Monday, September 29, 2014
Notable new AG Holder memorandum on charging policies and plea negotiations
I learned over the weekend that last week Attorney General Eric Holder issued a short memo to DOJ lawyers to provide "Guidance Regarding § 851 Enhancements in Plea Negotiations." This full one-page memo, which is dated September 24, 2014, can be downloaded below. Here are its most notable sentences, with my emphasis added:
The Department provided more specific guidance for charging mandatory minimums and recidivist enhancements in drug cases in the August 12, 2013, "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases." That memorandum provides that prosecutors should decline to seek an enhancement pursuant to 21 U.S.C. § 851 unless the "defendant is involved in conduct that makes the case appropriate for severe sanctions," and sets forth factors that prosecutors should consider in making that determination. Whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy. Prosecutors are encouraged to make the§ 851 determination at the time the case is charged, or as soon as possible thereafter. An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty. This is consistent with long-standing Department policy that "[c]harges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant's conduct." "Department Policy on Charging and Sentencing," May 19, 2010.
While the fact that a defendant may or may not exercise his right to a jury trial should ordinarily not govern the determination of whether to file or forego an § 851 enhancement, certain circumstances -- such as new information about the defendant, a reassessment of the strength of the government's case, or recognition of cooperation -- may make it appropriate to forego or dismiss a previously filed § 851 information in connection with a guilty plea. A practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea, however, is inappropriate and inconsistent with the spirit of the policy.
I am inclined to speculate that AG Holder felt a need to issue this short memo in part because of reports that some US Attorneys may have had a "practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea."
Tuesday, September 23, 2014
Highlights from AG Holder's big speech today at the Brennan Center for Justice
As noted in this prior post and as detailed in this official Justice Department press release, Attorney General Eric Holder gave a big speech today in New York at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to Reduce Mass Incarceration." Here are some highlights from a speech that all sentencing fans will want to read in full:
As you know, we gather this afternoon just over a year after the launch of the Justice Department’s Smart on Crime initiative — a series of important changes and commonsense reforms I set in motion last August. Already, these changes are fundamentally shifting our response to certain crime challenges —particularly low-level, nonviolent drug offenses. And this initiative is predicated on the notion that our work as prosecutors must be informed, and our criminal justice system continually improved, by the most effective and efficient strategies available.
After all — as I’ve often said — the United States will never be able to prosecute or incarcerate its way to becoming a safer nation. We must never, and we will never, stop being vigilant against crime — and the conditions and choices that breed it. But, for far too long — under well-intentioned policies designed to be “tough” on criminals — our system has perpetuated a destructive cycle of poverty, criminality, and incarceration that has trapped countless people and weakened entire communities — particularly communities of color....
Perhaps most troubling is the fact that this astonishing rise in incarceration — and the escalating costs it has imposed on our country, in terms both economic and human — have not measurably benefited our society. We can all be proud of the progress that’s been made at reducing the crime rate over the past two decades — thanks to the tireless work of prosecutors and the bravery of law enforcement officials across America. But statistics have shown — and all of us have seen — that high incarceration rates and longer-than-necessary prison terms have not played a significant role in materially improving public safety, reducing crime, or strengthening communities.
In fact, the opposite is often true. Two weeks ago, the Washington Post reported that new analysis of crime data and incarceration rates — performed by the Pew Charitable Trusts, and covering the period of 1994 to 2012 — shows that states with the most significant drops in crime also saw reductions in their prison populations. States that took drastic steps to reduce their prison populations — in many cases by percentages well into the double digits — saw crime go down as well. And the one state — West Virginia — with the greatest increase in its incarceration rate actually experienced an uptick in crime.
As the Post makes clear: “To the extent that there is any trend here, it’s actually that states incarcerating people have seen smaller decreases in crime.” And this has been borne out at the national level, as well. Since President Obama took office, both overall crime and overall incarceration have decreased by approximately 10 percent. This is the first time these two critical markers have declined together in more than 40 years. And although we have a great deal of work to do — and although, last year, some states continued to record growth in their prison populations — this is a signal achievement....
Over the past year, the federal prison population declined by roughly 4,800 inmates — the first decrease we’ve seen in many decades. Even more promising are new internal projections from the Bureau of Prisons. In a dramatic reversal of prior reports — which showed that the prison population would continue to grow, becoming more and more costly, overcrowded, and unsafe — taking into account our new policies and trends, our new projections anticipate that the number of federal inmates will fall by just over 2,000 in the next 12 months — and by almost 10,000 in the year after.
This is nothing less than historic. To put these numbers in perspective, 10,000 inmates is the rough equivalent of the combined populations of six federal prisons, each filled to capacity. Now, these projected decreases won’t result in any prison closures, because our system is operating at about 30 percent above capacity. But my hope is that we’re witnessing the start of a trend that will only accelerate as our Smart on Crime changes take full effect.
Clearly, criminal justice reform is an idea whose time has come. And thanks to a robust and growing national consensus — a consensus driven not by political ideology, but by the promising work that’s underway, and the efforts of leaders like Senators Patrick Leahy, Dick Durbin, Mike Lee, and Rand Paul — we are bringing about a paradigm shift, and witnessing a historic sea change, in the way our nation approaches these issues. ...
The Smart on Crime initiative is in many ways the ultimate expression of my trust in the abilities — and the judgment — of our attorneys on the front lines. And although some have suggested that recent changes in charging and sentencing policies might somehow undermine their ability to induce cooperation from defendants in certain cases, today, I want to make it abundantly clear that nothing could be further from the truth.
As I know from experience — and as all veteran prosecutors and defense attorneys surely recognize — defendant cooperation depends on the certainty of swift and fair punishment, not on the length of a mandatory minimum sentence. Like anyone old enough to remember the era before sentencing guidelines existed and mandatory minimums took full effect, I can testify to the fact that federal guidelines attempted to systematize the kinds of negotiations that were naturally taking place anyway. As our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, often reminds his colleagues, even without the threat of mandatory minimums, it remains in the interests of all attorneys to serve as sound advocates for their clients — and for defendants to cooperate with the government in exchange for reduced sentences.
Far from impeding the work of our prosecutors, the sentencing reforms I’ve mandated have strengthened their discretion. The contention that cooperation is somehow dependent on mandatory minimums is tied to a past at tension with the empirical present, and is plainly inconsistent with history, and with now known facts. After all, as the Heritage Foundation observed earlier this year: “[t]he rate of cooperation in cases involving mandatory minimums is comparable to the average rate in all federal cases.”
Of course, as we refine our approach and reject the ineffective practice of calling for stringent sentences against those convicted of low-level, nonviolent crimes, we also need to refine the metrics we use to measure success; to evaluate the steps we’re taking; and to assess the effectiveness of new criminal justice priorities. In the Smart on Crime era, it’s no longer adequate — or appropriate — to rely on outdated models that prize only enforcement, as quantified by numbers of prosecutions, convictions, and lengthy sentences, rather than taking a holistic view. As the Brennan Center and many others have recognized — and as your landmark report on Federal Prosecution for the 21st Century makes crystal clear — it’s time to shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success....
Your concrete recommendations — that federal prosecutors should prioritize reducing violence, incarceration, and recidivism — are consistent with the aims of the Smart on Crime initiative. The new metrics you propose — such as evaluating progress by assessing changes in local violent crime rates, numbers of federal prisoners initially found in particular districts, and changes in the three-year recidivism rate — lay out a promising roadmap for us to consider. And my pledge to you today is that my colleagues and I will not merely carefully study this critical report — we will use it as a basis for discussion, and a vital resource to draw upon, as we engage in a far-reaching process to develop and codify new success measures — with the aim of cementing recent shifts in law and policy.
One of the key points underscored by your report — and emphasized under the Smart on Crime approach — is the need for the Justice Department to direct funding to help move the criminal justice field toward a fuller embrace of science and data. This is something that we — and especially our Office of Justice Programs and Bureau of Justice Assistance — have taken very seriously throughout the Obama Administration. And nowhere are these ideals more fully embodied — or more promisingly realized — than in our Justice Reinvestment Act and Second Chance Act programs....
Thanks to bipartisan support from Congress, funding for the Justice Reinvestment Initiative has more than quadrupled this year. That, on its own, is an extraordinary indication of the power and importance of this work. And this additional funding is allowing us to launch a new challenge grant program — designed to incentivize states to take the next major step in their reform efforts.
Today, I am pleased to announce that five states — Delaware, Georgia, Louisiana, Ohio, and Oregon — will be receiving these grants, which can be used to expand pre-trial reforms, to scale up swift and certain sanctions, to institute evidence-based parole practices, or a number of other options. I am also pleased to announce that five states have been selected to receive new funding under the Second Chance Act to help reduce recidivism. Georgia, Illinois, Iowa, Minnesota, and Vermont will each be awarded $1 million to meet their recidivism reduction goals. And each will be eligible for an additional $2 million over the next two years if they do so.
September 23, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, September 15, 2014
Effective commentary on Sixth Circuit panel upholding 15-year ACCA sentence for possession of shotgun shells
I am pleased to see that by LawProf Richard M. Re now has posted on his (wonderfully titled) Re's Judicata blog some new critical thoughts about the Sixth Circuit panel ruling late last week in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here). Young rejected an Eighth Amendment claim by the defendant by ruling that a mandatory 15-year federal imprisonment term was not grossly disproportionate for a felon's possession of shotgun shells. I first blogged about the Young ruling here, and I have not (yet) commented further because I was involved in the briefing and argument to the Sixth Circuit as an amicus representing NACDL.
Helpfully, Prof Re's extended post on Young, which is titled "A 'Shell' Game in the Sixth Circuit?", highlights some of my own deep concerns about the ruling. I recommend everyone check out the full post, which gets started this way:
In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note. As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.” The case might go to the Supreme Court on the Eighth Amendment question it raises.
Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency. First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about. A robust clemency tradition would bring those factors to light. Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it — and, in doing so, the court relied on allegations and innuendo instead of judicial findings.
Prior related posts on Young case:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
- Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
September 15, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Congressional Budget Office reports Smarter Sentencing Act would save federal taxpayers $4.36 billion
As reported in this new piece from The Hill, which is headlined "CBO: Drug sentencing reform saves $4B," this is now an official congressional estimate of just how much federal taxpayer monies would be saved if the Smarter Sentencing Act were to become law. Here are the basics:
Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) announced that their bill to reform nonviolent drug sentencing would reduce prison costs by more than $4 billion. “Making smart reforms to our drug sentencing laws will save the taxpayers billions of dollars,” Lee said on Monday.
On Monday, the Congressional Budget Office (CBO) reported that Durbin and Lee’s bill would save the federal government $4.36 billion in prison costs by giving federal judges more discretion in sentencing those convicted of non-violent drug offenses.
“Today’s CBO report proves that not only are mandatory minimum sentences for non-violent drug offenses often unfair, they are also fiscally irresponsible,” Durbin said. “By making the incremental, targeted changes that Senator Lee and I have proposed in our Smarter Sentencing Act, we can save taxpayers billions without jeopardizing public safety.”
This press release from Senator Mike Lee's office provides more context and details about potential SSA savings and the broad support the bill has already garnered:
CBO is the second government agency to conclude that the Durbin-Lee bill would produce billions of dollars in savings. The Department of Justice, which administers our federal prison system, has estimated that the bill would avoid prison costs of nearly $7.4 billion in 10 years and $24 billion in 20 years.
With federal prison populations skyrocketing and approximately half of the nation’s federal inmates serving sentences for drug offenses, the Smarter Sentencing Act would give federal judges more discretion in sentencing those convicted of non-violent drug 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, Major Cities Chiefs Association, the ACLU, Grover Norquist, International Union of Police Associations, the National Organization of Black Law Enforcement Executives, the Leadership Conference on Civil and Human Rights, more than 100 former prosecutors and judges, the NAACP, Association of Prosecuting Attorneys, the Sentencing Project, American Conservative Union, Police Executive Research Forum (PERF), the Council of Prison Locals, Ralph Reed, Open Society Policy Center, American Correctional Association, the American Bar Association, National Black Prosecutors Association, the National Association of Criminal Defense Lawyers, National Task Force to End Sexual and Domestic Violence, Families Against Mandatory Minimums, Texas Public Policy Foundation, and the Constitution Project.
September 15, 2014 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, September 11, 2014
Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
Because I filled an amicus brief on behalf of defendant Edward Young and participated in oral argument as well, I am much too close to the Eighth Amendment issue resolved against the defendant today in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here), to provide any objective analysis and perspective. And rather than provide my biased analysis in this post, let me for now be content to reprint the start the Sixth Circuit panel's per curiam ruling:
Edward Young received a mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer. He came into possession of the shells while helping a neighbor sell her late husband’s possessions. When he eventually discovered them, he did not realize that his legal disability against possessing firearms — resulting from felonies committed some twenty years earlier — extended to ammunition. See 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act (ACCA), Young received a mandatory fifteen-year sentence.
Young now asks this court to conclude that the ACCA, as applied to him, is unconstitutional under the Eighth Amendment because the gravity of his offense is so low as compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment because he lacked notice. Our precedent compels us to reject these claims and to affirm Young’s sentence.
To its credit, the per curiam decision in Young engages somewhat with some Eighth Amendment principles I sought to stress in my amicus efforts in this case, and Judge Stranch authored an extended concurrence discussing the policy arguments against mandatory minimums. But these aspects of the Young opinion do very little to salve my seething aggravation and frustration with this ruling.
A number of judges on the Sixth Circuit have a (somewhat justified) reputation for going to great lengths to bend and extend Eighth Amendment jurisprudence to block state efforts to execute brutal murderers after a state sentencing jury imposed the death penalty. Consequently, I was hopeful (though not optimistic) that at least one member of a Sixth Circuit panel could and would conclude the modern Eighth Amendment places some substantive and judicially enforceable limits on extreme application of extreme federal mandatory minimum prison terms. Apparently not. Though surely not the intent of this ruling, I think the practical message is that one needs to murder someone with ammunition rather than just possess it illegally for the Sixth Circuit to be moved by an Eighth Amendment claim. (I was hoping to save a screed about this ruling for a future post, but obviously this is already a bit too raw for me to be able to hold my blog tongue.)
I am hopeful that the defendant will be interested in seeking en banc review and/or SCOTUS review, and thus I suspect the (obviously uphill) legal fight against this extreme sentence will continue. I plan to continue helping with that fight, and I would be eager to hear from others eager to help as well.
Prior related posts:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
September 11, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack
Tuesday, September 09, 2014
Split Third Circuit panel concludes Allenye error can be harmless
Sixth Amendment fans will want to find the time to check out the Third Circuit's notable opinion today in US v. Lewis, No. 10-2931 (3d Cir. Sept. 9, 2014) (available here). The start of the majority opinion (per Judge Fisher) in Lewis suggest there is not too much of note in the case:
This case requires us to determine the applicable standard of review for situations where a district court has imposed a mandatory minimum sentence based upon facts that were never charged in the indictment or found by a jury beyond a reasonable doubt. Such errors occur when a sentence is imposed in violation of the rule recently set forth in Alleyne v. United States, 133 S. Ct. 2151 (2013). Appellant Jermel Lewis challenges his sentence and contends that the failure of the indictment to charge an Alleyne element, combined with Alleyne error in jury instructions and at sentencing, is structural error. We hold that Alleyne error of the sort alleged here is not structural and is instead subject to harmless or plain error analysis under Federal Rule of Criminal Procedure 52. We conclude that the District Court’s error in Lewis’s case was harmless and will therefore affirm.
But the end of of the dissenting opinion (per Judge Rendell) in Lewis suggests there is a lot more to the matter:
Over a decade ago in Vazquez, I noted that the logic in that decision would mean that the “government can charge and convict a defendant of manslaughter, but sentence him for murder, and, as long as the government produced evidence at trial that would support that sentence, we would not notice or correct the error under [plain error review] and require resentencing in accordance with the jury’s verdict.” 271 F.3d at 130 (Rendell, J. dissenting). Today the majority goes beyond even that dire prediction as it upholds a sentence for a crime different from that of conviction, under de novo review. Under the majority’s reasoning, and contrary to Alleyne, a district court may now sentence a defendant pursuant to an improper mandatory minimum, in violation of the Sixth Amendment, and we would be obligated to uphold the sentence if we, an appellate court, find the evidence at trial to have been sufficient. In short, today’s decision strikes at the very heart of the jury trial and grand jury protections afforded by the Constitution.
But perhaps I am wrong. Perhaps we live in a brave new world where judges may determine what crimes a defendant has committed without regard to his indictment or jury verdict, and sentence him accordingly. Or maybe Alleyne does not really mean what it says, when it proclaims brandishing and carrying offenses to be separate and distinct crimes, and that a defendant is entitled to be sentenced consistent with the jury’s findings. But I take the Supreme Court at its word. Until clearly instructed otherwise, I maintain that different crimes are just that, and district court judges cannot sentence a defendant to an uncharged crime simply because the evidence fits, nor can an appellate panel affirm such a sentence because they find that the evidence fits. I adhere to the principle that both appellate and trial judges are required by the Constitution to respect, and sentence according to, a valid jury verdict, and on this basis I respectfully dissent.
September 9, 2014 in Blakely in Appellate Courts, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Recuenco and review of Blakely error, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, September 03, 2014
"Life sentence for buying marijuana?"
The question and title of this post comes from the headline of this new CNN commentary by Vanita Gupta, who is deputy legal director at the ACLU. An editorial note at the start of this piece provides this background: "CNN's David Mattingly reports on the case of a Missouri man sentenced to life in prison for purchasing marijuana Wednesday at 7 p.m. on Erin Burnett OutFront." And this companion piece, headlined "The price of pot," provides this additional preview:
Penalties for the personal use of marijuana vary across the country, the most severe standing in stark contrast as more states legalize medical and even recreational use. Possession of an ounce of pot in Colorado is penalty-free, but if you’re in Kansas, that same ounce could land you a year in jail and a $2,500 fine.
This week on "Erin Burnett OutFront," CNN's David Mattingly investigates two marijuana cases involving stiff penalties, including one man spending life in prison on pot charges. "OutFront" asks: Does the punishment fit the crime? Watch the two-part "OutFront" investigation Wednesday and Thursday, September 3-4 at 7 p.m. ET.
And now here are now excerpts from the commentary by Vanita Gupta:
Clearly something is broken when a Missouri man named Jeff Mizanskey can be sentenced to die in prison for purchasing seven pounds of marijuana. With two nonviolent marijuana convictions already on his record, Jeff received life without parole under Missouri's three strikes law.
The punishment of growing old and dying behind bars for offenses like Mizanskey's is extreme, tragic, and inhumane. This should outrage us, but it should not surprise us. This country has spent 40 years relentlessly ratcheting up the number of people going to prison and dramatically expanding the time we hold them there. We've spent decades criminalizing people with drug dependency, passing extreme sentencing laws, and waging a war on drugs that has not diminished drug use. Small wonder, then, that even less serious crimes like Mizanskey's marijuana purchase result in costly and cruel sentences....
While many of the lawmakers who passed harsh sentencing laws thought they were doing the right thing, the results are now in: This approach has devastated families and communities, generated high recidivism rates, drained state budgets from more productive investments, and has reinforced generations of poverty and disadvantage that disproportionately fall on communities of color. There were ways to hold Mizanskey and others like him accountable for their actions short of sentencing them to die in prison.
We can and must do better. It's time for states to end the costly criminalization of marijuana and recalibrate sentencing laws so that the punishment actually fits the crime as opposed to a politician's reelection agenda. Public attitudes toward marijuana are rapidly evolving, and a Gallup poll last year found for the first time that a majority of Americans now favor legalization as a better course than criminalization.
Unfortunately, laws and police practices that enforce them are out of step with public opinion. Nationally, nearly half of all drug arrests are for marijuana offenses. At least one person is arrested for marijuana possession every hour in Mizanskey's home state of Missouri, which also wasted nearly $50 million on marijuana enforcement in 2010. Although black people and white people use marijuana at about the same rate, a black person in Missouri was 2.6 times more likely to be arrested for having marijuana than a white person.
The solution is clear. Instead of taxpayers spending millions of dollars on this unnecessary enforcement and keeping folks like Mizanskey in prison for the rest of their lives, states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.
But even if states are not ready to expand their tax base in this manner, state lawmakers need to take a good, hard look at their sentencing laws and eliminate penalties that far outweigh the crimes they seek to punish. It is tempting to think that Mizanskey's case is an anomaly, but that is not the case.
According to a report released by the American Civil Liberties Union last year, there are currently 3,278 people serving life sentences without parole for nonviolent crimes, including marijuana offenses. Many of them, like Mizanskey, are there because of three-strikes laws and mandatory sentencing regimes. These policies force judges to impose excessively cruel sentences and forbid corrections officials from granting early release or parole, even despite exemplary records in prison.
The good news is that there is a growing bipartisan consensus all over the country that our criminal justice system has gone too far and that we can and must safely downsize our prison population. Missouri recently reformed the three strikes law that sentenced Jeff to prison for life. If he were sentenced today, he could have received a significantly shorter sentence and be eligible for parole.
As states like Missouri make these kinds of reforms, we must not forget the people who languish behind bars because of old sentencing laws now thought to be excessive. Smart reforms that correct past injustice should be made retroactive, and governors must use their clemency powers more frequently. Missouri Gov. Jay Nixon should grant clemency to Jeff Mizanskey. Public safety is not served by having him die in prison.
September 3, 2014 in Drug Offense Sentencing, Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Pot Prohibition Issues, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Wednesday, August 20, 2014
Pennsylvania Supreme Court declares $75K mandatory fine constitutionally excessive for $200 theft
Thanks to How Appealing, I just saw this fascinating new unanimous ruling by the Supreme Court of Pennsylvania in Pennsylvania v. Eisenberg, No. (Pa. Aug. 19, 2014) (available here). Here is how the lengthy opinion gets started:
The controlling issue in this unusual direct appeal from a conviction arising under the Gaming Act is whether imposition of a mandatory minimum fine of $75,000 for a conviction of a first-degree misdemeanor theft of $200 violates the prohibition of Article I, Section 13 of the Pennsylvania Constitution against excessive fines. For the reasons set forth below, we conclude that, under the circumstances, the fine imposed indeed is unconstitutionally excessive. Accordingly, we vacate that portion of the judgment of sentence involving the mandatory fine and we remand to the trial court to determine, in its discretion, the appropriate fine to be imposed commensurate with appellant’s offense.
The full ruling is worth a full read by anyone interested in constitutional review of sentences, especially because the ruling turns in part on the fact that the punishment here involved a statutory mandatory term. Here is an excerpt from the heart of the opinion's analysis:
In our view, the fine here, when measured against the conduct triggering the punishment, and the lack of discretion afforded the trial court, is constitutionally excessive. Simply put, appellant, who had no prior record, stole $200 from his employer, which happened to be a casino. There was no violence involved; there was apparently no grand scheme involved to defraud either the casino or its patrons. Employee thefts are unfortunately common; as noted, appellant’s conduct, if charged under the Crimes Code, exposed him to a maximum possible fine of $10,000. Instead, because appellant’s theft occurred at a casino, the trial court had no discretion, under the Gaming Act, but to impose a minimum fine of $75,000 – an amount that was 375 times the amount of the theft....
The Commonwealth argues that the mandatory fine is not constitutionally excessive because a fine serves both to punish and to deter, and in the Legislature’s judgment, the amount here was necessary to accomplish both in light of the public perception of the gaming industry and the significant amount of money exchanged in casinos. We acknowledge that all fines serve the twin purposes of punishment and deterrence. At the same time, however, we note that the extension of the mandatory fine to this offense was adopted in 2010, and it was accompanied by no separate legislative statement of purpose. The only statement of purpose is that attending the initial Gaming Act legislation, i.e., the general statement of purpose to protect the public through regulation of the gaming industry. The Commonwealth cites nothing in the later legislation, its legislative history, or logic to explain the sheer amount of this fine for this particular added offense, and the reason for making the offense subject to a mandatory fine....
[T]he Commonwealth’s reliance on cases in which courts have upheld substantial criminal administrative penalties in light of the Legislature’s dual objectives of punishment and deterrence, is misplaced. In those cases, the fines were tailored, scaled, and in the strictest sense, calculated to their offenses. It is undoubtedly within the Legislature’s discretion to categorize theft from a casino differently than other theft crimes in Pennsylvania, and, in turn, to fashion different penalties. However, the prohibition against excessive fines under Article I, Section 13 requires that the Legislature not lose sight of the fact that fines must be reasonably proportionate to the crimes which occasion them. We hold that, as imposed here, the mandatory fine clearly, palpably and plainly violates the Pennsylvania Constitution.
August 20, 2014 in Fines, Restitution and Other Economic Sanctions, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack
Saturday, August 16, 2014
Texas Gov Rick Perry facing two felony charges carrying significant mandatory minimum prison terms
I know very little about Texas criminal laws and procedures, and I know even less about the political and legal in-fighting that appears to have resulted in yesterday's remarkable indictment of Texas Gov Rick Perry on two state felony charges. But I know enough about mandatory minimum sentencing provisions to know Gov Perry might be looking a significant prison time if he is convicted on either of these charges. This lengthy Dallas Morning News article, headlined "Gov. Rick Perry indicted on charges of abuse of power, coercion," provides some of the political and legal backstory (as well as a link to a copy of the two-page indictment):
Republican Rick Perry, becoming the first Texas governor indicted in almost a century, must spend the final five months of his historically long tenure fighting against felony charges and for his political future. A Travis County grand jury on Friday charged Perry with two felony counts, abuse of official capacity and coercion of a public servant, after he vetoed funding for a county office that investigates public corruption.
Special prosecutor Michael McCrum of San Antonio said he felt confident in the case against Perry and was “ready to go forward.” Perry made no statement, but his general counsel, Mary Anne Wiley, said he was exercising his rights and power as governor. She predicted he would beat the charges. “The veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution. We will continue to aggressively defend the governor’s lawful and constitutional action, and believe we will ultimately prevail,” she said.
The charges set off a political earthquake in the capital city. Democrats said the indictment underscores Perry’s insider dealing and he should step down. Republicans called it a partisan ploy to derail him, especially aimed at his second presidential run that had been gathering momentum.
The case stems from Perry's erasing $7.5 million in state funding last year for the Travis County Public Integrity Unit. He did so after District Attorney Rosemary Lehmberg, a Democrat, rejected his calls to resign after her drunken driving conviction.
Perry could appear as early as next week to face arraignment on the charges. Abuse of official capacity is a first-degree felony with punishment ranging from five to 99 years in prison, and coercion of a public servant is a third-degree felony with a penalty of two to 10 years.
In announcing the indictment, McCrum said he recognized the importance of the issues at stake. “I took into account the fact that we’re talking about the governor of a state and the governor of the state of Texas, which we all love,” he said. “Obviously, that carries a level of importance. But when it gets down to it, the law is the law.”...
The allegations of criminal wrongdoing were first filed by Craig McDonald, director of the nonprofit campaign watchdog group Texans for Public Justice. McDonald has maintained that using veto threats to try to make another elected official leave was gross abuse of office. “The grand jury decided that Perry’s bullying crossed the line into lawbreaking,” he said Friday. “Any governor under felony indictment ought to consider stepping aside.”
State Republican Party chairman Steve Munisteri decried the prosecution as politically motivated. “Most people scratch their heads and wonder why we’re spending taxpayer dollars to try to put somebody in jail for saying that they didn’t feel it was appropriate to fund a unit where the person in charge was acting in a despicable way,” Munisteri said....
A judge from conservative Williamson County, a suburban area north of Austin, appointed McCrum to look into the case. The current grand jury has been studying the charges since April. McCrum worked for 10 years as a federal prosecutor, starting during President George H.W. Bush’s administration. He’s now in private practice, specializing in white-collar crimes....
McCrum, a former federal prosecutor, said he interviewed up to 40 people as part of his investigation, reviewed hundreds of documents and read dozens of applicable law cases. He dismissed the notion that politics played any part. “That did not go into my consideration whatsoever,” he said. Asked why he never called Perry before the grand jury, McCrum said, “That’s prosecutorial discretion that I had.”
Of course, what makes this story so very notable from a criminal justice perspective is the extraordinary power and discretion that the special prosecutor had in developing these charges and the extraordinary impact that mere an indictment seems likely to have on Gov Perry professional and personal life.
Regular readers know that former commentor Bill Otis and I often went back-and-forth in the comments concerning my concerns about (and his support for) federal prosecutors have very broad, unchecked, hidden and essentially unreviewable charging and bargaining powers. For this reason, I was especially interested to see that Bill now already has these two new posts up over at Crime and Consequences assailing the charging decision by the (former federal) prosecutor in the Perry case: The World's Most Absurd Indictment and Politics & Prosecution, a Toxic Brew. I am hopeful (though not really optimistic) that the Perry indictment might help Bill better appreciate why I have such deep concerns about prosecutorial discretion as exercised by federal prosecutors (especially when their powers are functionally increased by severe mandatory minimum sentencing provisions).
Thursday, August 14, 2014
US Sentencing Commission finalizes its policy priorities for coming year
As detailed in this official press release, the "United States Sentencing Commission today unanimously approved its list of priorities for the coming year, including consideration of federal sentences for economic crimes and continued work on addressing concerns with mandatory minimum penalties." Here is more from the release:
The Commission once again set as its top priority continuing to work with Congress to implement the recommendations in its 2011 report on federal mandatory minimum penalties, which included recommendations that Congress reduce the severity and scope of some mandatory minimum penalties and consider expanding the “safety valve” statute which exempts certain low-level non-violent offenders from mandatory minimum penalties....
The Commission also set out its intention to consider potential changes to the guidelines resulting from its multi-year review of federal sentences for economic crimes. “For the past several years, we have been reviewing data and listening to key stakeholders to try to determine whether changes are needed in the way fraud offenses are sentenced in the federal system, particularly in fraud on the market cases,” Saris said. “We look forward to hearing more this year from judges, experts, victims, and other stakeholders on these issues and deciding whether there are ways the economic crime guidelines could work better.”
The Commission will continue to work on multi-year projects to study recidivism comprehensively, including an examination of the use of risk assessment tools in the criminal justice system. The Commission will also consider whether any amendments to the guidelines or statutory changes are appropriate to facilitate consistent and appropriate use of key sentencing terms including “crime of violence” and “drug trafficking offense.”
The Commission is undertaking new efforts this year to study whether changes are needed in the guidelines applicable to immigration offenses and whether structural changes to make the guidelines simpler are appropriate, as well as reviewing the availability of alternatives to incarceration, among other issues.
The official list of USSC priorities is available at this link, and I found these items especially noteworthy (in addition to the ones noted above):
(4) Implementation of the directive to the Commission in section 10 of the Fair Sentencing Act of 2010, Pub. L. 111–220 (enacted August 3, 2010) (requiring the Commission, not later than 5 years after enactment, to “study and submit to Congress a report regarding the 3 impact of the changes in Federal sentencing law under this Act and the amendments made by this Act”)....
(10) Beginning a multi-year effort to simplify the operation of the guidelines, including an examination of (A) the overall structure of the guidelines post-Booker, (B) cross references in the Guidelines Manual, (C) the use of relevant conduct in offenses involving multiple participants, (D) the use of acquitted conduct in applying the guidelines, and (E) the use of departures.
Sunday, August 03, 2014
Significant AG Holder comments asserting severe rigid sentences are not needed to induce cooperation
Attorney General Eric Holder's significant speech at the National Association of Criminal Defense Lawyers' Annual Meeting made headlines mostly due to his expression of concern about the use of risk assessment instruments in initial sentencing determinations (as previously discussed here). I will discuss AG Holder's nuanced comments on this front in some future posts.
Before discussing the use of risk assessment instruments in initial sentencing determinations, I first want to recommend that everyone read all of AG Holder's NACDL speech, which is available here, because it includes a number of notable passages addressing a number of notable sentencing topics. Of particular note, these paragraphs seek to debunk the oft-heard statements that reform of mandatory minimum sentencing provisions could prevent prosecutors from securing needed cooperation from defendants:
[T]he Smart on Crime initiative has led us to revise the Justice Department’s charging policies with regard to mandatory minimum sentences for certain federal, drug-related crimes — so that sentences will be determined based on the facts, the law, and the conduct at issue in each individual case. This means that the toughest penalties will now be reserved for the most serious criminals. Over the last few months — with the Department’s urging — the U.S. Sentencing Commission has taken additional steps to codify this approach, amending federal sentencing guidelines for low-level drug trafficking crimes to reduce the average sentence by nearly 18 percent. Going forward, these new guidelines will impact almost 70 percent of people who are convicted of these offenses. And last month, the Commission voted to allow judges to apply these revised guidelines retroactively in cases where reductions are warranted.
Now, some have suggested that these modest changes might somehow undermine the ability of law enforcement and prosecutors to induce cooperation from defendants in federal drug cases. But the reality is that nothing could be further from the truth.
Like anyone who served as a prosecutor in the days before sentencing guidelines existed and mandatory minimums took effect, I know from experience that defendant cooperation depends on the certainty of swift and fair punishment, not on the disproportionate length of a mandatory minimum sentence. As veteran prosecutors and defense attorneys surely recall — and as our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, has often reminded his colleagues — sentencing guidelines essentially systematized the kinds of negotiations that routinely took place in cases where defendants cooperated with the government in exchange for reduced sentences. With or without the threat of a mandatory minimum, it remains in the interest of these defendants to cooperate. It remains in the mutual interest of defense attorneys and prosecutors to engage in these discussions. And any suggestion that defendant cooperation is somehow dependent on mandatory minimums is plainly inconsistent with the facts and with history.
Far from impeding the work of federal prosecutors, these sentencing reforms that I have mandated represent the ultimate expression of confidence in their judgment and discretion. That’s why I’ve called on Congress to expand upon and further institutionalize the changes we’ve put in place — so we can better promote public safety, deterrence, and rehabilitation while saving billions of dollars and reducing our overreliance on incarceration.
Friday, August 01, 2014
Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform
I have previously questioned the assertion that significant federal sentencing reform is inevitable, and the failure of the current Congress to make serious progress on the Smarter Sentencing Act or other notable pending federal sentencing reform proposals has reinforced my generally pessimistic perspective. But this effective new article from the Washington Examiner, headlined "2016 contenders are lining up behind sentencing reform --- except this one Tea Partier," provides further reason to be optimistic that federal sentencing reform momentum will continue to pick up steam in the months ahead. Here are highlights:
Sen. Marco Rubio hasn’t hammered out a firm position on mandatory minimum sentencing laws yet. A year ago, that would have been perfectly normal for a Republican senator and rumored presidential contender. But over the last months, most of the potential Republican nominees have voiced support for policy changes that historically might have gotten them the toxic “soft on crime” label. These days, though, backing prison reform lets Republicans simultaneously resurrect compassionate conservatism and reach out to voters who wouldn’t typically find much to love from the GOP.
Rep. Paul Ryan is one of the latest potential presidential candidates to tout mandatory minimum sentencing reform as part of a conservative strategy to reduce poverty.... [H]e has debuted a new anti-poverty agenda that includes support for the Smarter Sentencing Act, a bill with a Senate version co-sponsored by Senate Majority Whip Dick Durbin, D-Ill., and Tea Party favorite Sen. Mike Lee, R-Utah, and a House version from Rep. Bobby Scott, D-Va., and Raul Labrador, R-Idaho. That bill would shorten some of the mandatory minimum sentence lengths and also would expand the “safety valve” that keeps some non-violent drug offenders from facing mandatory sentences.
“It would give judges more discretion with low-risk, non-violent offenders,” Ryan said in a speech at conservative think tank American Enterprise Institute. “All we’re saying is, they don’t have to give the maximum sentence every time. There’s no reason to lock someone up any longer than necessary.”
Ryan is the latest in a string of potential presidential contenders to get on board with prison reform. But it’s likely the state of criminal justice reform would look different without Texas Gov. Rick Perry. In 2007, the Texas legislature adopted a budget designed to reduce the number of people incarcerated and spend more money on treatment. Since then, the state has closed three adult and six juvenile prisons, crime rates have reached levels as low as in the 1960s, and recidivism rates have dipped.
Perry has used his national platform to tout this reform — at a Conservative Political Action Conference (panel with Americans for Tax Reform President Grover Norquist, for instance, he said real conservatives should look to shut down prisons and save money — and other states have adopted reforms following the Lone Star State model.
Sen. Rand Paul, another 2016 favorite, has been one of prison reform’s most vocal boosters. In an April 2013 speech at Howard University — a speech that got mixed reviews — he drew plaudits for criticizing mandatory minimum sentencing laws. “Our federal mandatory minimum sentences are simply heavy-handed and arbitrary,” he said, per CNS News. “They can affect anyone at any time, though they disproportionately affect those without the means to fight them. We should stand and loudly proclaim enough’s enough.”
That speech took prison reform one step closer to becoming a national conservative issue, rather than just the purview of state-level think tank wonks and back-room chats among social conservative leaders.
And, of course, New Jersey Gov. Chris Christie addressed the issue in his second inaugural, connecting support for prison reform to his pro-life convictions.
None of this support means that legislation like the Smarter Sentencing Act has good odds in this Congress. Brian Phillips, a spokesman for Lee, said that since House Majority Leader Eric Cantor’s astounding primary loss, House Republicans have become more gun-shy about any sort of politically complicated reform measures. And GovTrack.us gives that bill a 39 percent chance of being enacted.
But that doesn’t mean conservative appetite for prison reform will abate. Molly Gill, government affairs counsel for Families Against Mandatory Minimums, said interest in the issue is growing. “ It can’t go away,” she said. “If Congress doesn’t fix it now, it’s still going to be a problem next year. It’s going to be a problem at the Department [of Justice], it’s going to be a problem in appropriations committees, it’s going to be a problem for the Commerce, Justice and Finance subcommittees when they’re doing appropriations bills — because there is no more money coming, and we’re just going to keep stuffing people into overcrowded prisons.”...
For now, most of the Senate Republicans publicly eyeing 2016 bids have co-sponsored Lee and Durbin’s Smarter Sentencing Act — except Rubio, who said his office is examining it. “I haven’t looked at the details of it yet and taken a formal position,” he said. “We study those things carefully.”
Some recent and older related posts:
- Rep. Ryan's new anti-poverty proposal calls for federal sentencing and prison reforms
- Others starting to appreciate "Rand Paul, Criminal Justice Hero"
- Gov Chris Christie talking up drug sentencing reform as a pro-life commitment
- Senator Rand Paul and Governor Chris Christine continue to make the case for criminal justice reforms
- "4 Reasons Conservatives Are Embracing Prison Reform"
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
- Newt Gingrich saying again that "backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause"
- "Right on Crime: A Return to First Principles for American Conservatives"
Monday, July 28, 2014
US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice
Regular readers are likely familiar with the remarkable series of opinions issued by US District Judge John Gleeson in which he has forcefully expressed deep concerns with how federal prosecutors sometimes exercise their charging and bargaining powers in the application of mandatory minimum sentencing provisions. But, as reported in this New York Times piece, headlined "Citing Fairness, U.S. Judge Acts to Undo a Sentence He Was Forced to Impose," Judge Gleeson's latest opinion discusses how federal prosecutors ultimately aided his efforts to undo an extreme mandatory minimum sentence. Here are the basics:
Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts. But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.
As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.
More recently, Judge Gleeson began his own campaign on Mr. Holloway’s behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway’s convictions. The payoff from Judge Gleeson’s efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.
“Prosecutors also use their power to remedy injustices,” Judge Gleeson wrote in a memorandum released on Monday. “Even people who are indisputably guilty of violent crimes deserve justice, and now Holloway will get it.”...
Mr. Holloway was charged in 1995 with three counts of carjacking and using a gun during a violent crime (even though it was an accomplice, and not Mr. Holloway, who carried the gun), along with participating in the chop shop. The government offered him a plea deal of about 11 years. He turned it down after his lawyer assured him he could win at trial. Mr. Holloway did not win.
For the first conviction on the gun count, the law required Mr. Holloway to receive five years. But for the second and third convictions, the law required 20 years for each one, served consecutively, a requirement known as “stacking,” which some judges and lawyers argue sounds like a recidivism provision, although it can be applied for crimes, like Mr. Holloway’s, committed hours apart that are part of the same trial.
None of Mr. Holloway’s co-defendants, who all pleaded guilty, received more than six years. At Mr. Holloway’s sentencing in 1996, Judge Gleeson said that “by stripping me of discretion,” the stacked gun charges “require the imposition of a sentence that is, in essence, a life sentence.” (The remainder of the 57 years was the 12 years required for the three carjackings.)...
At a hearing on the Holloway case this month, an assistant United States attorney, Sam Nitze, said that “this is both a unique case and a unique defendant,” citing his “extraordinary” disciplinary record and his work in prison. Also, he said, three of Mr. Holloway’s carjacking victims have said that the 20 years that Mr. Holloway had served in prison was “an awfully long time, and people deserve another chance.” Mr. Nitze agreed to vacate the two convictions, while emphasizing that this should not be taken as indicative of Ms. Lynch’s view on the stacking provision in other cases.
In his opinion issued last week, Judge Gleeson said that Mr. Holloway’s sentence illustrated a “trial penalty,” where those willing to risk trial could be hit with mandatory minimum sentences “that would be laughable if only there weren’t real people on the receiving end of them.”
Judge Gleeson's full 11-page opinion in Holloway v. US, No. 01-CV-1017 (E.D.N.Y. July 28, 2014)(available for download below), is a must-read for lots of reasons. The opinion is not be easily summarized, but this part of its conclusion provide a flavor of what comes before:
It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s nothing we can do” about an excessive sentence after all avenues of judicial relief have been exhausted. Doing justice can be much harder. It takes time and involves work, including careful consideration of the circumstances of particular crimes, defendants, and victims – and often the relevant events occurred in the distant past. It requires a willingness to make hard decisions, including some that will be criticized.
This case is a perfect example. Holloway was convicted of three armed robberies. He deserved serious punishment. The judgment of conviction in his case was affirmed on direct review by the Supreme Court, and his collateral attack on that judgment failed long ago. His sentence was far more severe than necessary to reflect the seriousness of his crimes and to adequately protect the community from him, but no one would criticize the United States Attorney if she allowed it to stand by doing nothing. By contrast, the decision she has made required considerable work. Assistant United States Attorney Nitze had to retrieve and examine a very old case file. He had to track down and interview the victims of Holloway’s crimes, which were committed 20 years ago. His office no doubt considered the racial disparity in the use of § 924(c), and especially in the “stacking” of § 924(c) counts. He requested and obtained an adjournment so his office could have the time necessary to make an extremely important decision....
This is a significant case, and not just for Francois Holloway. It demonstrates the difference between a Department of Prosecutions and a Department of Justice. It shows how the Department of Justice, as the government’s representative in every federal criminal case, has the power to walk into courtrooms and ask judges to remedy injustices....
A prosecutor who says nothing can be done about an unjust sentence because all appeals and collateral challenges have been exhausted is actually choosing to do nothing about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.
Numerous lawyers have been joining pro bono movements to prepare clemency petitions for federal prisoners, and indeed the Department of Justice has encouraged the bar to locate and try to help deserving inmates. Those lawyers will find many inmates even more deserving of belated justice than Holloway. Some will satisfy the criteria for Department of Justice support, while others will not. In any event, there’s no good reason why all of them must end up in the clemency bottleneck. Some inmates will ask United States Attorneys for the kind of justice made possible in this case, that is, justice administered not by the President but by a judge, on the consent of the Department of Justice, in the same courtroom in which the inmate was sentenced. Whatever the outcome of those requests, I respectfully suggest that they should get the same careful consideration that Ms. Lynch and her assistants gave to Francois Holloway.
Thursday, July 24, 2014
Rep. Ryan's new anti-poverty proposal calls for federal sentencing and prison reforms
As reported in this official press release, House Budget Committee Chair Paul Ryan today "released a new discussion draft, 'Expanding Opportunity in America,' [which] proposes a new pilot project to strengthen the safety net and discusses a number of reforms to the EITC, education, criminal justice, and regressive regulation." Notably, an extended section of this impressive document (Chapter 4, which runs nearly 10 of the draft's 70+ pages) is focused on criminal justice reforms. Here are segments from this portion of the draft:
About 2.2 million people are currently behind bars — a more than 340 percent increase since 1980. As a result, we spend about $80 billion on corrections at all levels of government — an inflation-adjusted increase of over 350 percent in that same period. This growing cost burden on society is a cause for concern. But perhaps what’s most troubling is the effect on individuals and families....
[Federal sentencing reform] seeks to tap this overlooked potential and ameliorate the collateral impact on children and families. Although most offenders are in state prisons or local jails, successful reforms at the federal level could encourage states and local governments to follow their example. This discussion draft explores a number of reforms on multiple fronts — how we sentence individuals to prison, how offenders are treated inside prison, and how society helps them to reintegrate afterwards.
Public safety is priority No. 1, so these reforms would apply to only non-violent and low-risk offenders. The punishment should fit the crime, but in many cases the punishment of incarceration extends beyond prison time. Once people have paid their debt to society, they should be able to move on. In that spirit, this proposal suggests three possible reforms:
• Grant judges more flexibility within mandatory-minimum guidelines when sentencing non-violent drug offenders.
• Implement a risk- and needs-assessment system in federal prisons while expanding enrollment in rehabilitative programming to reduce recidivism. Allow non-violent and low-risk inmates to use enrollment to earn time off their prison stay towards prerelease custody.
• Partner with reforms at the state and local level....
Unlike state inmates, only 6 percent of federal inmates are violent offenders, while another 15 percent are guilty of weapons offenses. In fact, most federal prisoners—nearly 51 percent — are serving time for a drug-related offense, and data from the U.S. Sentencing Commission shows that most of these federal drug offenders are in the lowest criminal-history category. But under current law, a single gram of crack cocaine could be all that separates a convict from a less-than-five-year sentence and a 40-year sentence. Rigid and excessive mandatory sentences for low-level drug offenders, like these, may add to an already over-crowded prison system without appreciably enhancing public safety.
There are also economic and social consequences to unreasonably long sentences. Not only do they put undue burdens on families, but they may actually make people more likely to return to crime. As Justice Fellowship notes, “Rather than encouraging criminals to become peaceful, productive citizens, prison culture often has the opposite effect, operating as a graduate school for crime.” The federal government should follow the lead of several states and consider how sentencing guidelines, including alternative forms of detention, can both prevent crime and steer non-violent, low-risk drug offenders away from the addictions and networks that make them more likely to reoffend....
Although crime rates have fallen since the 1980s, the unintended consequence of these mandatory minimums is that some low-risk, non-violent offenders serve unreasonably long sentences....
A major challenge of criminal-justice reform is lowering the high rates of recidivism. High rates of recidivism are not only costly to the taxpayer and dangerous for society; they present a missed opportunity to bring more individuals into society as productive and contributing members....
[Proposed] reforms seek to put a greater focus upon rehabilitation and reintegration. Although the federal government’s reach is limited, these reforms would give judges the discretion they need to prevent nonviolent offenders from serving unreasonably long sentences; they would align inmates’ incentives to help reduce recidivism; and they would partner with states and community groups to expand their life-affirming work.
July 24, 2014 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack
Friday, July 18, 2014
Split Iowa Supreme Court declares all mandatory juve sentencing terms violate state constitution
Thanks to a helpful reader, I learned this afternoon that the Iowa Supreme Court today declared unconstitutional pursuant to the Iowa Constitution the imposition of any and all mandatory terms of imprisonment on juvenile offenders. The majority ruling in Iowa v. Lyle, No. 11–1339 (Iowa July 18, 2014)
In this appeal, a prison inmate who committed the crime of robbery in the second degree as a juvenile and was prosecuted as an adult challenges the constitutionality of a sentencing statute that required the imposition of a mandatory seven-year minimum sentence of imprisonment. The inmate was in high school at the time of the crime, which involved a brief altercation outside the high school with another student that ended when the inmate took a small plastic bag containing marijuana from the student. He claims the sentencing statute constitutes cruel and unusual punishment in violation of the State and Federal Constitutions when applied to all juveniles prosecuted as adults because the mandatory sentence failed to permit the court to consider any circumstances based on his attributes of youth or the circumstances of his conduct in mitigation of punishment. For the reasons expressed below, we hold a statute mandating a sentence of incarceration in a prison for juvenile offenders with no opportunity for parole until a minimum period of time has been served is unconstitutional under article I, section 17 of the Iowa Constitution. Accordingly, we vacate the sentence and remand the case to the district court for resentencing. Importantly, we do not hold that juvenile offenders cannot be sentenced to imprisonment for their criminal acts. We do not hold juvenile offenders cannot be sentenced to a minimum term of imprisonment. We only hold juvenile offenders cannot be mandatorily sentenced under a mandatory minimum sentencing scheme.
The majority opinion supporting this ruling runs nearly 50 pages and, unsurprisingly, has a lot to say about the US Supreme Court's recent Eighth Amendment work in Graham and Miller. In addition, two forceful dissents follow the majority's opinion in Lyle, and here is the heart of one of the dissenting opinions:
By holding Lyle’s seven-year mandatory minimum sentence for his violent felony is cruel and unusual punishment and unconstitutional under article I, section 17 of the Iowa Constitution, rather than under the Eighth Amendment, the majority evades review by the United States Supreme Court. As Justice Zager observes, no other appellate court in the country has gone this far. Our court stands alone in taking away the power of our elected legislators to require even a seven-year mandatory sentence for a violent felony committed by a seventeen-year-old. Will the majority stop here? Under the majority’s reasoning, if the teen brain is still evolving, what about nineteen-year olds? If the brain is still maturing into the mid-20s, why not prohibit mandatory minimum sentences for any offender under age 26? As judges, we do not have a monopoly on wisdom. Our legislators raise teenagers too. Courts traditionally give broad deference to legislative sentencing policy judgments. See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“We give the legislature deference because ‘[l]egislative judgments are generally regarded as the most reliable objective indicators of community standards for purposes of determining whether a punishment is cruel and unusual.’ ” (quoting Bruegger, 773 N.W.2d at 873)). Why not defer today?
July 18, 2014 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Sunday, July 13, 2014
USSC Chair reiterates Commission's sentencing reform message to House Judiciary Committee
This past Friday, US Sentencing Commission Chair, Chief Judge Patti Saris, testified at this hearing of Over-Criminalization Task Force of the Committee on the Judiciary of the US House of Representatives. Her lengthy written testimony is available at this link, and here is a summary paragraph from the Chair's discussion of recommended mandatory minimum reforms:
Based on [our] analysis, the Commission continues to recommend unanimously that Congress consider a number of statutory changes. The Commission recommends that Congress reduce the current statutory mandatory minimum penalties for drug trafficking. We further recommend that the provisions of the Fair Sentencing Act of 2010, which Congress passed to reduce the disparity in treatment of crack and powder cocaine, be made retroactive. Finally, we recommend that Congress consider expanding the so-called “safety valve,” allowing sentences below mandatory minimum penalties for non-violent low-level drug offenders, to offenders with slightly greater criminal histories than currently permitted.
Republican and Democratic members of this Task Force and others in Congress have proposed legislation to reform certain mandatory minimum penalty provisions. The Commission strongly supports these efforts to reform this important area of the law.
Notably, as this official press release highlights, Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee, echoed similar messages in he testimony to the House Task Force:
A representative of the Judicial Conference today told a House Judiciary Task Force that policy initiatives curbing over-federalization of criminal law, reforming mandatory minimum sentences and amending the Sentencing Guidelines have the support of the Judicial Conference, but that the Judiciary currently lacks the resources to shoulder resulting increased workload.
“Policy-makers must not create a new public safety crisis in our communities by simply transferring the risks and costs from the prisons to the caseloads of already strained probation officers and the full dockets of the courts,” said Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee. “Lasting and meaningful solutions can be attained only if the branches work together to ensure that the correct cases are brought into the federal system, just sentences are imposed, and offenders are appropriately placed in prison or under supervision in the community.”
Wednesday, July 09, 2014
"States Push For Prison Sentence Overhaul; Prosecutors Push Back"
The title of this post is the headline of this new NPR story highlighting who is at the forefront of efforts to thwart sentencing reforms these days. Here are excerpts:
Some red states like Louisiana and Texas have emerged as leaders in a new movement: to divert offenders from prisons and into drug treatment, work release and other incarceration alternatives. By most counts, Louisiana has the highest incarceration rate in the country. In recent years, sentencing reformers in the capital, Baton Rouge, have loosened some mandatory minimum sentences and have made parole slightly easier for offenders to get.
But as reformers in Louisiana push for change, they're also running into stiffening resistance — especially from local prosecutors. It's all happening as the number of Americans behind bars has started to decline. There are multiple reasons for that, including crime rates that have been dropping since the 1990s, as well as the impact of the Supreme Court's 2011 requirement that tough-on-crime California reduce its prison population.
And there's another factor: a growing bipartisan consensus for sentencing reform. Local politicians are getting political cover for those efforts from conservative groups like Right on Crime. "It is a growing consensus on the right that this is the direction we want to be going," says Kevin Kane, of the libertarian-leaning Pelican Institute for Public Policy in Louisiana. "Most people will point to, 'Well, it's saving money, and that's all conservatives care about.' But I think it goes beyond that."
Kane says libertarians are interested in limiting the government's power to lock people away, while the religious right likes the idea of giving people a shot at redemption — especially when it comes to nonviolent drug offenders.
Still, not everyone is embracing these ideas. In some places, there's been considerable pushback — especially when the idea of eliminating prison time for drug offenders arises....
Liz Mangham, a lobbyist, has represented the conservative sentencing reformers in Baton Rouge. While they've made progress, she says they appeared to cross a red line this spring with a bill to step down Louisiana's stiff penalties for possession of marijuana. Under current law, possession is a felony on the second offense. A third may get you as much as 20 years in prison. Mangham recalls the scene when the bill came up for a crucial hearing.
"The Judiciary Committee room was full. The anteroom across the hall, which is twice the size, was full, and the halls were full ... of [district attorneys] and sheriffs coming down to oppose the bill," she says. The bill died on the spot. In Louisiana and other parts of the South, district attorneys and sheriffs — who Mangham calls "the courthouse crowd" — have a lot of political clout at the state level. She says it's understandable why most sheriffs opposed the bill, because they house state prisoners in parish jails and every prisoner represents a payment from the state.
"So when you're making money to warehouse prisoners, why on earth would you be in favor of sentencing reform?" Mangham says.
But the district attorneys' opposition is more complex — and interesting. And it's emblematic of a growing conflict that's taking place nationally between sentencing reformers and prosecutors.
The vast majority of criminal cases in America are resolved through plea bargains. Defendants plead guilty out of fear of getting a worse sentence if they don't. Plea bargains jumped above 90 percent in the 1980s and '90s, in part because a wave of harsh new sentences for drug offenses strengthened prosecutors' hands when bargaining with defendants.
"For a DA to have the ability to dangle over someone's head 10, 20 years in jail, that provides them with tremendous leverage to pretty much get whatever they want," says Louisiana State Sen. J.P. Morrell, a Democrat from New Orleans and former public defender.
Morrell was one of the sponsors of the marijuana sentencing reform bill that failed in Baton Rouge. He says one of the benefits of that reform would have been a reduction in the power of prosecutors to, as Louisiana courthouse slang puts it, "bitch" a defendant. A reference to Louisiana's habitual offender law, it refers to a DA threatening to use past convictions — often for marijuana possession — to multiply the length of a defendant's potential sentence.
But what Morrell sees as a problem, prosecutors regard as a necessary tool. That's because many states are now considering similar reductions to mandatory minimum sentences for drug offenses, and Congress is considering a similar move for federal drug charges. Prosecutors insist they use the threat of harsh sentences responsibly but say it's a tool they can't do without. Last fall, at a hearing in the U.S. Senate Judiciary Committee, the then-executive director of the National District Attorneys Association, Scott Burns, warned against rolling back drug sentences.
"Why now? With crime at record lows, why are we looking at sweeping changes?" Burns said. He endorsed "smart on crime" reforms such as drug courts, but he cautioned against depriving prosecutors of "one of our most effective sticks."
John de Rosier, the district attorney of Calcasieu Parish, La., says "we have people all the time that we know have been involved in robberies, rapes and murders. We haven't been able to prove our cases, but we're in court with them for second-offense possession of marijuana. What do you think we're going to do?"
That's commonly referred to as "prosecutorial discretion," and it's an argument that alarms sentencing reformers like Morrell. "That level of discretion ought to be terrifying to people," Morrell says. "If you cannot convict someone of a murder, of a robbery, whatever, the fact that you have a disproportionate backup charge to convict them anyway kind of defeats the purpose of due process."
Tuesday, July 08, 2014
Even as its prospects dim, Smarter Sentencing Act is impacting federal sentencing proceedings
The lack of serious congressional action on the Smarter Sentencing Act now nearly six months after the SSA passed through the Senate Judiciary Committee with bipartisan support (basic here) has led me to conclude that the prospect of the SSA's enactment into law this year is now quite dim. Nevertheless, as highlighted by this local story from Maine, the SSA is still impacting the work of federal sentencing courts. The article is headlined "Monroe marijuana farm patriarch sentence postponed for Smarter Sentencing Act passage," and here are the basics:
A federal judge postponed the sentencing of a Waldo County man found guilty in November of operating a large-scale, indoor marijuana farm with his family to allow for the possible passage of the Smarter Sentencing Act, which could decrease his sentence. James F. Ford, 58, of Monroe was convicted by a jury in November of one count each of conspiracy to manufacture 100 or more marijuana plants, manufacturing 100 or more marijuana plants, maintaining a drug-involved place and being a felon in possession of a firearm.
The Smarter Sentencing Act, introduced by U.S. Sens. Mike Lee, R-Utah, and Richard Durbin, D-Illinois, is a bill making its way through the Senate that would reduce mandatory minimum sentences for some nonviolent drug offenders and allow those incarcerated to apply for sentence reductions, among other changes to mandatory federal sentencing laws.
“The Smarter Sentencing Act may have a drastic effect on Mr. Ford’s sentence,” states the motion filed by defense attorney Hunter Tzovarras of Bangor. ”In the interest of fairness and justice, it is respectfully requested the court use its discretion and continue the sentencing until November 2014.”...
Assistant U.S. Attorney Andrew McCormack objected to the defense motion, saying the bill might not provide the desired reductions and there is a possibility the delay could mean the government could lose the right to seize the Fords’ home, where the marijuana growing took place. “It is pure conjecture at this time as to the final form, if any, the Smarter Sentencing Act will take,” McCormack said in his opposing motion. “Even if the Act does eventually pass, it is almost certain to be in a form different than the current bill."...
U.S. District Judge John Woodcock Jr. agreed with Tzovarras and postponed Ford’s sentencing until Nov. 21, 2014. Ford, who was convicted of growing marijuana in Massachusetts, moved the family pot-growing operation from Massachusetts to Monroe after he completed a sentence of probation in the Bay State, McCormack told the jury in his closing argument in Ford’s trial.
Due to the Massachusetts conviction, Ford faces a mandatory minimum of 10 years and maximum of life in prison and a fine of up to $8 million on the conspiracy charge under the current federal sentencing guidelines....
Members of the Ford family were arrested in November 2011 when the Maine Drug Enforcement Agency raided the family’s Swan Lake Avenue garage, and found hundreds of thousands of dollars worth of marijuana. During the raid, police seized more than 300 marijuana plants in various stages of growth, 10 pounds of processed marijuana and two semiautomatic assault weapons. Tzovarras, in his Monday motion, states the Smarter Sentencing Act, if passed, would reduce mandatory minimum sentences for manufacturing, distribution, dispensing, possession and importing or exporting specific controlled substances. “If the court determines a mandatory minimum penalty applies to Mr. Ford, that mandatory [minimum] penalty would be reduced by half, from 10 to 5 years,” the defense attorney states.
Monday, June 23, 2014
Another account of how ACCA interpretation aggravation endures, this time in Maryland
Sentencing fanatics know full well the multi-dimensional jurisprudential mess that is application of the Armed Career Criminal Act in federal courts, and this lengthy Baltimore Sun article details how crabby these ACCA problems have become in Maryland. (Hat tip: How Appealing.) The piece is headlined "Sentences challenged for Maryland prisoners deemed to have violent pasts: Supreme Court ruling triggers wide-ranging review in dozens of cases," and here are excerpts:
A little-noticed and highly technical Supreme Court decision is opening the way for dozens of federal inmates from Maryland to seek reduced sentences — even though trial judges found they had violent criminal pasts. For some, the high court decision has already meant that sentences of 15 years and more have been cut substantially. One inmate, for example, saw his sentence reduced from 15 years to about six years; he was released in February....
Prosecutors, including Maryland U.S. Attorney Rod J. Rosenstein, said lengthy sentences are necessary to rid the streets of violent offenders who continue to carry guns or commit other crimes. "Defendants who indisputably committed violent crimes will get a break as result of this opinion," he said.
But advocates for the inmates say such sentences, which take certain previous convictions into account, are used indiscriminately and undermine the judiciary's role in crafting fair punishments. "The petitions I've filed are going to undo the unjust incarceration of lots of people who should never have gotten these mandatory sentences," said Paresh S. Patel, an appeals attorney at the federal public defender's office. The office has filed challenges on behalf of 55 inmates and plans to pursue 13 more.
The petitions follow a 2013 Supreme Court decision that tweaked the way federal judges evaluate a defendant's criminal history when setting sentences in certain cases. Subsequent lower court decisions opened the way to the wave of challenges in Maryland....
A Reagan-era federal law called the Armed Career Criminal Act turns the 10-year maximum penalty for a felon ... possessing a gun or ammunition into a 15-year minimum for anyone previously convicted of three or more "violent felonies" or "serious drug offenses." But determining which state laws should be included in those categories has continually vexed the courts.
The Supreme Court case dealt with California's burglary statute, which covers everything from shoplifting to a violent break-in. Federal judges had previously looked at the details of some prior convictions to determine whether an offender should be considered violent.... But the Supreme Court said that approach by judges is unreliable. "The meaning of those documents will often be uncertain," Justice Elena Kagan wrote for the majority. "And the statements of fact in them may be downright wrong."
Instead, Kagan wrote, sentencing judges should only consider whether the barest elements of the crime — those that prosecutors must prove beyond a reasonable doubt — make the offense necessarily violent. According to the high court, California's burglary law did not qualify. Neither did Maryland's second-degree assault statute, which covers everything from unwanted touching to a violent beating, the 4th U.S. Circuit Court of Appeals ruled later.
In the aftermath of that ruling, at least one inmate convicted in Maryland, Ronald Hamby, has already been released.... He was convicted on a federal gun charge in 2007 and, because he had three prior second-degree assaults on his record, received a 15-year sentence.
Judge William D. Quarles Jr. said at Hamby's sentencing that he regretted the term he had to impose. He added, "Mr. Hamby, sentencing is never a pleasure for a judge, and there are some things that make it considerably less pleasant, such as sending a 26-year-old person away for 15 years."
Attorney Joseph L. Evans, who defended Hamby at trial, said in a recent interview that his client was not the kind of person the law was intended to target. Evans said the assaults "weren't stranger-on-stranger incidents. It wasn't like some sort of gang activity, or drug-related activity. It was youngish guys acting out in stupid ways that violated the law." After the Supreme Court ruling, Hamby challenged his 15-year sentence and was resentenced to the time he had already served in prison plus two weeks. He was released from federal custody in February.
Patel said the federal public defender's office is seeking to revise sentences in gun cases as well as others in which defendants were marked as career offenders.
While all the cases in dispute differ, Rosenstein said his office faces a difficult time upholding the long prison terms it originally secured. He called new interpretations of sentencing laws "one-way ratchets in favor of the defendants." Had prosecutors known the sentences were vulnerable, Rosenstein said, they might have used a different strategy — pursuing a different combination of charges, for example — to obtain a similar outcome.
Mary Price, general counsel of the advocacy group Families Against Mandatory Minimums, said that is one of the benefits of the Supreme Court ruling. Rather than letting prosecutors depend on the mandatory sentences, the new approach will require them to work a bit harder to convince judges to hand out long prison terms, keeping the bench as a check on the system, she said. "Mandatory minimums provide prosecutors control over what the sentence is," Price said. "That whole setup has a problem with it."
Sunday, June 22, 2014
New York Times editorial laments stalled federal sentencing reform
Today's New York Times has this lengthy editorial, headlined "Sentencing Reform Runs Aground," expressing justified concerning that bipartisan support for federal sentencing reform has not yet been enough to secure legislative action. Here are excerpts:
Criminal justice reform is one of the rare issues on which there has been bipartisan support in Congress and significant progress toward a legislative solution. Until recently, anyway.
Two bills, each with Republican and Democratic sponsors, were expected to come up for a vote by this summer — one that would reduce lengthy sentences for many low-level drug offenders and another that would give low-risk inmates credit toward early release if they participate in job-training and drug treatment programs. But progress on both bills has stalled, and congressional leaders who were once confident about their chances this year are now looking toward 2015, at the earliest.
Meanwhile, tens of thousands of federal inmates — many of whom have already served years of unjustly long drug sentences — continue to sit in overstuffed prisons, wasting both their lives and taxpayer dollars at no demonstrable benefit to public safety....
So why the delay? One major factor has been resistance from members of the old guard, who refuse to let go of their tough-on-crime mind-set. In May, three senior Republican senators — Charles Grassley of Iowa, John Cornyn of Texas and Jeff Sessions of Alabama — came out against the sentencing reductions, arguing that mandatory minimums are only used for the highest-level drug traffickers. This assertion is contradicted by data from the United States Sentencing Commission, which found that 40 percent of federal drug defendants were couriers or low-level dealers.
Another factor was the Obama administration’s April announcement that it would consider clemency for hundreds, if not thousands, of inmates currently serving time under older, harsher drug laws. Republicans complained that this — along with other executive actions on criminal justice by Mr. Obama and Attorney General Eric Holder Jr. — took the wind out of reform’s sails.
But with the exception of some old-line prosecutors and resistant lawmakers, everyone still agrees on the need for extensive reform. The other branches of the federal government have begun to do their part: Federal judges across the country have spoken out against the mindlessness of mandatory minimums. The sentencing commission voted in April to reduce many drug sentencing guidelines. And the Justice Department under Mr. Holder has taken multiple steps to combat the harsh and often racially discriminatory effects of those laws.
The public is on board too. According to a recent Pew survey, 67 percent say the government should focus more on treating drug users than on prosecuting them.
Some members of Congress get it. On the right, the charge for reform has been led by Rand Paul of Kentucky, Mike Lee of Utah, Ted Cruz of Texas and Jeff Flake of Arizona. Yet the prospect of reform has become more precarious, even as the need for it has become more urgent.
Judicial pronouncements and executive orders only go so far. It is long past time for Congress to do its job and change these outdated, ineffective and unjust laws.