investors through bond deals, then invest the proceeds in investment products that banks and others are supposed to sell in a competitive process....

In the UBS bond-rigging case however, prosecutors sought stiff penalties for actions that took place before the financial crisis, from 2001 to 2006.  The three former UBS employees caused cities, states and other municipalities to lose $25 million, the government alleged. "For years, these executives corrupted the competitive bidding process and defrauded municipalities," said Scott D. Hammond, deputy assistant attorney general in the Antitrust Division's criminal-enforcement program, in a statement.....

"We're extremely pleased with the sentence," said Charles Stillman, a lawyer for Ghavami. Ghavami intends to start serving his sentence as soon as possible, instead of waiting to see how his appeal of the case turns out, Stillman added.  Ghavami's fine of $1 million was five times greater than the maximum suggested by the government.

Heinz and Welty were fined $400,000 and $300,000, respectively, both more than the government suggested.  Marc Mukasey, Heinz's lawyer, said "We're happy that the government's outrageous sentencing request was soundly rejected."  Welty's lawyer, Gregory Poe, said that the jury acquitted Welty of wire fraud and said he will appeal the conspiracy convictions, and "we hope to clear his name."  He added that his client is grateful that Judge Wood rejected the government's sentencing position.

Over the past half-decade, the Justice Department has pursued the muni-bond cases as part of an effort to punish Wall Street banks for shortchanging cities and states. Prosecutors have enjoyed some victories, so far gathering six convictions and 13 guilty pleas.  Several were sentenced before Wednesday, with prison terms ranging from six months to four years.  Firms affected by the investigation have paid $745 million in restitution, penalties and disgorgement....

It remains to be seen whether this week's sentencing setback will affect the government's strategy in the other pending sentencing hearings.  Two former JP Morgan Chase. employees, two former Bank of America employees and three others involved with the case await sentencing.  One case remains pending and awaiting trial.

Last year, three former employees of General Electric were convicted for their roles in conspiracies related to bidding for municipal-bond-proceeds reinvestment. Two were sentenced in October to three years in prison and the third received a four-year term.

At the hearing Wednesday, prosecutors argued that the former UBS officials deserved more prison time than the former GE employees, while Judge Wood said she didn't see the cases as that different.  She also expressed doubt that anyone could accurately quantify losses in cases where the bidding process had been corrupted. In the case of the three UBS officials sentenced Wednesday, federal prosecutors also sought fines of $20,000 to $250,000 in the case.  Prosecutors called their actions a "sophisticated financial fraud" that went on for years and "victimised municipalities and other bond issuers".

There are obviously lots of interesting aspects to this sentencing story.  I am especially eager to praise Judge Wood for using big financial penalties — which make the government money and seem especially fitting for crimes of greed — while refusing to use big imprisonment terms — which cost the government money and seem unlikely to impact public safety for non-violent white-collar criminals. Relatedly, given that this article suggests that all other comparable big-rigging defendants have received sentences ranging from 6 to 48 months, I find stunning and deeply troubling that federal prosecutors were advocating in these cases for sentences ranging from more than 130 months to 260 months. Nice effort to avoid unwarranted sentencing disparities via your advocacy here, DOJ. (Not!)

July 25, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, July 24, 2013

"Critical Analysis of Acquitted Conduct Sentencing in the U.S.: 'Kafka-Esque', 'Repugnant', 'Uniquely Malevolent' and 'Pernicious'?"

The title of this post is the title of this paper recently posted on SSRN and authored by Orhun Hakan Yalincak. Here is the abstract:

The use of acquitted at sentencing is a highly contested practice in sentencing theory and policy. In federal court and many state courts across the United States, once a defendant is convicted, judges are routinely permitted, in fact, required to increase a defendant’s sentence based on relevant conduct, of which he was acquitted at trial, or conduct for which he was never charged. This essay highlights the issues that arise from the use of acquitted conduct sentencing under the now advisory U.S. Sentencing Guidelines. The use of acquitted conduct under the relevant conduct provisions of the Guidelines has resulted in substantially longer prison sentences with a disparate impact on racial and ethnic minorities. Acquitted conduct sentencing treats the offence admitted by a defendant, or proven to a judge or jury’s satisfaction beyond a reasonable doubt as simply a starting point in calculating a defendant’s sentence; the modified real offense approach, which incorporates relevant conduct and mandates consideration of acquitted conduct, determines the end sentence.

This essay concludes that use of acquitted conduct should be prohibited both on constitutional and normative grounds. While it is outside the scope of this essay to offer a comprehensive solution or alternative to the use of acquitted conduct at sentencing, the key observation is that, since the common thread linking the constitutional and normative issues arise from the fragmented nature of U.S. sentencing policy, the solution must start with re-conceptualizing the theories underlying sentencing in the U.S.

July 24, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Tuesday, July 23, 2013

Second Circuit finds stat max white-collar sentences procedurally unreasonable

The Second Circuit panel has today handed down a significant reasonableness ruling in US v. Juncal, No. 10-1800 (2d Cir. July 23, 2013) (available here), which should be of special interest to all white-collar sentencing practitioners. The last seven pages of the per curiam panel opinion and the entire nine pages of the concurrence by Distict Judge Underhill (sitting by designation) are must reads for sentencing fans, and the few paragraphs I will reprint here help highlight why.

The per curiam panel opinion find procedurally unreasonable 20-year sentences given to defendants who were part of a conspiracy "which involved a scheme to obtain a three billion dollar loan supposedly intended to finance construction of a pipeline across Siberia [that] resulted in no actual loss." Here is part of the panel opinion's explanation for why these sentences were procedurally unreasonable:

Here, appellants’ lawyers highlighted significant issues with the intended loss calculation both in their briefs and at sentencing. Given the low risk that any actual loss would result — what hedge fund would fall prey to a purported coalition of Buryatian nationals and Yamasee tribesmen using AOL email accounts to offer five billion dollars in collateral for a loan to build a pipeline across Siberia? — counsel argued that a 30 point mega-enhancement vastly overstated both the seriousness of the offense, and the danger of appellants to their community.  The Guidelines acknowledge that potentiality; application note 3(C) to U.S.S.G. § 2B1.1 indicates that a downward departure may be warranted where the offense level resulting from a loss calculation overstates the seriousness of an offense.  But the sentencing court never resolved appellants’ significant arguments.  At Sampson’s hearing the District Court did draw a comparison between other financial crimes and this case, but it never resolved the question raised by the appellants — whether treating intended loss like actual loss under all the circumstances of this case leads to a sentence consistent with the dictates of section 3553(a).

The concurring opinion by Judge Underhill is even more potent as it advocates for a broader ruling that the sentences here are substantively unreasonable, and here is how it gets started

In my view, the loss guideline is fundamentally flawed, and those flaws are magnified where, as here, the entire loss amount consists of intended loss.  Even if it were perfect, the loss guideline would prove valueless in this case, because the conduct underlying these convictions is more farcical than dangerous. If substantive review of sentences actually exists other than in theory, it must be undertaken at least occasionally.  This would have been an appropriate case in which to do so, because it raises so starkly the problems with the loss guideline. Until this Court weighs in on the merits of the loss guideline, sentences in high-loss cases will remain wildly divergent as some district judges apply the loss guideline unquestioningly while others essentially ignore it.  The widespread perception that the loss guideline is broken leaves district judges without meaningful guidance in high-loss cases; that void can only be filled through the common law, which requires that we reach the substantive reasonableness of these sentences.

July 23, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, June 20, 2013

"White-Collar Sentences Get a Fresh Look"

The title of this post is the headline of this notable new Wall Street Journal article, which gets started this way:

A hearing scheduled for Friday in a Houston federal court on whether to substantially reduce former Enron Corp. Chief Executive Jeffrey Skilling's 24-year prison sentence comes at a time of growing debate about the rules for punishing white-collar criminals.

Individuals convicted of federal crimes are sentenced using a set of guidelines in which "points" are added or subtracted relating to various aspects of a person's conduct and the crimes involved. Over the past several decades, the potential penalties for a range of crimes have greatly increased in severity, with particularly large increases in certain types of fraud cases, according to legal experts.

Critics of the guidelines in white-collar cases contend that they have come to rely too much on financial-loss calculations, which can quickly mushroom when the crime involves a public company whose stock price falls in connection with the misdeeds. In certain cases, a public-company executive could face life in prison, said James Felman, a Tampa, Fla., defense attorney and member of a recently formed American Bar Association task force looking at proposing revisions in the guidelines for economic crimes.

The U.S. Sentencing Commission, the guideline-writing body created by Congress in the 1980s, has identified possible revision of the economic-crime rules as a priority. The commission has scheduled a September symposium in New York to get input on possible changes.

The guidelines "should be scrapped in their entirety," said Jed Rakoff, a New York federal judge and member of the new ABA Task Force, in a speech earlier this year. For instance, putting heavy emphasis on the calculated loss in determining fraud sentences "does not fairly convey the reality of the crime or the criminal," said Judge Rakoff, a Clinton appointee and longtime critic of aspects of the guidelines. He recommended replacing the arithmetic calculation system with one where judges could use a broad set of factors, none of which would automatically carry extra weight.

More judges seem to be departing from the guidelines. A Sentencing Commission study issued last December found that the percentage of fraud cases in which federal judges gave sentences below the guideline recommendation jumped to 23% of cases for 2007 to 2011 from 9.6% for 1996 to 2003. These percentages don't include cases where the Justice Department recommended a below-guideline sentence for reasons that included cooperation by the defendant in an investigation.

The increasing gap between the guideline calculations and actual sentences was a factor in the Sentencing Commission's decision to look at revising the economic-crime rules, said one person familiar with the matter.

June 20, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (3) | TrackBack

Wednesday, June 19, 2013

Guest post with more thoughtful perspectives on Peugh

I am very pleased to have received and to now have time to post the following "quick thoughts" of Professor Todd Haugh concerning last week's SCOTUS Puegh decision (basics here):

First, Justice Sotomayor is really establishing herself as the Court's current sentencing scholar, particularly as to Guidelines issues.   By my quick tally, since taking her seat in 2009, she has drafted or significantly contributed to seven or eight important sentencing cases, while others are at two or three.  I imagine her status as the Court's only member to have regularly sentenced defendants as a trial court judge has something to do with this -- she often seems to be the voice expressing the practicalities of sentencing (both from the defendants' and judges' standpoints), which has carried the day in Peugh and some of her other recent opinions (Pepper and Southern Union come to mind, as does the Alleyne concurrence).  Scalia's and Breyer's overall impact may prove to be greater, but Sotomayor appears to be asserting herself in this area (and willing to spar with Alito).

Second, following that thought and in line with some of the comments [to this prior Peugh post ], the Peugh opinion is about the actual practice of federal sentencing versus how the system operates in theory.  The dissent was sunk by its first argument -- that the Guidelines do not constrain district court discretion.  While in theory, based on the language and structure of 3553(a) and the Court's reasonableness review jurisprudence, that may be true (and every defense attorney argues in the hopes of making it true), the realities of in-the-trenches sentencing demonstrate that increased Guideline ranges equal increased sentences (and thus risk of increased punishment under ex post facto analysis). This fact is well-documented by the Commission's recent Booker report, it's yearly data, it's survey of judges; and a host of academic articles concerning the psychological process of judges when sentencing (i.e., anchoring and adjustment, etc. -- see footnote 1 in Judge Calabresi's concurrence in Ingram [discussed here]).  It's why DOJ advocates to members of Congress and the Commission for additional sentencing enhancements -- increased risk to defendants of higher punishments means more bargaining power for prosecutors.  Query whether the majority's argument weakens if variance rates climb both in number and, most importantly, length.

Third, while I don't think this opinion is going to have huge practical effects on federal sentencing because the Seventh Circuit was an outlier (and there is likely harmless error in many of those cases), the opinion may have a lot of rhetorical value.  Defendants basically got a win-win here -- assurance that they will be sentenced under the most favorable Guidelines per the majority and lots of juicy language to quote when they argue for a variance per the dissent.  I would expect to see Peugh cited in a lot of future federal sentencing memos.

Judges, however, may have gotten the short end of the stick because they now face even more complexity when they determine sentences (a trend that has continued since Booker).  Before Puegh, they had to calculate the Guidelines, then decide on departures, then consider a 3553(a) variance (seven factors; four purposes of punishment). Now, Peugh suggests courts should also consider how the evolution of the Guideline at issue (pre- and post-offense) weighs on the sentence.  That could mean at least two more Guideline calculations (1987 version if Doug Berman is your defense counsel and the current, harsher version of the Guidelines if you are facing a prosecutor who reads this blog), but it could mean even more (what about Guideline ranges before and after major changes by the Commission, e.g., before and after SOX or Dodd-Frank, to demonstrate that evolution?).

Recent related posts:

June 19, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (8) | TrackBack

Tuesday, June 18, 2013

Seeking comments on what to say in comments to the US Sentencing Commission about its priorities

A wise colleague wisely suggested to me that this year might be an especially wise time to convert all my ideas and concerns about the work of the US Sentencing Commission into formal comments for formal submission to the USSC as a formal response to this formal statement of the USSC's proposed priority policy issues for the amendment cycle ending May 1, 2014.

The USSC's six-page Federal Register statement of tentative priorities lists just about every topic that has consumed the recent work of the Commission, ranging from mandatory minimums to post-Booker sentencing patterns to the child porn guidelines to the drug guidelines to economic crimes and lots of stuff in between (including even some back-end sentencing stuff like the compassionate release guidelines).  Nevertheless, there are still plenty of topics not mentioned that I think should be high on the Commission's agenda, ranging from the impact of sequester on the operation of the federal criminal justice system to the enduring need for serious guideline simplification to the overwhelming problem of undue sentencing severity.

Here is the official statement of the official rules for submitting official public comments to the USSC:

The Commission hereby gives notice that it is seeking comment on [its] tentative priorities and on any other issues that interest ed persons believe the Commission should address during the amendment cycle ending May 1, 2014.  To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority.

Appropriately, the final line in the USSC's notice includes this fitting kicker: "Pursuant to 28 U.S.C. § 994( g), the Commission also invites public comment that addresses the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to a proposed priority."

So, to the extent practicable, I would love to hear from readers about what they think I should make sure to put into my formal comments to the USSC.  I have until July 15 to get this done, but I would very much like to have a document ready to send out not long after I enjoy the rocket's red blare this coming Independence Day.

June 18, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, June 14, 2013

Lots of reasonable debate over the guidelines and reasonable review from Second Circuit judges

With thanks to the readers who alerted me, I wanted to alert everyone else to todays Second Circuit opinion in US v. Ingram, No. 12-1058 (2d Cir. June 14, 2013) (available here).  The per curiam opinion, which affirms a below guideline drug sentence, is not at all notable (and runs only 3 pages). 

But the concurring opinions are both must reads: the first is by Judge Calabresi and runs 14 pages, the second is by Judge Raggi and runs 17 pages to explain why she thinks the prior 14 pages are all washed up.   As a reader put it, the two Second Circuit jurists here "have at it on various psychological, philosophical, and practical matters concerning sentencing under the Guidelines."

June 14, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, June 12, 2013

Bipartisan House Overcriminalization Task Force schedules first hearing for June 14

I learned via this NACDL press release that Representative Jim Sensenbrenner Chairman Sensenbrenner has scheduled the first hearing of the Overcriminalization Task Force for this Friday, June 14, 2013, at 9:00 a.m. at 2237 Rayburn House Office Building." Here is more background and details via the release:

On May 7, 2013, The House Committee on the Judiciary voted unanimously to create the “Overcriminalization Task Force of 2013.”  At a press briefing that day, Judiciary Committee and Overcriminalization Task Force leaders expressed agreement on the need to address several important issues, including the erosion of the mens rea (or criminal intent) requirement in federal criminal law, the often unnecessary duplication of state law in the federal code, overincarceration, and the explosion of regulatory offenses that some estimate may now number as high as 300,000, among other issues.  Members also expressed the need to address mandatory minimum sentences.

According to Judiciary Committee Chairman Bob Goodlatte (R-VA), “The task force will be authorized for six months and will be led by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner and Ranking Member Bobby Scott.” It will “conduct hearings and investigations and issue a report on overcriminalization in the federal code, as well as possible solutions.”  The task force is made up of five Democrats and five Republicans, and will include Judiciary Committee Ranking Member John Conyers (D-MI) and Chairman Goodlatte as ex-officio members....

The topic of this first hearing is “Defining the Problem and Scope of Overcriminalization and Overfederalization.” [And here are the scheduled witnesses:]

Mr. Steven D. Benjamin, President, National Association of Criminal Defense Lawyers

Mr. John Malcolm, Rule of Law Programs Policy Director, The Heritage Foundation

Mr. William N. Shepherd, Chair, Criminal Justice Section, American Bar Association

The Honorable George Terwilliger, III, Partner, Morgan, Lewis & Bockius LLP

A webcast of the hearing as well as the written testimony of the witnesses will be made available [at this link].

June 12, 2013 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

"What the Sentencing Commission Ought to Be Doing: Reducing Mass Incarceration"

The title of this post is the title of this notable new article by Judge Lynn Adelman available via SSRN.  With three new members of the US Sentencing Commission, the piece is especially timely, and here is the abstract:

The United States presently incarcerates about 2.3 million people.  We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners.  Incarcerating so many people raises important moral issues because the burden of incarceration is borne largely by minorities from impoverished inner city communities. Further, those incarcerated suffer detriments that go far beyond the legislated criminal penalty and doom many offenders to a continuing cycle of re-incarceration. Over-incarceration is also very costly.

The federal government contributes significantly to this problem.  Every week it locks up a record number of people, presently about 216,000.  While some states have recently reduced their prison populations, the federal prison population continues to increase.  The principal reason for this is federal sentencing law. Since Congress enacted the Sentencing Reform Act (“SRA”) creating the Sentencing Commission and directing it to establish sentencing guidelines, the average federal sentence has more than doubled.  Federal prisons are now at 138% of capacity and consume an ever-increasing share of the federal criminal justice budget.

There are only two ways that we can reduce the prison population: by sending fewer people to prison and imprisoning people for shorter lengths of time.  Many observers believe that the sentences called for by the federal sentencing guidelines, which were mandatory until 2005 when the Supreme Court decided United States v. Booker and made them advisory, are too severe and could be significantly reduced without endangering public safety.  The Commission, however, has shown no interest in making guideline sentences less harsh. Rather, its principal concern is that since Booker judges are imposing too many below guideline sentences and thereby creating disparity.  Thus, it recently asked Congress to require sentencing judges to give additional weight to the guidelines and provide additional justification for sentences varying substantially from the guidelines, and to require appellate courts to presume the reasonableness of guideline sentences and to strictly scrutinize sentences based on policy disagreements with the guidelines.  These restrictions would, of course, increase the federal prison population.

My essay argues that it serves no useful purpose for the Commission to continue to make its top priority curtailing judicial discretion in the name of reducing disparity.  I contend not only that the system created by the SRA and the guidelines failed but that any system principally designed to reduce disparity will fail.  I argue that, instead of attempting to curtail judicial discretion, the Commission should focus on the problem of over-incarceration.  The Commission is statutorily authorized and institutionally well-positioned to address this problem and, by doing so, it could have a positive impact on the entire American criminal justice system.  I propose that the Commission take such actions as modifying the guidelines to expand the use of probation, reducing the severity of numerous guidelines, developing a release program for elderly prisoners, lobbying Congress regarding mandatory minimum sentences, calling public attention to over-incarceration and others.  I also contend that if the Commission is intent upon reducing disparity, the best way to do so is by making the guidelines less severe and thus making it more likely that judges will follow them.

Some recent related posts:

June 12, 2013 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (20) | TrackBack

Monday, June 10, 2013

Guidelines are "the lodestone" of federal sentencing (as well as "the starting point and the initial benchmark")

225-lodestone-magnetThe title of this post is drawn from the key word in a key paragraph that captured my attention in what is otherwise a straight-forward opinion by the Supreme Court today in Peugh (basics here).  Here is the context from a paragraph that effectively summarizes the conclusions of the Peugh majority opinion per Justice Sotomayor:

"The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing.  A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation."

Major kudos to Justice Sotomayor for adding a fitting new term to the post-Booker federal sentencing lexicon.  Kudos also to the majority Court for stressing these enduring modern federal sentencing realities in the course of reaching its conclusions:

When Peugh committed his crime, the recommended sentence was 30 to 37 months.  When he was sentenced, it was 70 to 87 months....  Such a retrospective increase in the measure of punishment raises clear ex post facto concerns.  We have previously recognized, for instance, that a defendant charged with an increased punishment for his crime is likely to feel enhanced pressure to plead guilty.  See Carmell, 529 U.S., at 534, n.24; Weaver, 450 U.S., at 32.  This pressure does not disappear simply because the Guidelines range is advisory; the defendant will be aware that the range is intended to, and usually does, exert controlling influence on the sentence that the court will impose....

On the Government’s account, the Guidelines are just one among many persuasive sources a sentencing court can consult, no different from a “policy paper.”  Brief for United States 28.  The Government’s argument fails to acknowledge, however, that district courts are not required to consult any policy paper in order to avoid reversible procedural error; nor must they “consider the extent of [their] deviation” from a given policy paper and “ensure that the justification is sufficiently compelling to support the degree of the variance,” Gall, 552 U.S., at 50.  Courts of appeals, in turn, are not permitted to presume that a sentence that comports with a particular policy paper is reasonable; nor do courts of appeals, in considering whether the district court’s sentence was reasonable, weigh the extent of any departure from a given policy paper in determining whether the district court abused its discretion, see id., at 51.  It is simply not the case that the Sentencing Guidelines are merely a volume that the district court reads with academic interest in the course of sentencing.

And kudos also to Justice Thomas for providing a slightly competing vision of the post-Booker world via passages in his dissent like the following that, I suspect, will end up in many more defense sentencing submissions than government ones:

[T]he Guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence.  Second, to the extent that the amended Guidelines create a risk that a defendant might receive a harsher punishment, that risk results from the Guidelines’ persuasive force, not any legal effect....

Petitioner next argues that the Guidelines limit district court discretion because sentences falling outside the Guidelines are more likely to be reversed for substantive unreasonableness.  Brief for Petitioner 25.  I doubt, however, that reversal is a likely outcome when a district judge can justify his sentence based on agreement with either of two Guidelines — the old or the new.  If a district court calculated the sentencing range under the new Guidelines but sentenced the defendant to a below-Guidelines sentence that fell within the range provided by the old Guidelines, it would be difficult to label such a sentence “substantively unreasonable.”  To do so would cast doubt on every within-Guidelines sentence issued under the old Guidelines.

I have long suggested that defense attorneys regularly and in every case calculate, and submit to a sentencing court prior to sentencing, the "old" sentencing ranges that would have applied under the original 1987 version of the federal sentencing guidelines which were first promulgated by the original US Sentencing Commission.  The above-quoted passages from Justice Thomas now would enable sentencing courts to feel confident that a sentence within the range suggested by the 1987 guidelines should nearly always be deemed reasonable.

June 10, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

SCOTUS concludes Ex Post Facto Clause still limits application of new guidelines after Booker

Thanks to the fine folks live-blogging at SCOTUSblog, I can provide this summary report (with a few edits) of the one big sentencing ruling handed down by the US Supreme Court this morning:

Justice Sotomayor for the Court in Peugh v. United States....

The decision of the Seventh Circuit is reversed, the case is remanded.  The Court is splintered.  Justice Sotomayor delivers the opinion of the Court except for one part. The Ex Post Facto Clause is violated when a defendant is sentenced under guidelines promulgated after he committed his acts, and the new version of the guidelines provides for a higher sentence than the one in effect at the time he committed his act.

Justice Sotomayor's opinion is for the Court except for a discussion about the policies underlying the Ex Post Facto Clause.  It's another case where Justice Kennedy joins the more liberal members of the Court.

Justice Thomas dissents, joined by the Chief and Scalia and Alito. Justice Alito dissents, joined by Justice Scalia.  Justices Ginsburg, Breyer, and Kagan join all of the Sotomayor opinion; Justice Kennedy declines to join Part III-C.

The big fight in the case was whether the Sentencing Guidelines are important enough to trigger Ex Post Facto review given that they are no longer binding -- the majority says they are....

The part of the Sotomayor opinion that Kennedy does not join is a response to the argument by the government and the dissent that the Ex Post Facto Clause is not implicated by this case.  The ruling will be significant to the ability of courts to apply tougher new sentencing guidelines to pending cases.  It is also a strong reaffirmation of the Ex Post Facto Clause.

The full opinions in Peugh are available here.  The opinion for the Court per Justice Sotomayor runs 20 pages, and the main dissent per Justice Thomas is 14 pages. 

Kudos to the Court in keep this one relatively brief, as I suspect every sentence from the Justices in this case could end up having some impact on the operation of the post-Booker federal sentencing world.  And once I get some time to read these opinions, I will do some follow-up posts on whether Peugh passes the smell test (get it..., I know, pretty lame).

June 10, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Sunday, June 09, 2013

"Iowa judge calls sentencing guidelines for meth dealers 'flawed'"

The title of this post is the headline of this local article discussing a significant federal sentencing decision handed down late Friday.  Here are the basics:

Sioux City-based U.S. District Judge Mark Bennett on Friday became one of a handful of U.S. judges to declare public opposition to federal sentencing guidelines for methamphetamine dealers. He wrote that he considers them to be “fundamentally flawed,” not based on empirical data and too harsh for lower-level drug figures.

Bennett — declaring in a 44-page ruling that he has a “fundamental policy disagreement” with the methamphetamine portion of guidelines that federal judges are supposed to consider in sentencing criminals — cut the sentence of Sioux City drug dealer Willie Hayes to six years and three months from a possible 15 years, eight months....

Bennett, a longtime critic of mandatory minimum sentences, notes in his opinion that the methamphetamine guidelines lack the depth of other portions of the sentencing blueprint and appear to be more influenced by politics than by science. Methamphetamine dealers in recent years have faced much harsher sentences than dealers of marijuana, cocaine or heroin and run into mandatory minimum sentences for handling a much lower quantity of drug.

“The methamphetamine guidelines are fundamentally flawed because they fail to consider additional factors beyond quantity,” Bennett wrote. “The system is too severe in the indiscriminate way it treats offenders … . Since the methamphetamine guidelines are fundamentally flawed, I find that they fail to promote the purposes of sentencing” outlined in federal law.

Des Moines defense attorney Angela Campbell called the ruling “a very big deal, and it’s also something that’s been coming for a while.”...

Bennett’s ruling borrows reasoning from two other federal judges who have made similar stands — Joseph Bataillon of Nebraska and John Gleeson of New York. “He’s not a lone voice in the wilderness,” said Iowa defense attorney F. Montgomery Brown. And Bennett’s ruling likely will have an affect on how federal drug cases are argued.

“It’s an argument that defense lawyers in both the Northern and Southern districts of Iowa need to make,” Brown said. “It’s malpractice not to.”

I concur with the sentiment that Judge Bennett's work in US v. Hayes (available here) is a "very big deal," and I believe that federal defense attorneys nationwide, not just in Iowa, ought to be raising arguments based on Hayes in every federal meth sentencing case.

June 9, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, June 05, 2013

"Indeterminate Sentencing Returns: The Invention of Supervised Release"

The title of this post is the title of this new article by Fiona Doherty just published in the June 2013 issue of the New York University Law Review. Here is the abstract:

The determinacy revolution in federal sentencing, which culminated in the passage of the Sentencing Reform Act of 1984, has since been upended by a little-noticed phenomenon: the evolution of federal supervised release.  A “determinate” sentencing regime requires that prison terms be of fixed and absolute duration at the time of sentencing.  Because of the manner in which supervised release now operates, however, contemporary federal prison terms are neither fixed nor absolute. Instead, the court has discretion to adjust the length of a prison term after sentencing based on its evaluation of the post-judgment progress of the offender.  This power to amend the duration of the penalty is the classic marker of the “indeterminate” sentence.

In this Article, I show how federal supervised release has dismantled the ambitions of the determinacy movement and made federal prison terms structurally indeterminate in length.  I conclude that the widespread use of supervised release has created a muddled and unprincipled form of indeterminate sentencing: one that flouts the insights and vision of the nineteenth-century indeterminacy movement as well as the twentieth-century determinacy movement.  Having dislocated once-celebrated theories of sentencing, federal supervised release now controls the lives of more than 100,000 people without offering any alternative theoretical basis for doing so.  This Article draws on the lessons of a 200 year history to expose the current nature of supervised release and to envision a more coherent role for its future.

I have long viewed supervised release as an important, but badly under-examined and under-theorized, aspect of the modern federal sentencing system.  Thus I am pleased to see a prominent article taking on SR in a prominent way.

June 5, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, June 01, 2013

"Amoral Numbers and Narcotics Sentencing"

The title of this post is the headline of this notable new article authored by Mark Osler and now available via SSRN. Here is the abstract:

Americans are fascinated with lists and rankings. Magazines catch the eye with covers promising “92 Cute Summer Looks,” college football fans anxiously await the release of pre-season rankings, and law schools have reshaped themselves in reaction to the rankings released by U.S. News and World Report.  With each of these, though, the lists often do more to create a reality than to reflect one, with distinct negative effects. The same problem plagues federal narcotics sentencing, where rankings of the relative seriousness of crimes are embedded in sentencing guidelines and minimum sentences required by statutes, though they are rooted neither in empirical evidence nor a consistent theory of problem-solving.

June 1, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Sunday, May 26, 2013

"Not -So -Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines"

Lawreview-2011The title of this post is the title of this notable new Note by Andrew Tunnard just published in the Vanderbilt Law Review. Here are excerpts from this Note's introduction explaining its themes and scope:

[T]hree circuits [the Third, Seventh and Ninth have all] reasoned that adult convictions stemming from crimes committed before the age of eighteen can count toward the career offender sentencing provisions of the Guidelines (“Career Offender Guidelines”), regardless of whether the prior sentence was served in a juvenile facility.  The Fourth and Eleventh Circuits stand in opposition; they apply the Career Offender Guidelines by inquiring into the nature of the sentence served.  If a prior conviction resulted in a sentence served in a juvenile facility, this conviction cannot be counted toward a career offender determination.....

This Note looks beyond the circuit split to the larger juvenile justice issues implicated by these sentencing practices.  Part II provides a brief overview of the juvenile justice system, juvenile transfer statutes, and the Guidelines.  Part III explores the interpretive issues that have led to this circuit split.  Part IV explains why resolving this circuit split requires more than choosing one side, and expands the discussion by analyzing the impact of recent judicial and scientific trends on the treatment of juvenile offenders in the adult system.  Part V proposes that convictions occurring before the age of eighteen should not be factored into a career offender enhancement, regardless of the nature of the conviction or sentence. Ultimately, this solution creates a judicially manageable rule supported by Supreme Court precedent, state law, and the overall rehabilitative goals of the juvenile justice system.

May 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Wednesday, May 08, 2013

Feds and Jeff Skilling cut resentencing deal to fix new guideline range at 168 to 210 months

As had been previewed a public notice to victims from the Justice Department last month (noted here), federal prosecutors and former Enron CEO Jeff Skilling have reached a deal concerning unresolved matters before Skilling's resentencing. This Reuters article details the basics of this notable high-profile sentencing development:

Jeffrey Skilling, the former Enron Corp chief executive, could be freed from prison nearly a decade sooner than originally expected, under an agreement with federal prosecutors to end the last major legal battle over one of the biggest corporate frauds in U.S. history.

The agreement calls for Skilling to see his federal prison sentence reduced to as little as 14 years, down from the 24 years imposed in 2006. It could result in Skilling's freedom in late 2018, with good behavior.

In exchange, Skilling, 59, who has long maintained his innocence, agreed to stop appealing his conviction. The agreement would also allow more than $40 million seized from him to be freed up for distribution to Enron fraud victims.

A resentencing became necessary after a federal appeals court upheld Skilling's conviction but found the original sentence too harsh....  Wednesday's agreement, which is subject to court approval, recommends that Skilling be resentenced to between 14 and 17-1/2 years in prison, including time already spent there. Skilling has been in prison since December 2006.

A helpful readers forwarded to me the 7-page sentencing agreement, which can be downloaded below.  Here are the essential pieces of the deal:

The Government and the defendant agree that, based on the previous decisions of the Fifth Circuit with respect to proper calculation of the United States Sentencing Guidelines range and this Court's prior sentencing rulings on October 23, 2006, the United States Sentencing Guidelines provide that the defendant should be resentenced using an adjusted offense level of 36 and a criminal history category of I, resulting in an advisory guidelines range of 188 to 235 months of imprisonment.

For the reasons set forth below as "Relevant Considerations," the Government and the defendant agree to recommend jointly that the District Court apply a one-level downward variance and resentence the defendant using an adjusted offense level of 35, pursuant to the United States Sentencing Guidelines.  Given that the defendant is located in criminal history category I for resentencing purposes, the jointly recommended adjusted offense level will result in a jointly recommended guidelines range of 168 to 210 months of imprisonment.

Neither the Government nor the defendant will seek any variance or departure from the jointly recommended guidelines range.  The Government may allocute at sentencing, but the Government will not take a position regarding the particular sentence the District Court should impose within the jointly recommended guidelines range.

The defendant agrees to waive all potential challenges to his convictions and sentence, including a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, appeals, and collateral attacks, except as set forth [below]....

Neither the Government nor the defendant will appeal a sentence imposed within the jointly recommended guidelines range.  However, the Government and the defendant each reserve the right to appeal a sentence imposed outside this range.

Download Skilling Sentencing Agreement final.cfv

May 8, 2013 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 (4) | TrackBack

Senate hearings scheduled this afternnon for two of Prez Obama's USSC nominees

As detailed on this official Senate Judiciary Committee webpage, today at 2:30pm there is a scheduled a hearing on "Nominations" which includes the nomination of "William H. Pryor, Jr., to be a Member of the United States Sentencing Commission" and "Rachel Elise Barkow, to be a Member of the United States Sentencing Commission."

Regular readers may recall from this prior post that I am very excited about all three of the new nominees to fill open spots on the USSC. I am thus thrilled to see two of these nominees get a hearing only a few weeks after their nomination, but also a bit puzzled about why US District Judge Charles Breyer is not also having a hearing. (As a matter of pure speculation, I am inclined to guess that Judge Breyer's nomination is more controversial perhaps because of his brother's status as a sitting Supreme Court Justice.)

Because I will be on the road all afternoon, I will not be able to follow closely this scheduled hearing, but others can watch it live via this link.  I am eager to hear reports on whether the questioning of these two nominees are tough or sweet, as well as whether their views on the import and importance of federalism concerns come up.  (I would also love to see Senators Leahy and Paul ask the nominees whether they share my perspective on the proposed Justice Safetly Valve Act of 2013.)

Some recent and older related posts:

May 8, 2013 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, May 06, 2013

New bipartisan House Judiciary Committee task force to examine overcriminalization

Overcrim graphicAs reported in this Wall Street Journal article, Congress is creating a new federal criminal justice task force to address the problem of Congress creating too much federal criminal justice.  The article is headlined "Task Force Aims to Lighten Criminal Code: Bipartisan Congressional Initiative Targets Bloated Federal Provisions Cited by Critics for Driving Up Incarceration Rates," and here are excerpts:

Congress plans this week to create a new, bipartisan task force to pare the federal criminal code, a body of law under attack from both parties recently for its bloat.

The panel, which will be known as the House Committee on the Judiciary Over-Criminalization Task Force of 2013, will comprise five Republicans and five Democrats.  It marks the most expansive re-examination of federal law since the early 1980s, when the Justice Department attempted to count the offenses in the criminal code as part of an overhaul effort by Congress.

Rep. Bobby Scott (D., Va.) said he expected the committee to work through consensus. "We've been warned it's going to be a working task force and it means we'll have to essentially go through the entire code," he said.

Rep. F. James Sensenbrenner (R., Wis.) a longtime champion of overhauling the code, will lead the task force.  He is expected to reintroduce a bill he has tried to get through several congresses that would cut the size of the criminal code by a third. "Overcriminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of problems," he said.

In a city with deep political divisions, the expansion of federal criminal law has created a coalition of allies from opposite sides of the aisle, including the conservative Heritage Foundation, the libertarian Cato Institute, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and the American Bar Association. Legal experts estimate there are 4,500 criminal statutes and tens of thousands of regulations that carry criminal penalties, including prison.

The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year. In recent years, states have reversed years of steady increases by reducing their prison populations while the number of people held at the federal level has continued to climb.  Federal lawmakers and legal experts attribute part of the continuing increase to the rise in criminal offenses and regulations that carry prison time and the creation of laws that don't require knowledge of wrongdoing.

Democrats have long opposed the growth of parts of the system, blaming mandatory minimums for the increase in the federal prison population, especially the rise in African-American inmates.  For Republicans, the encroachment of federal law into areas that could be handled by the states is a top concern....

Other committee members include Rep. Raul Labrador (R., Idaho) and Rep. Karen Bass (D., Calif.). Recommendations made by the task force will be taken up by the House Judiciary Committee, Chairman Robert Goodlatte (R., Va.) said in an interview.

As the first sentence of this post suggests, I am not especially optimistic about the prospects for a new federal criminal justice entity doing a robust job of curtailing the size and scope of the federal criminal justice system.  Nevertheless, simply the creation of this new task force, as well as its composition and commitment to work via consensus, suggests that at least a few persons inside the Beltway have come to realize there can and should be bipartisan efforts to shrink the considerable costs of the massive modern federal criminal justice system.

May 6, 2013 in Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Should the top 1% get sentenced extra tough for defrauding Social Security?

The question in the title of this post is prompted by this notable report of an interesting federal sentencing proceeding taking place today in Minnesota.  Here are the basics:

A North Oaks couple will be sentenced Monday for defrauding the Social Security Administration of more than $300,000 in medical assistance despite a family net worth of $11 million. James and Cynthia Hood pleaded guilty in October to falsely claiming $332,000 in medical assistance payments for their seriously disabled children over five years.

Prosecutors are recommending a 41- to 50-month sentence for James Hood, but no prison time for Cynthia Hood ecause of the critical role she plays in caring for her two disabled children.  One is autistic and the other has spastic quadriplegic cerebral palsy.

U.S. District Judge Joan Ericksen is expected to sentence the couple in a hearing beginning at 11 a.m. at the federal courthouse in Minneapolis.

The U.S. attorney’s office stated it “does not object to a non-incarcerative sentence for Cynthia Marsalis Hood, which includes home confinement, community service and a fine.” She should normally receive a prison sentence of 27 to 33 months for her conduct, federal prosecutors said in a memorandum last month.

The Hoods’ three children are 15-year-old triplets. Two of them are described by the prosecutors as “severely disabled.” Cynthia Hood sleeps next to one child “on a nightly basis” to keep her airways clear, in addition to helping “with all toileting and bathing needs.”...

The prosecution’s recommendation for a lighter sentence cites specific paragraphs from federal guidelines that indicate Cynthia Hood may have cooperated with the federal investigation. When they pleaded guilty in October, she and her husband paid the U.S. Marshals Service $484,312 as part of the plea agreement....

James Hood is a retired professor at Tulane University in New Orleans. Following Hurricane Katrina in 2005, the couple “decided to relocate to Minnesota to take advantage of the health care and educational resources available for their children,” the court documents state.

Social Security Income (SSI) benefits for a child require that a parent and child have no more than $2,000 in income and assets, excluding a house and vehicle. “SSI is meant to be a resource of last resort,” prosecutors wrote. However, in a benefits interview in February of 2006, Cynthia Hood lied, claiming her husband lived in Louisiana and she was the sole legal guardian of her children, authorities said. She also lied about her assets and said she only had $1,400 in the bank, they said.

She failed to disclose that she and her husband owned a house in Louisiana that they had listed for sale at $278,000, that she held at least 16 bank accounts while he had 68 bank accounts, and that their combined interest income in 2006 was $183,000, prosecutors said.   Her husband also owned a farm in Batavia, Iowa, that consisted of 180 acres of timber and farmland where corn and soybeans grew, with an income in 2005 of $187,910 that included $19,000 in state and federal agricultural payments.

The documents state that Cynthia Hood was purportedly unaware that for three years, they also received Medicaid payments from Louisiana for their children, thereby defrauding both Minnesota and Louisiana at the same time.  The medical payments Hood received in Minnesota included more than $20,000 per year in salary to serve as a personal attendant for her children and $30,000 for a wheelchair-accessible elevator installed in the Hoods’ North Oaks home.

I would like to see the proverbial "book" thrown at these white-collar scoundrals, but I do not see the value or need for that book to include costly federal incarceration for either of these defendants.

In my view, it would be far more fitting to require James Hood to do 3+ years of community service rather than spend time (and taxpayer money) getting three squares and a cot in some low-level federal prison facility.  I think Mr. Hood could and should be ordered as part of probation to helping truly poor people secure the Medicaid funding they deserve or ordered to spend time back in New Orleans helping truly needy folks still struggling with post-Katrina challenges.

UPDATE:  This follow-up press report reports on the the sentencing outcomes for the Hoods, which appear to track the recommendations made by prosecutors:

A wealthy North Oaks woman will serve no prison time for defrauding Medical Assistance of $332,000. On Monday, U.S. District Judge Joan Ericksen sentenced her to probation instead, saying her two severely disabled children “are very, very dependent on you.”

Ericksen ordered Cynthia Hood, 55, to pay a $300,000 fine, but said she was entitled to the lighter sentence because she was not the fraud’s ringleader, cooperated with authorities in investigating her husband, and was essential to caring for the children.

Her husband, James Hood, 69, was sentenced to 3½ years in prison and must pay a $200,000 fine. Erickson called his actions “despicable.”

May 6, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Sunday, May 05, 2013

Notable new Judge Weinstein opinion on child porn sentencing for juve offender

Over the weekend, experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) alerted me to what he called a "new and (again) excellent opinion by Judge Jack Weinstein" in U.S. v. D.M., 12-CR-170 (EDNY May 1, 2013) (available here).  The opinion runs nearly 50 pages, and Mark provided a summary which he has graciously allowed me to post here:

D.M. is a child porn possession case wherein Judge Weinstein imposed straight probation. What is rather unusual about the case (in addition to the sentence imposed) is the fact that the government initially charged the defendant with distribution, which carries a 5-year mandatory minimum, but later allowed the defendant to plead to a simple possession charge in order for the court not to be bound by the mandatory minimum after the defendant successfully completed a couple of polygraphs regarding whether he intended to distribute (as is typical, he had used a peer-to-peer site to obtain the contraband).

The nature of the plea negotiation is quite interesting, and, as Judge Weinstein rightly notes, counsel for both sides should be congratulated for their effort to seek justice, as opposed to the all-so-typical bidding war regarding months' imprisonment that mirrors what occurs in civil settlement negotiations rather than what should occur (and what did occur here). 

Judge Weinstein begins the opinion as follows: “This case illustrates the sensible cooperation of prosecutor, defense, experts and the court to save rather than destroy an adolescent found to have used his computer to view child pornography.”  How many judges can say that in any criminal case that is resolved by plea?  Far, far too few. 

Judge Weinstein ends thus: “The sentence imposed will provide an opportunity for defendant to succeed in therapy, at school, at attaining employment, and at becoming a functioning and law-abiding member of society. A sentence involving incarceration has been considered and is rejected.  All concerned are best served by following this course.”

This is a good read for all, regardless of practice focus. (Of course, those who have clients charged with child porn, it is a particularly good case to read and cite, not the least of which is because it is the first published opinion to discuss in substantive detail the Commission’s new Child Porn report).

May 5, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (19) | TrackBack

Wednesday, May 01, 2013

Is adjective "draconian" fitting for a proposed 13-year prison sentence for insider trader?

DracoThe question in the title of this post is prompted by this lengthy new Bloomberg article about the defense's sentencing submission in a high-profile, white-collar federal sentencing scheduled for later this month.  The Bloomberg article is headlined "Chiasson Seeks Leniency From U.S. Judge Citing Charitable Deeds," and here are excerpts:

Level Global Investors LP co-founder Anthony Chiasson, convicted of an insider-trading scheme that reaped $72 million, asked a judge to give him less time in prison than the 13-year term called for by U.S. sentencing guidelines.

Lawyers for Chiasson, 39, called such a sentence “draconian” in a, April 29 court filing. They urged U.S. District Judge Richard Sullivan in Manhattan to impose an unspecified shorter prison term, saying the alleged crimes were “aberrant” and that Chiasson has led an “exemplary life.”

Defense lawyers Greg Morvillo and Reed Weingarten cited Chiasson’s charitable work, including his effort to save his Catholic Jesuit high school in Portland, Maine, from closure, the creation of a scholarship program for his alma mater, Babson College, and his contributions to the Robin Hood Foundation and the Michael J. Fox Foundation.  “Anthony Chiasson is an extraordinary man,” Morvillo and Weingarten said in a memo to Sullivan. “But for the conduct that brings him before the court, Anthony has led an exemplary life.”

Chiasson, who began his career on Wall Street at Solomon Brothers and left SAC Capital Advisors LP to start the hedge fund, is scheduled to be sentenced May 13.  While U.S. court officials said that based on non-binding guidelines Chiasson should serve 121 to 157 months in prison, his lawyers said the appropriate range is 78 to 97 months.

A Manhattan federal jury in December found Chiasson guilty of five counts of securities fraud and convicted former Diamondback Capital Management LLC portfolio manager Todd Newman of one count of conspiracy and four counts of securities fraud.  Newman is scheduled to be sentenced May 2.  The U.S. alleged that the two portfolio managers were part of a “corrupt chain” of hedge-fund managers and analysts and insiders at technology companies who swapped and traded on illicit tips.  The U.S. said Level Global earned $68 million as a result of the insider trading based on material nonpublic information Chiasson received from Spyridon “Sam” Adondakis, a former Level Global analyst who worked for him. 

Defense lawyers estimated the fund earned $11.7 million as a result of trading in the stocks of Dell Inc. and Nvidia Corp. They disputed the government’s allegation that Chiasson based the transactions on illicit information and argued that federal sentencing guidelines allow prosecutors to inflate profits generated as a result of alleged crimes.  “There is only one reason the range is so high: the guidelines’ unrelenting predisposition to punish profit,” Morvillo and Weingarten said.

Morvillo and Weingarten also argued that Chiasson “should not be required to forfeit gains of any co-conspirators.” They said that the fund earned more than $21.6 million on trades by David Ganek, a Level Global co-founder who was ruled by Judge Sullivan to be an uncharged co-conspirator in the insider- trading scheme.  Adondakis, who pleaded guilty, testified that he didn’t tell Ganek about the source of his tips.  Ganek hasn’t been charged with wrongdoing....

Chiasson’s lawyers argued that he deserves a sentence comparable to others convicted of insider trading, including former Goldman Sachs Group Inc. director Rajat Gupta, who was ordered to serve two years in prison, and former Primary Global Research LLC executive James Fleishman and Michael Kimelman, the co-founder of Incremental Capital LLC, who were both given 30- month prison terms.  In January, a federal appeals court allowed Gupta to remain free while he fights his conviction.  Both Fleishman and Kimelman were recently released from prison.

The adjective draconian is often used now as a synonym for unduly harsh punishments, and I am sure I have sometimes used the term this way in various settings. But the faint-hearted linguistic originalist in me cannot help but note that arguably no prison terms should be really called draconian because incarceration was largely an unknown punishment in achient Greece and Draco the lawgiver was (in)famous for prescribing death as a punishment for both major and minor crimes. (With tongue-in-cheek, I suppose maybe a different (but less real) Draco could be expected to be a proponent of long prison terms, though I this this character probably realized he and his family only narrowly avoid imprisonment in Azkaban.)

Historical and literary references aside, these latest insider-trader, white-collar sentencing cases are surely worth watching closely.  My sense is that, especially with the economy seeming to be improving, there is diminishing public and social pressure to "throw the book" at wall-street types like Anthony Chiasson.  And yet, as the arguments in Chiasson's case highlight, every below-guideline sentence given in major white-collar cases provide a strong defense argument in later cases that only below-guideline sentences are proper pursuant to the sentencing commands of 3553(a).

May 1, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, April 30, 2013

US Sentencing Commission names new executive director

I am very pleased to report, as detailed in this official press release, that a former law school classmate of mine has now been named as the next staff director of the US Sentencing Commission.  (Apparently, the fact that Harvard Law School lacked any kind upper-level sentencing course in the early 1990s did not unduly retard the professional development of some of its students).  Here are the details:

The United States Sentencing Commission announced the appointment of Kenneth P. Cohen as its new Staff Director, succeeding Judith W. Sheon. Cohen has served as the Commission’s General Counsel since February 2007 and previously served as its Director of Legislative Affairs.  His appointment becomes effective on June 2, 2013....

Cohen graduated with highest distinction from the University of Virginia in 1988 and cum laude from the Harvard Law School in 1993.  Previously he served as a credit analyst for Chemical Bank in New York, and he was an associate at the Washington D.C. law firm of Covington & Burling from 1993 to 1997.  He also served at the Commissi on as an attorney advisor to then-commissioner Judge Deanell Tacha, and he served on detail as counsel to Senate Judiciary Committee Chairman Arlen Specter from 2005 to 2006.

The same press release also notes another notable recent new hire on the USSC: "The Commission also last month added Noah D. Bookbinder as Director of Legislative and Public Affairs.  Bookbinder previously served as Chief Counsel for Criminal Justice for the Senate Judiciary Committee, where he worked from 2005 to 2013, and as a Trial Attorney for the United States Department of Justice’s Public Integrity Section from 1999 to 2005.   He graduated summa cum laude from Yale University in 1995 and with distinction from Stanford Law School in 1998 and served as a law clerk to United States District Judge Douglas Woodlock."

April 30, 2013 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, April 27, 2013

"Passive Pedophiles: Are child porn viewers less dangerous than we thought?"

The title of this post is the headline of this notable recent commentary by Emily Bazelon at Slate. Here are excerpts:

Making child pornography is abuse.  What about possessing it? As a group, these offenders — the ones who look but don’t abuse children to create new images — are serving increasingly long prison sentences. In 2004, the average sentence for possessing child pornography was about 4 ½ years. In 2010, it was almost eight years.  Child sex offenders may also be kept in prison beyond their release dates through “civil commitment” if the state deems that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”

It’s hard to feel concern for people (mostly men) who prowl the Internet for sexually abusive images of children, some of whom are very young.  Their crimes aren’t “victimless,” as defense lawyers sometimes argue.  These men create the market for new images.  They are the demand behind the supply.  I’ve written about how hard it is for women who were abused and photographed as girls to know that men are still viewing, and taking pleasure in, the record of their suffering — and about the victims’ efforts to win restitution from these men.

But the main reason Congress has upped the penalties for men who possess child pornography is the deep-seated belief that many of them physically abuse children and that they are highly likely to keep doing so because they can’t stop themselves.  Is that true? I’ve heard it so many times it’s hard to think otherwise.  Yet that premise is contested in a new 468-page report by the U.S. Sentencing Commission (the body Congress established to advise it about federal sentencing law).  The commission did its own research.  It says the federal sentencing scheme for child pornography offenses is out of date and argues that this leads to penalties that “are too severe for some offenders and too lenient for other offenders.”...

This isn’t an easy subject.  Punishments for sex offenders move only in one direction in this country — they get harsher.  But the Sentencing Commission’s critique should get a serious hearing.  Prison comes with a cost for taxpayers as well as the people it incarcerates.  And if there’s increasing hope for effective treatment, as the commission suggests, investing in it could save kids....

Maybe men convicted of possessing child pornography probably reoffend more than the researchers can measure because they don’t tell.  Surely they commit more new crimes than the number they get arrested for, as the commission is careful to say.  The question is how many more.  Do they really pose a different risk in this regard than other criminals do?  The Justice Department “takes issue” with the commission’s conclusions about recidivism and the link between viewing pornography of children and molesting them. These questions won’t be resolved any time soon.  In the meantime, Congress could fix the aspects of child pornography sentencing that both DOJ and the Sentencing Commission see as broken.

April 27, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack