Thursday, April 28, 2016

Senator Jeff Sessions (and thus Donald Trump?) comes out swinging against revised SRCA

Yh_3216_aAlabama's US Senator Jeff Sessions, whom I believe was the first notabe elected federal official to endorse Prez candidate Donald Trump, has wasted no time condemning, in intricate detail, the just-released revised version of the Senate's Sentencing Reform and Corrections Act (noted here).   This press release, which runs over 1500 words and has too many criticisms to readily summarize, includes these passages:

The changes made to the criminal sentencing bill fail to fix the bill and leave us with legislation that still would release thousands of violent felons and endanger millions of Americans whose safety is increasingly threatened by rising crime rates.  While visiting concern on prisoners is an important and valuable act, we must understand a core responsibility of the government is safety of the public.  The wise approach is to slow down and evaluate the trends before accelerating prison population decline. 

Since 2011, the federal prison population has decreased by over 20,000 (over 9 percent), bringing it to its lowest level since 2006. It will continue to decline by another 10,000 over the next year, bringing it to its lowest level since 2004.  Drug prosecutions have dropped 21 percent since 2011.  The Sentencing Commission recently ordered the release of 46,276 federal drug trafficking felons from federal prison, including those who carried semi-automatic weapons, participated in international heroin smuggling rings, and have violent criminal histories.  And just last year, the Obama Administration released 90,000 criminal illegal aliens from custody.

Meanwhile, homicides in the 50 largest U.S. cities rose nearly 17 percent in 2015 — the largest single-year increase since at least 1960.  In medium-sized cities, violent crime increased 5.3 percent.  The country is in the midst of a historic heroin epidemic where 120 people die each day from overdoses. 

Federal drug and sentencing laws have already been considerably relaxed.  Congress must examine the potential far-reaching consequences of what has occurred before going any further.  It is counterintuitive to further weaken penalties for drug traffickers, especially heroin traffickers, and to enable the release of several thousand more incarcerated drug and gun felons, particularly at this time....

According to Gallup, Americans are more concerned about crime than they have been in 15 years.  If ever there was a time to release more violent felons into our communities, it most certainly is not now.  Passing this legislation would not only be unwise, it would be unsafe....

Despite assurances otherwise, the revised bill still shortens mandatory minimums for repeat drug traffickers, including those who carried a gun, and would allow for early release of those currently in federal prison.... Moreover, this proposal would provide for leniency for illegal alien drug traffickers....  

The revised bill adds a provision to shorten mandatory minimums for drug traffickers who smuggle drugs into the U.S. by boat or submarine.  These criminals have never been eligible for such leniency and are rarely if ever U.S. citizens.  This provision has already been tagged as the “Scarface” provision.  Attorney General Loretta Lynch recently testified before the Senate Judiciary Committee that other than the Southern border, the majority of drugs come into the U.S. by maritime routes....

Before, the bill had a pro-law enforcement provision described by the sponsors as expanding the reach of the enhanced mandatory minimum for firearms offenses to those with prior state firearms offenses.  That provision was removed entirely.

The revised bill further expands the statutory “safety valve” to major drug traffickers, including those with multiple prior criminal convictions....  The bill still provides leniency for illegal alien drug traffickers.

I am not sure if this criticism will keep the revised SRCA from being brought up for a vote, but I do think the connection between Senator Sessions and presumptive GOP Prez candidate Trump provides yet another significant impediment to this bill becoming law.

Prior related post:

April 28, 2016 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (14)

"Senators Announce New Provisions & Cosponsors to Bipartisan Sentencing Reform and Corrections Act"

The title of this post is the title of a US Senate Judiciary Committee press conference that took place this afternoon and can be watched at this link (though you need for fast-forward to about the 11:45 mark of the recorded video).  This Reuters article provides these highlights:

A revised criminal justice reform bill moved closer to a full U.S. Senate vote on Thursday when it gained support from more Republicans after being stalled for months in Congress.

In a legacy-shaping issue for President Barack Obama, the measure's sponsors announced four new Republican co-sponsor senators and a new version of the bill at a press conference in the Senate. The measure now has 37 co-sponsors, according to Senate Judiciary Committee Chairman Charles Grassley. Grassley said he had been waiting for the bill to be finalized before asking Senate Majority Leader Mitch McConnell to bring it up for a full Senate vote, but that "it is time for those discussions to start right now."

As revised, it still lowers mandatory minimum sentences for some non-violent federal drug offenders, but it no longer applies to anyone convicted of a serious violent felony. That change was a response to conservative critics of the bill, which is central to Obama's efforts to overhaul the country's federal criminal justice system and reduce prison overcrowding. That effort has been a rare example of Republican and Democratic agreement in the polarized Congress.

The bill's advocates have said they hope the revisions and new co-sponsors, such as Republican senators Mark Kirk of Illinois and Steve Daines of Montana, will convince McConnell to bring up the bill for a Senate vote.  Daines and Kirk lent their support after adding minor requirements, including a provision that savings from it go toward purposes such as fighting gangs of national significance.

After a group of conservative Republican senators led by Tom Cotton of Arkansas claimed in January the reforms would release violent felons, the bill’s authors began excising parts of the proposal that eased the sentences of violent criminals. The bill now includes a new mandatory minimum sentence for crimes involving the opiate fentanyl, mirroring parallel sentencing reforms that await a floor vote in the U.S. House of Representatives.

The House legislation is likely to contain changes to "mens rea" laws that govern criminal intent, said Senator John Cornyn, a sponsor of the Senate bill, at Thursday's press conference. Mens rea reform was excluded from the Senate measure because its authors were divided on the issue. Democratic lawmakers generally oppose strengthening mens rea requirements on the grounds it would enable more corporate malfeasance as it is difficult to prove the "intent" of a corporation.

To exclude violent criminals from the Senate bill, the authors removed a section that lowered minimum sentences for unlawful gun owners with three prior convictions for violent felonies or serious drug offenses, known as “armed career criminals.” Such criminals represent nearly a fifth of the 12,908 current inmates who would have been eligible for resentencing under the old bill, according to the U.S. Sentencing Commission.

The folks at FAMM have this press release responding to this news, headlined "Strengthen, Don’t Weaken, Sentencing Reforms," which includes this quote from FAMM leader Julie Stewart:

“It’s hard not to get caught up in the enthusiasm of having a tenacious group of bipartisan Senators seek sentencing reform. However, this bill was very modest to begin with, and Congress should be strengthening it, not weakening it. In the last several days, Oklahoma, Maryland, and Iowa lawmakers have passed bold reforms that reduce or eliminate mandatory minimum drug sentences. Congress should be following that example, capitalizing on public support for sentencing reform and passing significant reform that will seriously impact who goes to prison and for how long."

The folks at the Brennan Center have this press release headlined "Senate Should Swiftly Pass Revised Sentencing Bill."

These developments make me somewhat more optimistic that a big sentencing reform bill will get to Prez Obama's desk in the next few months, but I am still not quite ready to say enactment of such reforms are now probable.

A few 2016 related posts:

April 28, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, April 21, 2016

The latest news about the faltering state of federal statutory sentencing reform

This extended Politico article reports on the state and possible fate of federal statutory sentencing reform in Congress.  The piece is headlined "Time running out for major criminal justice bill; A last-ditch effort is underway to salvage a rare alliance between GOP senators and the White House."  Here is how it starts:

Time is running out to reboot efforts to reform the nation’s criminal justice laws, and supporters of reform are making a last-ditch attempt to enlist vulnerable Senate Republicans in an effort that’s probably one of the few chances to enact major bipartisan legislation during the election year.

The chief Republican backers, led by Judiciary Committee Chairman Chuck Grassley of Iowa and Majority Whip John Cornyn of Texas, have quietly courted key GOP senators for weeks to show Majority Leader Mitch McConnell (R-Ky.) they could produce sweeping support for the bill, which would relax some mandatory minimum sentences for nonviolent offenders.  They also want to show they can move the bill relatively quickly on the Senate floor.

Though the bill has languished since it passed the Judiciary Committee in October, its authors have made revisions to satisfy criticisms from some tough-on-crime conservatives that the legislation would prematurely release violent criminals.  Those changes may be winning over some new Republicans.  “We’re taking a real close look at it this week,” said Sen. Ron Johnson (R-Wis.), who is locked in one of the most competitive races this cycle.  “I’m very sympathetic with the bill.”

Yet, the bill’s sponsors have hinted at a formal rollout for weeks, with no official announcement.  Aides said the delay is to buy more time to build support, and they’re targeting Republicans up for reelection this year or senators who haven’t already leveled pointed criticism at the bill, such as Sen. Tom Cotton (R-Ark.).

But time is running short, and other issues are competing for what’s left of it.  The Senate is preparing to restart the moribund appropriations process.  And after the Republican National Convention in July, the chamber will be largely out of commission until the lame-duck session in November and December.

Supporters acknowledge they need to prove to McConnell that there are 60 votes for the measure before the majority leader hauls a bill onto the floor that will cleave the Republican Conference.  “We have a lot of progress made and people saying that we’ve gone in the right direction.  But we’re not getting answers from some people,” Grassley said in a brief interview Wednesday.  “Like for instance, one senator says, ‘I’ll let you know Monday.’ He hasn’t let us know.”

April 21, 2016 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Sunday, April 17, 2016

Would Congress be wise to pursue sentencing reform through DOJ spending limitations?

The question in the title of this post is prompted by this recent Reason piece by Jacob Sullum headlined "DOJ Accepts Decision Saying It May Not Target State-Legal Medical Marijuana Suppliers: The feds had argued that a spending rider left them free to shut down dispensaries."  Here are the details:

The Justice Department has abandoned its appeal of a ruling that said federal prosecutors are breaking the law when they target medical marijuana providers who comply with state law.  U.S. District Judge Charles Breyer issued that ruling last October, when he said enforcing an injunction against a state-legal dispensary would violate a spending rider that prohibits the DOJ from interfering with state laws allowing medical use of marijuana.  The Justice Department initially asked the U.S. Court of Appeals for the 9th Circuit to overturn Breyer's decision but later changed its mind, and on Tuesday the court granted its request to withdraw the appeal.

That decision leaves in place Breyer's ruling, which involved the Marin Alliance for Medical Marijuana (MAMM), without establishing a circuit-wide precedent.  Presumably the DOJ worried that the 9th Circuit would agree with Breyer's reading of the Rohrabacher-Farr amendment, which says the department may not use appropriated funds to "prevent" states from "implementing" their medical marijuana laws.  The DOJ argues that prosecuting medical marijuana suppliers, seizing their property, and shutting them down does not prevent implementation of laws authorizing them. Breyer said that interpretation "defies language and logic."

The rider that Breyer considered expired last year, but the same language was included in the omnibus spending bill for the current fiscal year.  If Congress continues to renew the amendment and other courts agree with Breyer's understanding of it, medical marijuana growers and suppliers who comply with state law will have less reason to worry about raids, arrests, and forfeiture actions, although uncertainty will remain in states where the rules for dispensaries are unclear.  For the time being, that remains true in California, although state regulations aimed at clarifying the situation are scheduled to take effect in 2018.

In other words, now that DOJ has (sort-of) accepted a broad reading of the Rohrabacher-Farr amendment, this DOJ spending limitation has (sort-of) achieved indirectly what Congress has been unwilling or unable to do directly, namely authorize states and individuals to move forward with a responsible medical marijuana program without persistent concerns that DOJ may raid and prosecute participants.  Of course, this spending limitation can and will expire if not consistently renewed by Congress.  But still, as this Sullum piece highlights, even a short-term spending limit can end up having some real bite. 

In light of this intriguing "spending limit" back-door form of congressional marijuana reform, I am now wondering if this approach should be pursued sentencing reformers/advocates growing frustrated Congress has not yet been able to pass a significant statutory sentencing reform bill. Though some clever drafting might be needed, I could imagine a provision in a federal budget bill that prohibited the Department of Justice from, say, expending any funds to prosecute a non-violent drug offender using statutes that carry any mandatory minimum sentencing term or  expending any funds to continue to imprison anyone whose prison sentence would have been completed had the Fair Sentencing Act been made retroactive.

My suggestion here might ultimately be more of a Swiftian "modest proposal" than a real suggestion for how real work can get done on sentencing reform in Congress.  Nevertheless, as the prospect of major federal statutory sentencing reform semes to grow ever darker with each passing week, I am ever eager to consider and suggest whatever it might take to turn the enduring bipartisan sentencing reform talk into some consequential legislative action.

April 17, 2016 in Mandatory minimum sentencing statutes, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, April 15, 2016

Supreme Court of Canada declares a one-year(!) mandatory-minimum drug sentence unconstitutional

In the United States, some defendants can and have received mandatory life without parole sentences for drug offenses, and most federal mandatory minimum drug sentences come in 5- and 10-year chunks of required prison time even for first offenders. And, to date, none of these laws have been found constitutionally problematic largely because, back in 1991, the Supreme Court held in Harmelin v. Michigan that the Eighth Amendment's cruel an unusual clause did not preclude Michigan from imposing a mandatory LWOP sentence on a defendant convicted of possessing more than 650 grams of cocaine.

Fast forward a quarter-century and this news about a new Canadian court ruling shows our neighbor jurists to the north have a much different conception of what kind of mandatory drug sentence violates a constitutional provision precluding cruel and unusual punishments.  The article is headlined "Rulings from Canada's top court strike down mandatory minimum sentences for drugs and bail conditions," and here are the basics:

The Supreme Court of Canada has ruled that two key "tough on crime" measures brought in by the previous Conservative government are unconstitutional. In the first case, the court ruled 6-3 that a mandatory minimum sentence of one year in prison for a drug offence violates the Charter of Rights and Freedoms. It centres on Joseph Ryan Lloyd, a man with drug addictions in Vancouver's Downtown Eastside, who was convicted of trafficking after police caught him in 2013 with less than 10 grams of heroin, crack cocaine and crystal methamphetamine.

The court ruled the sentence cast too wide a net over a wide range of potential conduct, catching not only the serious drug trafficking that is its proper aim, but also conduct that is "much less blameworthy. "

"If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentence," the decision reads. "In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment." The dissenting view argued that the law as drafted was narrow enough, and that it did not amount to cruel and unusual punishment.

The sentence imposed stemmed from the so-called "omnibus crime bill" brought in by the Stephen Harper government in 2012. The Safe Streets and Communities Act, also known as C10, made sweeping changes to Canada's criminal justice system, including mandatory minimum sentences for non-violent drug offenders.

On Friday, Prime Minister Justin Trudeau said the Liberal approach to criminal justice is to protect public safety while respecting rights. He said mandatory minimums are appropriate in some conditions, and noted that past Liberal governments have imposed them for certain crimes like murder. "At the same time, there is a general sense, reinforced by the Supreme Court decision, that mandatory minimums brought in by the previous government in a number of cases went too far," he said after an event in Waterloo, Ont.

A mandate letter from Trudeau to Justice Minister Jody Wilson-Raybould called for an overhaul of the measures brought in by the Conservatives. "You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system," the letter reads.

In the other case, the Supreme Court was unanimous in ruling that a person who is denied bail because of prior convictions should be able to receive credit for time served before sentencing. Normally, a person denied bail can get 1.5 days of credit for each day spent in pre-sentence custody, reflecting what are often harsh conditions with a lack of access to programs. Under sentencing reforms introduced by the Conservatives in 2009, a person denied bail because of a previous conviction is not eligible for enhanced credit.

The mandatory minimum ruling in R. v. Lloyd can be accessed at this link, and here is one key passage from the majority opinion in Lloyd:

The reality is this: mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable.  This is because such provisions will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional.  If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentences.  In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment.

Insofar as s. 5(3)(a)(i)(D) of the CDSA requires a one‑year mandatory minimum sentence of imprisonment, it violates the guarantee against cruel and unusual punishment in s. 12 of the Charter.  This violation is not justified under s. 1. Parliament’s objective of combatting the distribution of illicit drugs is important.  This objective is rationally connected to the imposition of a one‑year mandatory minimum sentence under s. 5(3)(a)(i)(D) of the CDSA. However, the provision does not minimally impair the s. 12 right.

April 15, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (6)

Tuesday, April 05, 2016

Disconcerting data on racial skew in application of mandatory minimums in Iowa

This lengthy local article, headlined "Blacks hit hard by Iowa's mandatory sentences," reports on the disparity in the application of certain state sentences in the heartland. Here is how the article starts:

More than 1,190 inmates are serving time in Iowa prisons for violent crimes that, by law, require a specific number of years behind bars and at least 70 percent of the sentences be served before they're considered for parole.  And at least 35 percent of those inmates are black — in a state where 3.4 percent of the population is African-American.

If you want to know why Iowa imprisons a larger share of its black residents than almost any other state, mandatory minimum sentencing laws are one place to start, critics say.  Iowa's lopsided statistics have prompted the state’s Public Safety Advisory Board for three consecutive years to recommend that the Legislature ease sentencing mandates on two crimes — first- and second-degree robbery — that have been especially tough on African-Americans, said Thomas Walton, the board’s chairman and a Des Moines attorney.  During a four-decade period, 42 percent of Iowa inmates serving prison time for robbery were black, state data show.

A Des Moines Register review of robbery sentencing guidelines for 11 Midwestern states shows that Iowa’s are the most restrictive.  They allow the least amount of judicial discretion in determining how much time an offender will spend behind bars.  “The theory behind mandatory minimum sentences was, ‘Let’s lock them up for a longer period of time … and then we’ve avoided those re-offenses for the period of time that they’ve been incarcerated,’” Walton said. “Some of those assumptions, based on studies done by our board staff, were not necessarily correct.”

Iowa finds itself embroiled in the same debate raging nationally over the impact of mandatory minimum sentences, which were put in place during the get-tough-on-crime decades of the 1980s and '90s and have ballooned prison populations....

This year, the Iowa House, acting on part of the advisory board’s recommendation, approved a bill that includes loosening the mandatory minimum sentence for second-degree robbery.  Judges would have the discretion to say how much time an offender would serve — from three to seven years — before becoming eligible for parole on the 10-year sentence.  Now, offenders must serve at least seven years.

But Sen. Kevin Kinney, D-Oxford, filed an amendment stripping the proposal from House File 2064, which has not been voted on by the Senate.  “When there is a weapon brandished during a robbery, I have a hard time reducing the sentence,” said Kinney, a retired Johnson County sheriff’s officer.  “I just don’t want to reduce penalties for violent crimes.”

April 5, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines | Permalink | Comments (3)

Wednesday, March 23, 2016

Notable new comments and commitments on criminal justice reform from GOP House Speaker Paul Ryan

160323-paulryan-1404_923bb8d76407e0b58fd5c662ccf6c762.nbcnews-fp-1200-800This notable new article about a notable new speech by Speaker of the House Paul Ryan, headlined "Paul Ryan just gave a remarkably candid speech and admitted one of his biggest policy mistakes," has significantly increased my optimism about some form of federral sentencing reform moving forward in Congress this year.  Here are the details:

House Speaker Paul Ryan gave a candid speech about the "State of American Politics" on Wednesday, during which he admitted that he too hasn't always lived up to what he believes is a high-standard of political discourse.

A member of the audience asked Ryan after the speech if he had been persuaded differently on any policy position he has held and was willing to admit he was wrong.

Ryan — who earlier repeated an apology he had made in 2014 for a past statement about America's supposed "makers and takers" when discussing poverty in the country — said he had been wrong about criminal justice. "One of the things that I learned is that there are a lot of people who've been in prison that committed crimes that were not violent crimes," he said. "Once they have that mark on their record, their future is really bleak."

He said that, when he came to Congress in the late 1990s, he was a staunch supporter of tough crime laws. He admitted that both his own party and Democrats overcompensated at the time. The policies, he said, "end up ruining their lives and hurting their communities where we could've have alternative means of incarceration, instead of basically destroying someone's life. I've become a late convert."

"Criminal-justice reform is something I never thought of when I was younger," he continued. "Be tough on crime, be tough on crime." Ryan said criminal-justice reform bills would be brought to the House floor soon. He pledged to "advance this."

"I didn't necessarily know this before, but redemption is a beautiful thing. It's a great thing," he said. "Redemption is what makes this place work. We need to honor redemption. We need to make redemption something that is valued in our culture and our society and in our laws."

Ryan's candid comments on poverty and criminal-justice reform came at the end of a powerful speech about the current discourse in American politics, which he lamented would end up making Americans "distrust institutions" and "lose faith in government."

March 23, 2016 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Thursday, March 17, 2016

"Easing Mandatory Minimums Will Not Be Enough"

The title of this post is the headline of this notable article in Judicature authored by one of my old bosses, Second Circuit Judge Jon O. Newman.  I recommend the full piece, and here is how it starts:

Congress is finally considering easing mandatory minimum penalties.  However, this effort, even if successful, will need to be complemented by actions taken by the United States Sentencing Commission and federal district judges.

If some mandatory minimum requirements are repealed or at least modified, there will be two immediate consequences.  First, prosecutors will be deprived of the awesome power to coerce a guilty plea by threatening to charge an offense that will subject a defendant to a mandatory minimum sentence.  Second, sentencing judges will be spared the often distasteful obligation to impose a required sentence that is more severe than the one they would have selected had they been free to use their sentencing discretion.

But these immediate consequences, desirable as they are, will be only the first of three steps needed to reduce the severity of sentences currently subject to mandatory minimum requirements.  The Sentencing Commission must take the second step of revising the Sentencing Guidelines, and then district judges must take the third step of using their authority to impose non-Guidelines sentences.

March 17, 2016 in Booker in district courts, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Tuesday, March 08, 2016

Quick (inside-the-Beltway) reflections on the latest odds of those inside-the-Beltway getting federal sentencing reform done in 2016

As I briefly mentioned in a prior post, yesterday and today I have been attending and participating in the Alternative Sentencing Key-Stakeholder Summit (ASKS) taking place at the Georgetown University Law Center.  In addition to being greatly impressed by all the speakers and attendees, I have particularly benefitted from hearing this afternoon directly from Senator Charles Grassley and other key players involved in federal sentencing reforms efforts.  After hearing these folks discuss their work and the possibility of enactment of federal sentencing reform this year, I wanted to share some (too quick) reflections in the form of good news and bad news:

Good News regarding prospects for reforms making it through Congress:  Senator Grassley is clearly interested in and now seems quite committed to getting some form of federal sentencing reform through Congress this year.  He stated that work is afoot to modify his Sentencing Reform and Corrections Act to respond to concerns expressed by Senators Tom Cotton and Ted Cruz and others. This Reuters report on Senator Grassley's short speech provides the details, and here are the basics:

U.S. Senate Judiciary Committee Chairman Charles Grassley said on Tuesday that amendments to a bill to lower sentences for certain non-violent drug offenders are close to being finished. Grassley said the amendments, which go further to ensure violent offenders are not released, will build more support for the bill among Republican leadership in the Senate, which will decide whether to bring the bill up for a vote.

"We are very close to making some changes in this bill so we can get it brought before the United States Senate," Grassley said.... Grassley called Cotton's concerns "legitimate and reasonable" when speaking at Georgetown University Law School on Tuesday.

Though he did not provide specifics on the amendments, Grassley did say his team of legislators may have to drop parts of the bill that would have allowed offenders caught with firearms in their possession to have their sentences lowered. "We may have to jettison some changes in the firearm offenses and we may be able to do a better job to make sure that no one with a serious history of violence can get any relief under the bill," Grassley said....

"I'm confident that with the changes that we're making in the bill that we'll get even more support for our bill," Grassley said.  "And with more support, I'm confident that we will be able to go to the leaders in the Senate and persuade them that this bill is exactly what the American people need to see happen in the United States Senate."

As this last quote hints, Senator Grassley also spoke about all the complaints he receives back in Iowa and elsewhere about leaders in DC spending all their time fighting over politics and not getting anything actually done. Senator Grassley's comments have me now thinking that he and other GOP members of the Senate are likely to stress bipartisan work on sentencing reform when attacked by Democrats and others for "not doing anything" in response to the coming SCOTUS nomination or on other priorities. And work on sentencing reform will not seem all that meaningful if a bill does not come to the floor of the Senate at some point.

Bad News regarding prospects for reforms making it through Congress:  Though not mentioned by Senator Grassley, getting a bill to the Senate floor and passed with a majority vote is only half the battle, of course.  The House of Represenatives also needs to pass a parallel bill, and there are continuing reasons to fear that the House will not move forward on sentencing reform bills unless and until mens rea reform is a part of the equation.  I am not sure concerns about mens rea reforms will alone scuttle reforms in Congress, but it already seems to have slowed the momentum for reform in various ways.  And every day that goes by without the legislative process moving forward tangibly is yet another day lost before the congressional election season gets into full swing when members of Congress start focusing more on November voting dynamics rather than whether they get anything done on a complicated policy issue that involves lots of compromises and intricacies.

Speaking of compromises and intricacies (as well as the coming election season), there may end up being some significant voices on the left that jump off the reform train after Senator Grassley makes his already modest Sentencing Reform and Corrections Act even more modest.  The original SRCA was so modest that some significant advocates for reform, including elected officials and policy groups, have already express serious concern that it does not mearly go far enough.  We likely will hear more of these complaints after we see the modified SRCA, and that in turn may lead advocates on both sides of the aisle to be content to wait and hope that their preferred candidates win in November and then to try again in 2017.  

A few prior related posts:

March 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Monday, March 07, 2016

Is the Supreme Court fight already starting to "doom" federal statutory sentencing reform?

The question in the title of this post is my first reaction to this commentary piece authored by Inimai Chettiar from the Brennan Center for Justice which carries the headline "Don't Lock Up Prison Reform: Congress' fight over the Supreme Court shouldn't doom desperately needed sentencing reform." Here are excerpts (which includes something of a status report from Congress):

With a heated partisan battle over the future of the Supreme Court entering a stalemate, and some Democrats threatening to shut down the Senate, many are starting to expect nothing will get done in Congress this year.  But it doesn't have to be that way.  There is one topic on which lawmakers can act, even in this bitter climate.  The same Senate Judiciary Committee members sparring over the Supreme Court nomination process will soon announce a long-awaited compromise on a bill to help reduce America's prison population.

Can our nation's leaders put aside their differences to help resolve one of the largest crises facing our country?  We certainly hope so.  The bill would be the largest congressional action on criminal justice reform in a generation, and a rare attempt at cooperation across party lines.  Lawmakers should not allow partisan bickering over the next Supreme Court justice to destroy a chance to fix a system we all agree is not working.  Congress must act fast, in this rare area of bipartisan accord, to pass sentencing reform....

Much has been learned in the last 25 years about who should be locked up and for how long.  The Sentencing Reform and Corrections Act recalibrates sentencing laws to implement these lessons....

Last month, Sens. Tom Cotton and Jeff Sessions raised concerns the legislation would jeopardize public safety.  In response, a group of nationally prominent police chiefs and prosecutors — the men and women who protect our safety every day — explained how the bill would actually help reduce crime.

Now, co-sponsors Sens. John Cornyn, Chuck Grassley and Mike Lee are revising the bill to address these anxieties.  At least two major changes are expected.  One would remove a provision from the bill that would have reduced mandatory minimums for repeat felons caught with a firearm.  Another would limit current prisoners' ability to seek reduced sentences under the new law if they committed certain serious crimes.  To many progressive advocates, these changes significantly reduce the breadth of the bill.

But even if there's a compromise bill, the next step is getting it to the floor for a vote.  Last week, Grassley met with President Barack Obama to tell him the Judiciary Committee will not hold a hearing or vote if he puts forth a Supreme Court nominee. It's rumored that some Democrats would allow the sentencing bill to falter if Republicans try to block a nominee.

But it is a false choice to pit sentencing reform against a Supreme Court battle.  Accord on one shouldn't be overridden by combat on the other....  Congress has passed legislation during other confirmation clashes.  While Justice Elena Kagan's nomination was pending in 2010, Congress passed a series of significant bills including sanctions against Iran, the Dodd-Frank Act, and another criminal justice law called the Fair Sentencing Act.  In 2005, a year that saw the confirmation of two new Supreme Court justices (Roberts and Alito), Congress passed a free trade act.

Both parties have a decision to make. Senate Majority Leader Mitch McConnell must decide whether to bring the measure to the Senate floor.  His Democratic counterparts Harry Reid and Nancy Pelosi must choose whether to bridge the divide, even if temporarily.  We will soon see how much the parties really care about getting government to work — and how much their cares about over-incarceration are more than just words.

Our politicians will not be able to sell the notion that the people's business should come to a complete halt for the sake of election-year posturing.  The time has finally come for criminal justice reform.  With Congress at a flashpoint over the Supreme Court, bipartisan cooperation to act matters now more than ever.

March 7, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (9)

Saturday, March 05, 2016

"From Mass Incarceration to Mass Control, and Back Again: How Bipartisan Criminal Justice Reform May Lead to a For-Profit Nightmare"

The title of this post is the title of this notable new and timely article now available via SSRN and authored by Carl Takei.  Here is the abstract:

Since 2010, advocates on the right and left have increasingly allied to denounce mass incarceration and propose serious reductions in the use of prisons.  This alliance serves useful shared purposes, but each side comes to it with distinct and in many ways incompatible long-term interests. I f progressive advocates rely solely on this alliance without aggressively building our own vision of what decarceration should look like, the unintended consequences could be serious.
This Article describes the current mass incarceration paradigm and current left-right reform efforts. It then outlines how, if progressives do not set clear goals for what should replace mass incarceration, these bipartisan efforts risk creating a nightmare scenario of mass control, surveillance, and monitoring of Black and Brown communities.  Finally, the Article explains why this mass control paradigm would lay the groundwork for a heavily-privatized, extraordinarily difficult-to-end resurgence of mass incarceration in subsequent decades.

March 5, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Wednesday, March 02, 2016

"One Size Does Not Fit All: The Need for a Complete Abolition of Mandatory Minimum Sentences for Juveniles in Response to Roper, Graham, and Miller"

The title of this post is the title of this article authored by Lindsey Krause now available via SSRN. Here is the abstract:

Juvenile sentencing practices in the United States have seen an enormous amount of reform in the past decade. Three United States Supreme Court cases created the foundation for such reform: Miller v. Alabama, Graham v. Florida, and Roper v. Simmons.  Each of these cases recognizes that youth in the criminal justice system are different from adults and should be treated as such.

Mandatory minimum sentences prevent courts from following the promises of Roper, Graham, and Miller.  The mitigating factor of youth cannot be considered if a judge is given no discretion where a mandatory minimum sentence exists.  This article analyzes recent jurisprudence in Iowa, completely abolishing mandatory minimum sentences for youth under the age of 18 and advocates for the remainder of the nation to follow in the state's footsteps.

March 2, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Tuesday, March 01, 2016

Via 6-2 vote, SCOTUS upholds broader interpretation of child-porn mandatory minimum provision

The first official SCOTUS opinion handed down without Justice Scalia as a member of the Supreme Court in three decades just happened to be an intriguing little sentencing opinion: Lockhart v. US, No. 14-8358 (S. Ct. March 1, 2016) (available here). Justice Sotomayor wrote the opinion for the Court on behalf of six Justices, and it begins this way:

Defendants convicted of possessing child pornography in violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” §2252(b)(2).

The question before us is whether the phrase “involving a minor or ward” modifies all items in the list of predicate crimes (“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”) or only the one item that immediately precedes it (“abusive sexual conduct”).  Below, the Court of Appeals for the Second Circuit joined several other Courts of Appeals in holding that it modifies only “abusive sexual conduct.”  The Eighth Circuit has reached the contrary result.  We granted certiorari to resolve that split.  575 U. S. ___ (2015).  We affirm the Second Circuit’s holding that the phrase “involving a minor or ward” in §2252(b)(2) modifies only “abusive sexual conduct.”

Justice Kagan, joined by Justice Breyer, writes an extended dissent that kicks off with pop-culture references sure to be highlighted by many in social media:

Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast — not an actor in, for example, the latest Zoolander.  Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.”  Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?  And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.”  Surely a person would have cause to protest if punished under that provision for violating a traffic statute.  The reason in all three cases is the same: Everyone understands that the modifying phrase — “involved with the new Star Wars movie,” “in New York,” “relating to insider trading” — applies to each term in the preceding list, not just the last.

That ordinary understanding of how English works, in speech and writing alike, should decide this case.  Avondale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C. §2252(b)(2).  The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list.  But properly read, the modifier applies to each of the terms — just as in the examples above.  That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children.  And if any doubt remained, the rule of lenity would command the same result: Lockhart’s prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s mandatory minimum penalty.  I respectfully dissent.

I am going to resist the urge to speculate concerning which opinion Justice Scalia might have been likely to join were he still alive today, especially given that the late, great Justice was a fan of ordinary understanding and the rule of lenity, but not a fan of legislative history, in the interpretation of federal criminal statute.  I am also going to resist blogging a lot more about this case unless something jumps out as distinctly blogworthy when I have a chance to review the opinions more closely in the days ahead.

March 1, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."

The Hill has now published this notable new op-ed authored by Michael Mukasey and Ronal Serpas under the headline "Federal sentencing reform will aid law enforcement." Here are excerpts:

The Senate is back in session amid recent warnings from Sens. Ted Cruz (R-Texas), Tom Cotton (R-Ark.) and Jeff Sessions (R-Ala.) that federal sentencing reform would jeopardize public safety. They say the country cannot risk reform.

As a former attorney general under President George W. Bush who has overseen thousands of prosecutions, and a police chief with three decades of experience, we have dedicated our lives to the safety of this country.

We can firmly say that sentencing reform done right will not harm public safety. In fact, it will enhance it. We were some of the original supporters of the 1990s “tough on crime” laws. After decades of enforcing them, we and our colleagues — police chiefs and U.S. attorneys — now recognize many provisions, like overly harsh sentencing, went too far.

Much has been learned in the last 25 years about who should be locked up and for how long. The Sentencing Reform and Corrections Act recalibrates sentencing policy to meet the needs of the 21st century. Lowering mandatory minimum sentences for low-level crimes will reduce unnecessary incarceration. This will allow us to better direct law enforcement resources to arresting, prosecuting, and punishing the most serious and violent criminals.

That’s why we and 130 of our law enforcement colleagues wrote to congressional leadership urging them to pass the act. Those standing with us include two former U.S. attorneys general, two directors of the FBI, 21 sitting police chiefs and 68 former U.S. attorneys.

Our message to Republican leadership is clear: Law enforcement asks you to pass this bill. Targeted and appropriate sentencing is a superior approach to controlling crime....

The Sentencing Reform and Corrections Act offers a better path forward. It would reduce mandatory minimum sentences for repeat nonviolent drug offenders. And it would allow judges more discretion to depart from mandatory minimums for low-level offenders if — after hearing specific circumstances of the crime — they feel it is appropriate.

Contrary to what opponents have claimed, the Sentencing Reform and Corrections Act will not swing open the prison doors and release thousands of hardcore violent criminals onto the streets. Every single prisoner eligible for early release will be carefully scrutinized by judges. And only if the judges feel it’s appropriate will they release them. This judicial check ensures the worst criminals will remain where they belong — in prison — while those who pose little threat can get off the taxpayers’ tab and begin productively contributing to society.

The bill would also expand the use of mandatory minimums for offenders with previous convictions for violent crimes, and it creates new mandatory minimums for terrorism-related crimes, giving federal law enforcement additional mechanisms to keep those most dangerous behind bars.

Now is the time for Congress to act. Reducing the population of our overcrowded prisons is one of the few goals on which those on the left and right agree. We want to make it clear where law enforcement stands: Not only is passing federal legislation to reform mandatory minimum sentences necessary to reduce incarceration, it will also help us keep crime at its historic low.

Some recent prior related posts on SRCA:

March 1, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Tuesday, February 23, 2016

Federal district judge in Nebraska calls 10-year mandatory prison sentence for drug offender "absolutely ridiculous"

This local article from the Lincoln Journal Star, headlined "Judge: 10-year sentence is 'absolutely ridiculous'," reports on a notable comments from a federal district judge as he sentenced a seemingly low-level drug offender to a decade in federal prison. Here are the basics from the start and end of the lengthy article:

On a recent Friday in a federal courtroom in Lincoln, a federal judge spoke critically about the 10-year sentence he was on the verge of handing down to the Lincoln man, a nonviolent, recovering meth user. U.S. District Judge John Gerrard's hands were tied.

"The only reason I'm imposing the sentence that I am imposing today is because I have to," he told Leo Guthmiller III on Feb. 12. "That's what Congress mandates." He called Guthmiller, the man at the defense table, Exhibit A for why Congress should pass the Smart on Crime Act. Last June, in a similar case, he called Robyn Hamilton the poster child for it.

In both of the cases, Gerrard, a former Nebraska Supreme Court justice nominated to the federal bench by President Barack Obama in 2011, said the sentence didn't fit the crime. There should be imprisonment, he said, but 10 years in cases like these is ridiculous, draconian even....

[O]n Feb. 12, federal public defender John Vanderslice said Guthmiller got arrested June 20, 2013, at a Lincoln Walmart with a small amount of methamphetamine on him, got accepted into the Lancaster County Drug Court on the state charge and has been clean and sober ever since.

Guthmiller thought drugs were in his past, then, in 2015, he was federally indicted for being part of a conspiracy to distribute methamphetamine in Lincoln back in 2013 for introducing people who were buying and selling it and sometimes getting a cut for it. He pleaded guilty.

"This war on drugs that we are waging in this country with mandatory minimum sentences as applied to a person like Mr. Guthmiller, it's tragic," Vanderslice said at the sentencing. He said it's turned Guthmiller's life upside down.

An emotional Guthmiller apologized for all his past transactions "and everything that's led me to this moment in my life."

"I have worked really hard to turn my life around," he said. "And I'm proud to say that even with all this present stuff facing me that I will continue to do so."

Then, Gerrard handed down his sentence, saying there "should be just punishment, respect for the law. But a 10-year sentence is absolutely ridiculous in a case like this. But there may be another day in court at some point in time." He allowed Guthmiller to report to prison in April.

February 23, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Sunday, February 14, 2016

Did any real chance of federal statutory sentencing reform in 2016 die along with Justice Scalia?

My mind continues to race with all the jurisprudential and political ramifications of the unexpected death of Justice Scalia yesterday.  But, as the question in the title of this post is intended to highlight, I fear there is likely a very significant legislative ramification that will disappoint those eager for federal sentencing reform.  Put simply, I think the chances Congress will pass any significant federal sentencing reform have become greatly diminished now that replacing a Supreme Court Justice is the main concern and focus for nearly everyone inside the Beltway.

One big reason I really think the coming controversy over Justice Scalia's replacement will impede continued forward movement on federal statutory sentencing reform is that opponents of Prez Obama see sentencing reform as part of his effort to produce a legal legacy.  (At the end of his recent floor speech against the leading sentencing reform bill, Senator Tom Cotton made this observation: "In the discussion over the Sentencing Reform & Corrections Act, there is much talk of legacy, and in particular the legacy of President Obama after he leaves office.")  With a SCOTUS pick necessarily about a President creating a legal legacy, I fear that GOP Senators will now be ever more disinclined to move forward with legislative reforms that Prez Obama favors.

February 14, 2016 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Wednesday, February 10, 2016

"The State of Sentencing 2015: Developments in Policy and Practice"

The title of this post is the title of this great new publication from The Sentencing Project.  Here is a summary of its contents drawn from an email I received earlier today:

[This] new report from The Sentencing Project, The State of Sentencing 2015: Developments in Policy and Practice, [was] authored by Nicole D. Porter, Director of Advocacy.  The report highlights reforms in 30 states that demonstrate a continued trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety.  It provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice.  Highlights include:

  • Sentencing:  At least 12 states authorized new sentencing laws or modified policy practices including: abolishing the death penalty; reducing criminal penalties; and sentence reduction policies for mandatory sentences.

  • Probation/Parole:  Lawmakers in at least six states modified policies relating to community supervision including statutory guidance designed to reduce returns to prison for technical probation and parole violators.

  • Collateral Consequences:  Officials in at least 14 states authorized changes in policy and practice to the collateral impacts of a conviction including: expanding voting rights; eliminating public benefits bans for felony drug convictions; and addressing employment barriers.

  • Juvenile Justice:  Lawmakers in ten states adopted juvenile justice reforms including: banning mandatory life-without-parole sentences for justice involved youth and limiting prosecutorial discretion in automatic transfer policies for juvenile defendants.

February 10, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Senator Tom Cotton forcefully (and somewhat thoughtfully) makes his case against the current version of SRCA 2015

23992166449_9ff10a5a94As reported previously in this post and now again via this new piece from The Hill, a number of Senators are in the midst of a robust conversation about the merits of and concerns about the Sentencing Reform and Corrections Act (which I have called SRCA 2015 since its introduction last fall).  Of particular note and importance (and as noted in this prior post), Arkansas Senator Tom Cotton seems to be taking a leading role raising concerns about the current version of the SRCA, and I am now pleased and impressed that Senator Cotton has provide a thorough articulation of his concerns through this new Medium commentary titled "The Current Sentencing Reform and Corrections Act is Dangerous for America," and also through this extended speech delivered yesterday on the Senate Floor.

The Medium commentary, which is relatively short, does not do much more than emphasizethe anti-federal-sentencing-reform points already forcefully and repeatedly expressed by the National Association of Assistant U.S. Attorneys and Bill Otis and others who have been consistent opponents of any changes to the current federal sentencing status quo.  But the Senate floor speech is much, much longer and, in my view, in spots much, much more thoughtful in discussing the SRCA and his own perspectives about federal sentencing reform.  I highly recommend all persons following federal sentencing reform to read Senator Cotton's lengthy floor speech in full, and here are some of the (many) passages that has led me to describe it as forceful (and somewhat thoughtful):

Today, I want to discuss the Sentencing Reform & Corrections Act that has been voted out of the Judiciary Committee. There is much debate about the wisdom of this bill.  That is, like most bills we discuss in this chamber, a judgment call. But there cannot be debate over the facts of this bill. We have to be very clear on what this bill, by its own text, is designed to do....

By its text, the bill will not just apply to so-called "non-violent offenders," but to thousands of violent felons and armed career criminals who have used firearms in the course of their drug felonies or crimes of violence.

By its text, the bill will reduce sentences not for those convicted of simple possession, but for major drug traffickers, ones who deal in hundreds of thousands of dollars' worth of heroin or thousands of pounds of marijuana.  And let's be clear: drug trafficking is not "non-violent," as the bill's proponents often claim.  It's an industry that's built on an entire edifice of violence, stretching from the narcoterrorists of South America to the drug-deal enforcers on our city streets. If you think dealing drugs on a street corner while armed with a gun is a "non-violent" offense, you probably live in a rich suburb or a gated community....

It's been reported that the bill's sponsors are preparing to release a revised bill, one that would address some of these many shortcomings.  Regarding this news, I first want to thank the sponsors for acknowledging that the bill as passed by committee does in fact apply to serious drug traffickers and other violent felons.  I look forward to evaluating the new legislative text, and I hope it addresses these problems....

The [US Sentencing] Commission first reduced sentencing guidelines in 2007.  It did so again in 2010. And again in 2014. That is three major systemic sentencing reductions in the span of seven years. The result?  46,000 federal convicts will walk from jail early.  Wendell Callahan was one among that 46,000.  There will be many more like him. And while we pray — against all odds — that none of them go on to commit a triple-murder like Wendell Callahan did, or any other heinous crime, I'm afraid our prayers will go unanswered, at least in part.

The Sentencing Commission is an independent judicial agency that provides uniform sentencing guidance to judges. Congress didn't have a hand in those sentencing reductions.  But with the Sentencing Reform & Corrections Act, the Senate would impose a fourth major sentencing reduction within eight years — one that is deeper and broader than the reductions imposed by the Sentencing Commission.

This is badly misguided.  The Senate would be launching a massive social experiment in criminal leniency without knowing the full consequences of the first three reductions imposed by the Sentencing Commissions.  This experiment threatens to undo the historic drops in crime we have seen over the past 25 years....

The Senate, and the American people, need to consider any change to our sentencing laws with full information.  We need to know if this sentencing-leniency bill will return us closer to the days of the `70s and `80s when our cities were besieged by the drug trade, and whole communities were being rotted out as a result.  We need to debate sentencing changes with all the data available to us.  We need to do this with eyes wide open.

That is why today — together with Senators Hatch, Sessions, and Perdue — I am introducing the Criminal Consequences of Early Release Act.  This is a simple, but very needed bill.  It will require the federal government to report on the recidivism rates of the 46,000 federal inmates to be released early under the Sentencing Commission's reductions.  And it will require the same reporting for any prisoners released early under any future reductions passed by Congress.

The report required by this bill will make clear how many crimes are being committed by released felons.  It will make clear what types of crimes — from drug trafficking to assault to robbery to murder — are being committed by these felons. And it will make clear in which states these crimes are occurring.

Currently, this type of data is extremely hard to compile.  It is not reported by the Bureau of Justice Statistics, and any information we do have comes through anecdotes and sporadic media reports.  Full information on the criminal consequences of early release must be published in detail.  Before voting on any bill to reduce sentences, the members of this chamber need to understand fully the criminal consequences of prior sentence reductions....

I want to be clear.  To those who support the Sentencing Reform & Corrections Act, we are not in full disagreement. Like you, I oppose jail for first-time drug users with no prior record.  It's vanishingly rare for such offenders to be prosecuted and jailed in the federal system.  But it remains true that the better option for them — particularly if they are addicts — would be drug treatment.  Like you, I believe that our prisons should not be an anarchic jungle that is a danger to both prisoners and corrections officers.  Like you, I believe that those prisoners who will someday complete their sentences and re-enter society should be given the chance to rehabilitate and redeem themselves while in prison so that they do not recommit crimes once they are released.  Like you, I do believe that there exists the possibility of an unjust sentence, one that is so out of proportion that it shocks the conscience.

So I suggest, let's work on that bill.  Let's work on a bill that identifies and addresses all first-time drug possession inmates in the federal system, but keeps drug traffickers and other violent offenders in prison to finish their sentences.  Let's improve prison conditions and give prisoners a shot at redemption and a better life.  And, if you wish, let's work on a bill to speed the consideration of commutation applications.

If we want to undo unjust sentences, we can help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences.  But what we should not do is use the blunt instrument of releasing thousands of violent felons and major drug traffickers.  The president has the constitutional power to remedy unjust sentences.  But you know what power he doesn't have?  The power to bring back to life the victims murdered by prisoners who are released early or sentenced inadequately.

There are a number of statements in the parts of this speech quoted above with which I could take serious issue. In particular, Congress always has authority to block any and every formal decision by the US Sentencing Commission, and the crack-guideline reductions of 2010 were essentially mandated by Congress in the Fair Sentencing Act of 2010. Consequenlty, it is not accurate for Senator Cotton to assert that "Congress didn't have a hand in those sentencing reductions" to drug sentences promulgated by the USSC in recent years. More generally, to assert in blanket terms that "drug trafficking is not 'non-violent'," is no better than asserting in blanket terms that "drug trafficking is non-violent." Some federal drug-traffickers in some settings are extremely violent in doing business. But I have not heard of much violence taking place in all the stores now selling a whole lot of marijuana in Colorado and other states, and I surmise that the ability to purchase this drug in a safe environment is one reason marijuana sales seem to keep going up and up in a number of states.

But, critically, even though Senator Cotton sometimes favors rhetoric over reality in this speech, the basic themes and many particulars he stresses are an important and valuable contribution to the broader debate over federal sentencing reforms. In particular, Senator Cotton is 100% right that our national data on the recidivism rates and realities of federal offenders — not only with respect to those who get sentence reductions, but also for the entire released offender population — leave a lot to be desired and raise more questions than answers. (Indeed, as some readers likely know well, the very term "recidivism" is subject to various definitions in various settings.) I could not agree more with Senator Cotton's statement that the "Senate, and the American people, need to consider any change to our sentencing laws with full information." Indeed, I have long thought that many of our worst federal sentencing laws enacted in prior decades — e.g., the 100-1 crack/powder disparity, some of our most severe gun possession mandatory minimums — were passed largely based on misinformation about their reach and likely impact.

In addition, I think Senator Cotton merits praise for urging his colleagues to "improve prison conditions and give prisoners a shot at redemption and a better life," and especially for suggesting "work on a bill to speed the consideration of commutation applications" in order to "help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences." As long-time readers know, many sentencing reform advocates (myself included) have been advocating for Presidents of both parties to make much broader and more constitent use of the "constitutional power of pardon and commutation." I think it is both quite heartening and significant that now the Senate's most vocal opponent of proposed sentencing reforms is sincerely calling for President Obama (and future presidents) to use the clemency power to remedy any and all federal sentences that appear to the President to be "manifestly unjust."

February 10, 2016 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Monday, February 08, 2016

Politico reporting that (minor?) changes are being made to Senate's SRCA bill to appease GOP critics

This notable new Politico article, headlined "Criminal justice bill will be changed after conservative objections," reports on changes being made to certain provisions of the Sentencing Reform and Corrections Act (which I have called SCRA 2015 since its introduction last fall).  Here are all the important details:

Senators who authored a criminal justice overhaul are preparing several key changes to their bill aimed at mollifying conservative critics.  In recent weeks, a handful of Senate Republicans — led primarily by Sen. Tom Cotton of Arkansas — have argued that the criminal justice reform bill would allow thousands of felons convicted of violent crimes to be released early from prison.  Supporters say that’s an unfair characterization, but now they are making changes meant to eliminate any chance that those criticisms could become reality.

One change involves Section 105 of the bill, which reduced enhanced mandatory minimum sentences for so-called “armed career criminals.”  Under the original proposal, certain felons who already had three violent felony or serious drug offense convictions, and were found guilty of possessing a firearm would face a 10-year enhanced mandatory minimum — lowered from the current 15-year minimum sentence. But the bill’s authors are planning to get rid of this section altogether so that the higher, 15-year sentence remains intact, a senior GOP aide said Monday.  The aide added that this section was the subject of the most complaints from conservatives.

The second major change is to Section 104 of the bill.  That section reduces enhanced mandatory minimum sentences for felons convicted of possessing a firearm while committing a drug crime or a violent offense, such as robbery.  Those changes could be applied retroactively for current inmates.  Now, the new version would specifically bar people convicted of firearm possession alongside a violent crime from being able to retroactively seek a reduced sentence.  Those changes would “substantively" lower the number of current prisoners who could be released early, the aide said.  “We have changed the bill to directly address those concerns and ensure that violent offenders will not benefit from relief under any of the provisions in the retroactive provisions,” the senior Republican aide said.

The changes are expected to be rolled out later this week with the support of all initial GOP and Democratic backers of the criminal justice reform measure — a bill that’s been eyed as one of the few bipartisan accomplishments that could get done in Washington during a polarized election year.  The legislation was introduced last fall with the backing of a diverse Senate coalition that includes Sens. Chuck Grassley of Iowa and Patrick Leahy of Vermont, the top Republican and Democrat on the Judiciary Committee; the two chief vote-counters of each party, GOP Sen. John Cornyn of Texas and Dick Durbin of Illinois; conservatives such as Sen. Mike Lee (R-Utah) and liberals including Sen. Cory Booker (D-N.J.).

But Senate Majority Leader Mitch McConnell (R-Ky.), aware of the divisions in his conference on the criminal justice measure, has so far declined to say whether he’ll put the bill on the floor this year.

I suspect many eager to see sweeping federal sentencing reforms will be disappointed to hear that SCRA 2015, which many reform advocates already believe does not go nearly far enough, is now being modified to restrict further the reach of reforms to certain mandatory minimum sentencing provisions.  But I am actually quite excited to hear this news because it reveals there are on-going efforts to address the stated concerns of current opponents of the bill.  If those concerns can be adequately addressed by what would appear, from the description above, only relatively small changes to a big bill, then I will become more optimistic again about the prospects of some significant statutory reform coming to Prez Obama's desk before he leaves the Oval Office.

Prior to hearing this news, I had been persistently pessimistic about SCRA 2015 ever even coming up for a full Senate vote given that prominent conservative Senators like Tom Cotton and Ted Cruz were voicing significant opposition.  But maybe these reported changes will be sufficient for Senate Majority Leader Mitch McConnell to be now willing to bring SCRA 2015 up for a vote.   Of course, this story does not mention the still heated debate over whether mens rea reform will become an integral part of the Senate's statutory reform activities, and thus this Politico news is anything but a guarantee that federal statutory sentencing reform is sure to become a reality.  Still, this Politico piece does encouragingly suggest the sausage factory that is federal lawmaking is continuing to grind its way forward on federal statutory sentencing reform.

Recent prior related posts on SRCA 2015:

February 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, February 07, 2016

FSR accounting of state of federal sentencing reform efforts at end of 2015

1.cover-sourceAs I try to provide here a "real-time" account of certain ups-and-downs with various federal statutory sentencing reform bills, I too rarely find the time to provide a more reflective accounting of what is afoot in this important criminal justice reform space.  Helpfully, my Federal Sentencing Reporter co-editor, Frank Bowman, has spent time recently assembling in FSR's pages some primary documents and cutting-edge commentary on this front.  Here is part of an email Franl authored providing a description of what he has put together for FSR:

For anyone interested in the details of the various pending pieces of legislation and analysis of the practical impact of the bills that have made it through the House and Senate Judiciary Committees, I commend you to the latest issue of the Federal Sentencing Reporter (Vol 28, No. 2), which contains the text or summaries of the various bills, as well as commentaries. 

In particular, for an overview and impact analysis, see my article, Good Enough to Be Getting on With? The State of Federal Sentencing Reform Legislation, December 2015.  The FSR issue also contains excellent work by Nora Demleitner of Washington & Lee and Paul Hofer, formerly of the Sentencing Commission and now with the Federal Defenders sentencing project, which can be found at this link. Here is the abstract of Frank's article linked above:

This Article addresses the current status of the push for federal sentencing and corrections reform, and describes and analyzes all of the major pieces of sentencing and corrections reform legislation pending in the United States Congress at the close of 2015.  In particular, it considers the Justice Safety Valve Act of 2015, the Smarter Sentencing Act of 2015, the SAFE Justice Act of 2015, and the most likely candidate for passage -- the Senate's Sentencing Reform and Corrections Act of 2015 (SRACA) and its counterpart in the House.  The Article discusses the merits and deficiencies of each bill, and estimates the likely effect of each on the population of current and future federal defendants and inmates.

The Article notes that the legislative proposals have become less expansive as the session has progressed, with each succeeding bill more cautious than the last.  The final section of the Article considers whether the result of Congress's efforts will be worthy of support by those who favor significant federal sentencing and corrections reform.  It concludes that, on balance, the front-end sentencing provisions of the legislation most likely to pass (SRACA) are "good enough to be getting on with," but that the back-end corrections measures with the most current legislative backing ought to be reconsidered and improved.

February 7, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Wednesday, February 03, 2016

Return of GOP jedis trying to keep sentencing reform efforts going in Congress

Last week via this post titled "GOP empire striking back against federal sentencing reform efforts in Congress," I noted this Politico article highlighting that a "cadre of conservative Republicans" were starting to line up against congressional statutory sentencing reform efforts.  The title of this post continues the galactic metaphor as a way to view these notable new press accounts of significant GOP voices trying to keep federal sentencing reform efforts moving forward:

From the New York Times here, "Senator John Cornyn Aims to Sway Fellow Republicans on Criminal Justice"

From Politico here, "Republicans press for criminal justice overhaul"

From BuzzFeed News here, "Koch Continues To Push Criminal Justice Bill As Momentum Fades On Hill"

Because lots of folks on both the left and right sometimes seem to think that the Koch brothers can use their massive wealth to "buy" legal reform, I will here highlight the first part of the BuzzFeed piece:

The momentum for criminal justice legislation is slowing down on Capitol Hill, but hundreds of miles away, Charles Koch — one of its biggest supporters — continued to aggressively make the case for it to pass this year, even as the billionaire becomes the face of one of the sticking points.  “The issue we’ve been working hard on is criminal justice reform, so if somebody makes one mistake, non-violent, it starts with this question: Do you have right to run your own life as long as you don’t violate the rights of others and you’re not bothering anybody?”  Koch said to donors on Sunday at the winter meeting of the political network affiliated with the industrialist brothers, which drew about 500 attendees.

Koch’s comments on the issue were part of an hour-long presentation on what he calls “Framework for Free Society,” which the billionaire believes will put the country back on the right track.  He views changes to the criminal justice system as a crucial component of the framework.  “You smoke a joint or violate some regulation … get arrested, put in prison and then come out, can’t get a job, so this destroys opportunities and makes the community less safe because you go in — and weren’t really criminals — and you are trying to get a job, so you steal if you can’t,” he said.

In addition to Koch himself advocating for looser sentencing laws, attendees also received a closed-door briefing on the issue Sunday morning, according to a schedule provided to donors.  BuzzFeed News was one of six news organizations to accept an invitation to cover parts of the network’s meeting after agreeing to certain ground rules. The largest-ever gathering of the Koch brothers’ political network this past weekend came as the path forward for criminal justice legislation — a high priority for the network’s donors — becomes increasingly uncertain in a presidential election year.

February 3, 2016 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Tuesday, January 26, 2016

"Congressionally Mandated Task Force Calls for Bold Transformation of Federal Corrections System"

CCTFThe title of this post is the headline of this press release which summarized the contents and import of a new report released this morning by the Charles Colson Task Force on Federal Corrections.  Here are excerpts from the press release (which includes a link to the report):

Today, the Charles Colson Task Force on Federal Corrections issued a set of bold recommendations to reform the federal justice system, enhance public safety, and save the government billions of dollars. In a new report, Transforming Prisons, Restoring Lives, the Congressionally mandated blue-ribbon panel released the findings of its year-long investigation into the nation’s overcrowded and costly federal prisons....

“We have laid out a detailed roadmap of ambitious, consensus-based recommendations that place public safety first while reserving prison for those who truly need it,” said task force chair, former Republican congressman from Oklahoma J.C. Watts, Jr. “If taken together, these reforms are projected to reduce the federal prison population by 60,000 people in the coming years and save more than $5 billion.”

Congress established the bipartisan panel in 2014 in response to mounting concerns about the scale and cost of the federal Bureau of Prisons (BOP), which currently houses 197,000 people with a budget of almost $7.5 billion this year. Alan Mollohan, the task force’s vice-chair, said that the seven-fold increase in the BOP’s population since the 1980s is unsustainable. 

"The BOP has been operating at crisis levels for decades," said Mollohan, a former Democratic congressman from West Virginia. "As a result, its policies and practices have not kept up with best practice in the field, presenting a missed opportunity to rehabilitate those who are confined in federal prisons and thus promote public safety.”...

In the report, the task force recommends that the federal justice system move away from its current “one size fits all” approach to meting out punishment and delivering treatment and programs. Instead, they advise that sentencing decisions and correctional responses be based on the individual case–an approach grounded in research evidence as the most effective means of reducing recidivism.

Observing that prison is expensive and imposes tremendous harm to individuals, families, and communities, the Task Force recommends that prison sanctions be used sparingly and long terms of incarceration be reserved for only the most serious federal crimes. They advise incentivizing participation in programs that are proven to lower recidivism and increase the odds of success for individuals reentering society. And, in following the example of successful reforms in states like Texas, Utah, Georgia, South Carolina, and Pennsylvania, they advocate for a more diversified, evidence-based approach to criminal justice that delivers public safety at less cost.

In more specific terms, the Task Force recommends that:

  • Mandatory minimum penalties for drug offenses should be reserved for “drug kingpins”–those found to have served a leadership role in a large cartel;
  • Program and treatment participation in prison should be incentivized through earned time off one’s sentence; and
  • The BOP should better assess the risks, needs, and assets of its population and align programming and treatment accordingly to reduce recidivism and enhance public safety.

Along with the release of this important report, J.C. Watts, the chair of the Charles Colson Task Force on Federal Corrections, authored this Washington Post commentary headlined "Prisons are full of low-level offenders. It’s time to rethink federal sentencing laws.: Americans believe in redemption, but for too long, our reflexive reliance on incarceration has left us little room to show it."

January 26, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Monday, January 25, 2016

GOP empire striking back against federal sentencing reform efforts in Congress

TomCottonThis new Politico article, headlined "Cotton leads effort to sink sentencing overhaul: A cadre of conservative Republicans is lining up against the bipartisan measure, imperiling its future," reinforces my long-standing concern that the prospects of significant statutory sentencing reform emerging from Congress gets dimmer every week that passes without movement forward on the bills that have made it through the judiciary committees.  Here is the first part of the article:

Sen. Tom Cotton, the hawkish upstart who's already made waves railing against the Iran nuclear deal and government surveillance programs, is now leading a new rebellion against a bipartisan effort to overhaul the criminal justice system — hoping to torpedo one of the only pieces of major legislation that could pass in President Barack Obama’s final year.

GOP tensions over a bill that would effectively loosen some mandatory minimum sentences spilled over during a party lunch last week, when Cotton (R-Ark.), the outspoken Senate freshman, lobbied his colleagues heavily against the legislation, according to people familiar with the closed-door conversation. The measure passed the Senate Judiciary Committee last fall with bipartisan support.

“It would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons,” Cotton said later in an interview with POLITICO. “I think it’s no surprise that Republicans are divided on this question … [but] I don’t think any Republicans want legislation that is going to let out violent felons, which this bill would do.”

Cotton isn’t alone. Other Senate Republicans, including Sens. Jim Risch of Idaho and David Perdue of Georgia, also registered their strong opposition during the lunch, even as Sen. Mike Lee (R-Utah) vigorously defended the bill, which he helped negotiate. Risch stressed this message, according to one Republican source: Shouldn’t the GOP be a party of law and order?

Risch declined to elaborate on his concerns over the bill, saying he was displeased that his private remarks made during a party lunch were made public. But the deepening Republican split over reforming key elements of the criminal justice system — an effort years in the making that has been powered by an influential right-left coalition — may imperil whether Senate Majority Leader Mitch McConnell ultimately will take up the measure later in this election year.

Conservatives opposing the legislation are coalescing around Cotton’s view — despite strong pushback from bill supporters — that the measure could lead to the early release of people convicted and imprisoned for violent crimes. Sen. Ted Cruz (R-Texas), once a supporter of easing mandatory minimums for nonviolent drug offenders, has also made this argument. And there’s stiff resistance in pockets of the Republican Party to do anything that may erode its tough-on-crime reputation.

Backers of the bill say their changes to sentencing laws merely allow qualifying inmates to have their cases revisited by the same judge and prosecutor who landed them in prison. The judge would then have the discretion to hand down a reduced sentence. “It’s not true,” said Senate Majority Whip John Cornyn (R-Texas) of opponents’ insistence that violent criminals could be freed under the sentencing reforms. “I’d say, please read the bill and listen to people like [former Attorney General] Michael Mukasey who makes the point, which is a critical point, that there’s no get-out-of-jail-free card.”

But that perception, hardening among conservatives, is a serious obstacle for supporters of the bill like Cornyn, who as the Senate’s second-ranking Republican is the most influential GOP backer of the criminal-justice measure. And last week, McConnell — who is often hesitant to press ahead on issues that divide his 54-member conference — indicated a breather of sorts on the bill, saying GOP senators would take some time to get educated on the measure.

Those comments discouraged some supporters, since any major pause could spell doom for the bill this year. In a couple of months, the GOP-led Congress will turn its attention to its top legislative priority — budget and appropriations bills — while individual lawmakers shift into full campaign mode. “Members of the Judiciary Committee have been deeply involved on that issue, the rest of us have not,” McConnell told reporters of criminal justice reform. “So we’re going to be working through the process of bringing everybody in the Republican Conference up to speed on this very important issue, and we’re going to do that before any decision is made about floor time.”

The criminal justice overhaul isn’t limited to sentencing reforms. The measure also includes reforms to the prison system championed by Cornyn and Sen. Sheldon Whitehouse (D-R.I.) — changes that Cotton said he supports. And overhaul efforts also are complicated by the issue of so-called mens rea reform, with House Republicans and some GOP senators — including Orrin Hatch of Utah, the most senior Senate Republican — demanding changes to rules governing criminal intent.

But the sentencing changes are triggering the biggest — and most vivid — rift among Republicans. Cotton and other Republicans pointed to a triple murder earlier this month in Columbus, Ohio, where a man is accused of killing an ex-girlfriend and two of her children. The suspect, Wendell Callahan, had his prison sentence on drug charges reduced twice for a total of more than four years, according to The Columbus Dispatch.

January 25, 2016 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Tuesday, January 19, 2016

Former AG Michael Mukasey and other former DOJ leaders urge Senate to move forward with vote on sentencing and corrections reform

This new article from Roll Call, headlined "Former Officials Press Senate for Sentencing Bill Vote," reports on the latest inside-the-Beltway federal sentencing reform development. Here are the basics:

Dozens of former federal prosecutors and government officials sent a letter to the Senate leadership Tuesday urging a vote on a bipartisan bill to overhaul the nation’s criminal sentencing laws.

The letter to Majority Leader Mitch McConnell, R-Ky., and Minority Leader Harry Reid, D-Nev., seeks to counter concerns about the bill (S 2123) and instead focus on improvements it makes to the corrections system. “Otherwise, good policy reforms could easily fall victim to politics and fear,” the letter states.

Signers include Michael Mukasey, an attorney general under President George W. Bush, former FBI directors Louis J. Freeh and William S. Sessions, several former U.S. attorneys and several federal appeals court and district court judges....

McConnell, who makes the decision about floor votes, has not said if the Senate will vote on the bill. Majority Whip John Cornyn, R-Texas, a co-sponsor, has said that would happen in 2016. Judiciary Committee Chairman Sen. Charles E. Grassley, R-Iowa, is also pressing for a vote soon.

The momentum for a sentencing overhaul bill faces a challenge because of the tight schedule in an election year and the possibility that the Republicans won't retain their Senate majority. There is also opposition, including from a separate group of former federal prosecutors who sent a letter to leadership in December with concerns about the bill.

The letter sent by Mukasey and others Tuesday seeks to counter those concerns. It says the bill makes “modest, reasonable changes” that would amend “just a few sentencing policies that produced unintended consequences and created imbalance in the scales of justice.”

The bill ties longer mandatory minimum prison sentences to high-level drug traffickers and violent criminals, gives prosecutors new tools to seek enhanced penalties for violent criminals and gives federal prisons a way to make the public safer by reducing the number of inmates who commit crimes once released from their sentence.

“A drug dealer using a gun will still be subject to a significant mandatory minimum sentence for use of the firearm plus additional time for the underlying drug offense,” the letter states. “And since the Department of Justice has committed to a case-by-case review to ensure that any resentencing is done carefully and with complete transparency, offenders who pose a threat to public safety will not be released early.”

Having former GW Bush Attorney General Mukasey on this pro-reform letter strikes me as quite significant because he has been seemingly hesitatant to support big sentencing reforms in the recent past. I doubt this letter itself will dramatically change the political and practical dynamics of getting federal sentencing reform done in the coming months, but advocates of reform shold certainly be glad to have former AG Mukasey now on the reform bandwagon.

UPDATE: The letter signed by former AG Mukasey reference above is available at this link. Another similar letter urging federal sentencing reforms addressed to both House and Senate leaders signed by over 70 prominent police chiefs and federal prosecutors is available at this link.  In addition, this new Politico article, headlined "GOP split threatens sentencing overhaul," reports on the state of play in the Senate.  Here is how it starts:

Senate Majority Leader Mitch McConnell faces snowballing pressure to tackle an overhaul of the criminal justice system. But deep dissension within his own party — between pro-reform Republicans and law-and-order types — is threatening one of the few items on the congressional agenda with a real chance of becoming law this year.

January 19, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5)

Monday, January 04, 2016

Excessive federal sentencing and strict mandatory minimums at center of armed "militia" occuptation in Oregon

23rd_Ohio_Volunteer_Infantry_Color_GuardBecause I am back to full-time teaching this week, I have not yet had much time to research closely the sentencing backstory seemingly inspiring a group of Americans to take up arms against the federal government in Oregon.  But a number of readers have made sure I did not miss that federal sentencing outcomes, and particularly the application of a 5-year mandatory minimum sentencing term, have been a central catalyst for what is now going on.  Helpful, this new lengthy Washington Post piece, headlined "What spurred the armed occupation of a federal wildlife refuge in southeast Oregon," provides some of the key sentencing details:

The several-hundred-person procession through Burns, Ore., concluded at Dwight Hammond’s doorstep early Saturday evening. In a town of less than 3,000 tucked in Oregon’s southeast corner, it was a massive show of support for Hammond, 73, and his son Steven, 46, as they prepared to report to federal prison Monday.

“I thank everyone who came out here today,” Dwight Hammond told the supporters after he and his wife hugged each of them. “See you in five years.” The father and son had been sentenced last year for setting fires on federal land, the conclusion of two decades of clashes between the Hammond family and the federal government that have made the ranchers a cause celebre for some on the right.

For their supporters, the Hammonds represent the latest battle in a struggle as old as the American settlement of the northwest: pitting poor cattle farmers against the federal government and its land regulations in states such as Oregon, where the government owns more than half of the land.

“Most Americans, if they knew the story of the threats and the charges brought against these ranchers, they would say this isn’t right,” said Jeff Roberts, one of the organizers of Saturday’s rally. “We really wanted to show the family support and let them know that they’re not alone. That Americans don’t turn their backs on them.”

But there is a stark divide among the ranks over how to best remedy the plight of the cattle rancher. Some activists, such as Roberts, think the battle will be won through a deliberate public awareness campaign, rallies and town hall meetings. Others, including some armed militias, have another tact in mind: armed resistance.

As Saturday’s rally concluded, a small subsection of attendees, led by Ammon Bundy, began launching into impromptu speeches and, to the horror of many of the rally’s primary organizers, declared that it was time for the group to take up arms. “Those who want to go take a hard stand, get in your trucks and follow me!” Bundy declared to the group at the conclusion of the event, according to several people who were in attendance. “We were just aghast,” Roberts said.

Within the hour, Bundy and about a dozen armed supporters had seized Malheur National Wildlife Refuge, posting armed men at the front gate and vowing to occupy the federal land for “years.”

His father, Cliven Bundy, a Nevada rancher who in 2014 had an armed standoff with federal agents who were attempting to prevent him from illegally grazing his cattle on federal land, who is not himself inside the refuge, told a reporter in Oregon that “150 militia men” had occupied the federal land. As of 6 p.m. Sunday, the armed men remained at the refuge. “There were absolutely not 150 of them,” Roberts said Sunday morning. “He had a small handful of supporters, maybe a dozen. I saw them as they pulled out in their trucks.”...

After a two-week trial, Dwight and Steven Hammond were convicted by jury. They were sentenced in October to five years in prison for committing arson on federal land in 2001 and 2006. The pair had been sentenced and served time previously, but on appeal a federal judge ruled that their initial sentences had been too short.

In the 2001 incident, the men, who had leased grazing rights to the land for their cattle, said they had started the fires on their own land to try to prevent the spread of an invasive species of plant, and that the fire had inadvertently burned onto public land. Prosecutors said the fire consumed 139 acres of public land, and was set in an attempt to hide evidence after the men were part of a hunting party that illegally killed several deer on the federal land.

In 2006, the Hammonds allegedly set a “back fire” meant to protect their land after a series of lightning storms had started a fire on the federal property. Prosecutors said that fire then spread onto the federal land.

“We all know the devastating effects that are caused by wildfires. Fires intentionally and illegally set on public lands, even those in a remote area, threaten property and residents and endanger firefighters called to battle the blaze” Acting U.S. Attorney Billy Williams said in a statement issued after the Hammonds were sentenced. “Congress sought to ensure that anyone who maliciously damages United States’ property by fire will serve at least 5 years in prison. These sentences are intended to be long enough to deter those like the Hammonds who disregard the law and place fire fighters and others in jeopardy.”

The sentence outraged many fellow ranchers and constitutionalist groups in the northwest, who considered the case an overreach of federal regulation and of the federal prosecutors. “We don’t agree with the sentencing, so we came out to stand in solidarity and support,” said Brandon Curtis, president of the Idaho chapter of Three Percent, a constitutionalist group that was heavily involved in organizing the rally for the Hammonds.

Most infuriating about the Hammond case, their supporters say, is that the two men were charged under a federal terrorism statute that requires a five-year mandatory minimum sentence for anyone convicted of arson on federal property. “I don’t think anybody would argue that arson took place . . . but to sentence this family as terrorists, we think that is absolutely egregious,” Roberts said. “These are just country folk, they’re not terrorists.”

Roberts, Curtis and others traveled to the Hammond home in recent weeks and began holding town hall meetings to try to build more local support for them — assuring residents that they were not there to “upend the town.” Despite encountering a lot of local skepticism, the men eventually found some allies — who started an organization called Harney County Committee of Safety and participated in Saturday’s rally.

But at the same time, the Bundy family had begun speaking out on behalf of the Hammonds. In early November, Ammon Bundy began posting updates on the case to his Facebook pages and website. “This last Wednesday I spent a good part of the day in the Hammond’s home. We spoke for hours. Several times, I found the Hammond’s in tears when they explained the injustices that has destroyed their lives,” Ammon Bundy wrote on Nov. 21. “They were hopeful that the American people were going to stand for them. And that, just maybe, they would be able to return to the life they once knew.”

January 4, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Sunday, January 03, 2016

Florida prosecutors honoring Army vet by threatening 120-years mandatory imprisonment for firing two shots in air

15014616This local story from Jacksonville, headlined "Trial set to begin for Jacksonville man facing 120 years in prison for firing 2 shots," highlights why I find so many mandatory minimum sentencing statutes troublesome and why I worry about the extreme sentencing powers that these kinds of provisions often give to local, state and federal prosecutors.  Here are the details of a Florida criminal justice story with many factors that likely undermines the public's faith in the soundness, sensibility and efficacy of modern criminal justice systems:

A Jacksonville man scheduled for trial this week faces a 120-year sentence if convicted, although no one was hurt during the six aggravated assaults he was charged with using a deadly weapon.  Under Florida’s 10-20-Life law, Circuit Judge Jack Schemer would have no choice but to sentence 58-year-old Randal Ratledge to 20 years for each count.  Jurors likely would not be aware of the mandated sentence.

Defense attorneys say Ratledge, a military veteran, does not belong in prison for the rest of his life and are critical of prosecutors for not waiving the requirement.  Attorney Bill Sheppard said he’d be willing to plead Ratledge guilty if prosecutors would waive 10-20-Life and let Schemer impose any sentence that the judge thought was just. But the best offer he’s gotten is 18 years in prison, and that’s essentially a life sentence for someone Ratledge’s age, Sheppard said.

“The problem with our system now is judges have no discretion,” Sheppard said. “Prosecutors decide the sentence, not judges.”  

The state’s 10-20-Life law requires that anyone convicted of a crime involving the firing of a gun gets at least 20 years in prison, with the only exception being someone who fired a warning shot when they have a legitimate reason to feel threatened.  The law requires a 10-year prison sentence when someone uses a gun during the commission of a crime, but doesn’t fire the weapon.

According to police reports, Ratledge was talking with friends and neighbors near his Panther Ridge Court home in August 2012 when he went into the house and came back with a gun.  He fired a shot in the air, then ran at the people outside screaming profanities while firing a second shot in their direction.  

State attorney spokeswoman Jackelyn Barnard said prosecutors have been in discussions with defense attorneys over the case. “While we cannot get into specifics pretrial, the state has considered all options which includes the waiving of the 20-year minimum mandatory,” Barnard said.  The Legislature has given prosecutors discretion to waive a minimum mandatory in appropriate cases, and State Attorney Angela Corey used this discretion when she concluded it is appropriate, Barnard said.

Attorney Bryan DeMaggio, who also is representing Ratledge, said he fired two shots in the air and not in the direction of any of his neighbors.  DeMaggio and Sheppard plan to argue that he was “involuntarily intoxicated” because he had a bad reaction to an Ambien pill and doesn’t remember firing the gun. “He remembers taking the Ambien, and then he remembers being in shackles,” DeMaggio said.

Ratledge didn’t understand what he was doing and is not responsible for his actions, DeMaggio said. Ambien is usually used to help someone sleep, often to help people suffering from insomnia.  Prosecutors have previously argued that the six people next door were in fear for their lives and traumatized by the experience.

The jury that hears the case is not supposed to know Ratledge faces 120 years.  Jurors usually aren’t advised what sentence a defendant faces and are told their only responsibility is to determine whether the defendant is guilty. Sheppard and DeMaggio asked Schemer to make an exception in this case and allow jurors to know, but the judge denied their request.

This is the second time Ratledge will go on trial. He was previously convicted of the same charges, but that conviction was thrown out before sentencing when Circuit Judge James Daniel ruled that Ratledge’s Fifth Amendment right against self-incrimination was violated during the trial.  Officer C.R. Deal, who questioned Ratledge the night he fired the shots, testified in front of the jury that Ratledge told him “he made a mistake and that he did not want to talk about the incident.”  Daniel found that the comment unfairly prejudiced the jury since they knew Ratledge had invoked his right to remain silent, and exercising that right should not be held against a criminal defendant.

Jury selection is scheduled to begin Monday. Which could be bad timing for Ratledge. The Florida Legislature is considering a bill that would remove aggravated assault from the list of crimes that fall under 10-20-Life. The legislation unanimously passed criminal justice subcommittees in both the Florida House and Senate, but if it becomes law it will likely take until spring or summer....  DeMaggio said the legislation as it’s now written would not be retroactive, so if Ratledge is convicted this month his sentence would be unlikely to be overturned.

Sheppard said Ratledge is holding up well. He is out on bail but required to stay in his home most of the time. “He’s a soldier trained by the U.S. Army,” Sheppard said.  “He was trained to deal with it.”

Among the aspects of this case that I find so frustrating is the way in which an extreme mandatory minimum sentencing statute is precluding the just and efficient resolution of a criminal matter seemingly because state prosecutors are unwilling to trust a judge to impose a fair and appropriate sentence on an Army veteran who, it seems, simply acted very badly when having a dispute with neighbors. Even if one thinks the defendant's "Ambien defense" is a bunch of BS, I am hard-pressed to understand why it would be appropriate for an Army vet to be facing decades in prison for foolishly firing some shots in the air in the midst of a summer squabble. And, critically, it seems that the defendant and his attorney have long been willing to resolve this case without the expense now of TWO criminal trials if prosecutors were just willing to let this case be resolved like most of us think cases ought to be resolved: with a neutral judge imposing a sentence after hearing advocacy from the prosecution and defense about what sentence would be fitting.

But for reasons that need not be explained in any way and that are not subject to any review, it seem a group of local prosecutors have decided that they want this Army vet to die in prison for his horrific acts of firing shots in the air one day in August 2012. And because of Florida's 10-20-Life mandatory minimum sentencing laws, these prosecutors have the exclusive power to demand that this vet essentially give up the rest of his life to resolve this case. Perhaps if prosecutors had to explain their charging and bargaining behavior in this case, I could better understand why they have taken such a seemingly ridiculously tough sentencing posture. But they do not, and that is my most fundamental gripe with mandatory minimum sentencing statutes: they not only give prosecutors extreme charging/bargaining/sentencing powers, but they enable prosecutors to exercise this power without being subject to any transparency, review or accountability. Grrr.

January 3, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15)

Monday, December 14, 2015

Will Senate leader ever bring latest federal sentencing reform bill up for a full Senate vote?

The question in the title of this post is prompted by this notable inside-the-Beltway report from the New York Times headlined "Mitch McConnell Demurs on Prospects of Criminal Justice Overhaul."  Here are excerpts:

Despite a concerted push from a broad right-left coalition, Senator Mitch McConnell said he had not determined whether he would bring a bipartisan criminal justice overhaul to the Senate floor next year.  “I haven’t decided yet,” Mr. McConnell, the Kentucky Republican and majority leader, said in an interview on Thursday as he began looking toward 2016.

The Senate leader definitely seemed open to the idea.  He said the proposal, which would reduce some mandatory minimum sentences, lead to early release for thousands of nonviolent offenders and set up new programs to help them adjust to life after prison, seemed to meet his criteria for allocating precious Senate floor time.

“It seems to have pretty broad bipartisan support,” Mr. McConnell said of the criminal justice legislation approved by the Judiciary Committee in October.  “This is the kind of thing, when you look at it, you have principals on both sides who are interested in it.  That makes it worthy of floor time.”

However, the legislation, while endorsed by both conservative and progressive interest groups, could present a sticky election-year vote for some Republicans who typically see themselves as law-and-order politicians.  And the issue could get very complicated should Senator Ted Cruz of Texas become the Republican presidential nominee.  Mr. Cruz voted against the plan in the Judiciary Committee and was outspoken in his criticism.  So if the Republican-led Senate moved forward, it could conceivably be pushing legislation opposed by its candidate for the White House.

It is critical to recall that just a few years ago when Democrats still controlled the Senate, then-Senate leader Harry Reid never brought the Smarter Sentencing Act up for a full Senate vote ever after the SSA passed through the Senate Judiciary Committee with bipartisan support and even though there was good reason to believe the SSA would have garnered majority support from the full Senate.  Thus, as this article spotlights, the passage of the Sentencing and Correction Reform Act through the Senate Judiciary Committee provides no certainty that even the full Senate will get a chance to vote of this reform bill.

As reported earlier, it is clear that the first few months of 2016 now constitute the next critical period for federal statutory sentencing reform.  I remain cautiously optimistic that the broader political and social forces that have so far propelled bipartisan support for reform to this point will help carry some bill through both houses of Congress in some form in 2016.  But I am not counting any sentencing reform chickens anytime before they completely hatch out of Congress and find their way to the desk of the President.

December 14, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Thursday, December 10, 2015

NAAUSA sends letter opposing federal sentencing reforms on behalf of forty former federal officials

As reported in this new Washington Examiner article, "[f]orty former top federal law enforcement officials want senators to hit the breaks on bipartisan legislation that would roll back mandatory minimum sentences for drug dealing and other crimes." Here is more:

The group, which includes former New York mayor and U.S. Attorney Rudy Giuliani, former Attorney General John Ashcroft and drug control czar William Bennett, say sentencing laws enacted in the 1980s and 1990s led to the dramatic dip in crime rates that began 25 years ago, a claim disputed by many liberals and criminologists.

"Our system of justice is not broken," the former officials wrote in a Dec. 10 letter sent by the National Association of Assistant United States Attorneys to Senate leaders. "Mandatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years, an achievement we cannot afford to give back." The officials call for leaving the current sentencing regime alone.

"Our current sentencing structure strikes the right balance between congressional direction in the establishment of sentencing levels and the preservation of public safety," they write. The former officials express alarm about proposals to retroactively alter previously applied sentencing guidances, a step they say would cause the release of "thousands of armed career criminals."...

Some senior Republicans, including Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, support scraping some minimum sentencing laws, though Grassley backs a less sweeping bill than [Senator Rand] Paul. The GOP support has helped make sentencing reform a popular issue, widely hailed as a rare area where bipartisan cooperation is possible.

But the law enforcement officials' letter shows reports of an emerging bipartisan consensus are exaggerated. The letter's signatories include officials who helped enact the tough sentencing laws now under fire. Michele Leonhart, who headed the Drug Enforcement Agency under Obama, is a notable Democratic appointee who broke with her former boss by signing on.

Sens. Jeff Sessions, R-Ala., and Marco Rubio, R-Fla., another a presidential hopeful, are among conservatives gearing up to oppose to sentencing reform, raising the chance the issue could divide Republicans.

I cannot yet find a copy of this NAAUSA letter on-line, but I will try to post it when I can get access to a copy.

UPDATE:  A helpful colleague sent me a copy of the letter for posting here:  Download Former_Official_Ltr_1210-2015-FINAL (1)

December 10, 2015 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Thursday, December 03, 2015

"The government is abusing mandatory minimums: How law enforcement is ruining a generation of Americans"

The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir.  Here are excerpts: 

The Obama administration has called for the criminal justice system to be reformed and for the population of our enormous prison system to be reduced, encouraging reform efforts in Congress and pledging to speed up a moribund clemency process so that people serving unjustly harsh sentences can be freed.  The Department of Justice has taken a lead role, forcing local police departments to clean house and, under former Attorney General Eric Holder, pledging to restrict federal prosecutors’ use of harsh mandatory minimums....

There is growing concern, however, that federal prosecutors in the 94 U.S. Attorneys’ Offices nationwide are implementing Holder’s directives unevenly — or even resisting implementation entirely.  David Patton and Jon Sands, co-chairs of the Federal Defender Legislative Committee, wrote in a recent letter to House Judiciary Committee leadership that “there is widespread disregard of DOJ policy among line federal prosecutors about when to trigger those severe enhancements.  And the enhancements are regularly used for no other reason than to force people to waive their trial rights.”

 851 enhancements double five- and ten-year mandatory minimum drug sentence for offenders with one prior “felony” drug conviction, and impose a life without parole sentence for offenders with two drug priors facing a ten-year sentence.  What counts as a so-called felony, however, is remarkably broad [and] it can include state convictions so minor that they did not result in jail time. It can even include state misdemeanors...

Steve Cook, the president of the National Association of Assistant U.S. Attorneys ... is leading a campaign against sentencing reform legislation in Congress, and he disagrees that prosecutors use 851s to coerce cooperation. “One of the criticisms I hear frequently from commentators is prosecutors want these mandatory minimums and 851s so they can strong arm guilty pleas. Well, that isn’t the case,” Cook said. “851s, those were designed to put recidivists in prison for longer.”

There is evidence, however, to suggest that that is often precisely how they are used. Judge Gleeson detailed one such instance in a 2013 opinion protesting his own sentencing of Lulzim Kupa, and the prosecutorial abuse of mandatory minimums more generally. Based on more than five kilograms of cocaine alone, Kupa faced a 10-year mandatory minimum sentence. But Kupa had two prior marijuana trafficking convictions.  If prosecutors so decided, they would trigger life without parole upon conviction.

On March 5, 2013, prosecutors offered Kupa a plea deal.  The government would withdraw the 10-year mandatory minimum and instead recommend a sentence of between 110-137 months.  With good time credits, Kupa could serve seven years and ten months, Gleeson wrote.  But Kupa had just one day to think the agreement over, and he didn’t accept it.  And so prosecutors twisted the screws tighter, filing the 851 information detailing his two prior marijuana convictions. Unless prosecutors withdrew the notice, he would be automatically sentenced to life without parole upon conviction. “Just like that, a defendant for whom the government, only ten days earlier, was willing to recommend an effective sentence of less than eight years was looking at life in prison without the possibility of parole,” wrote Gleeson.

December 3, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Federal statutory sentencing reform not going to happen until 2016 ... if at all

This TPM DC report, headlined "Criminal Justice Reform Is Quickly Running Out Of Time," provides a Capitol Hill update that confirms what I had heard from another source: the full Congress is unlikely this year to get to the criminal justice reform bills that have made it through the House and Senate Judiciary committees. And, as the TPC article goes on to explain, the enduring GOP uncertainty on this front combine with a Prez campaign to perhaps diminish the prospects that any reform gets done anytime soon:

It was supposed to be the rare bipartisan bright spot in the Senate, but a crowded legislative calendar and the looming election year are endangering the last best hope for criminal justice reform while President Obama is still in office. With roughly three weeks left until the holidays, the Senate is prioritizing passing a tax extenders bill, a reconciliation package to defund Obamacare and Planned Parenthood, a transportation bill, and legislation to fund the government. That means time has run out for criminal justice reform in this calendar year.

"No chance it can be done between now and Christmas," Judiciary Chairman Chuck Grassley (R-IA) said Monday evening as he darted off the Senate floor clutching his list of the Republican senators he still intended to convince to sign onto his bill, his handwritten notes scrawled underneath each of their names.

Advocates and outside observers have long anticipated that the best chance for passage of criminal justice reform would be before the practical realities of electoral politics intruded in 2016. With the remainder of the year taken up by other matters, reformers will have to wait until the Senate gavels back in in the new year, in the midst of presidential primary season.

The prospects of pushing forward with the Senate bill just as the Republican presidential primary in particular is in full swing -- with the expected tough-on-crime appeals to the conservative base -- is daunting. Primary season is hardly the time for the Republicans back in Washington to be giving up on the well-honed GOP attack lines on crime and pushing forward a progressive new position on incarceration....

Grassley and supporters are now running short on time to get their bill on the floor especially if Republican frontrunner Donald Trump stays on top. Trump's attempts to tie illegal immigration and criminality have prompted fellow Republican presidential candidates to follow suite. In a race to out-flank one another, the GOP contenders have backed away from the new wave of conservative thinking on criminal justice reform and reverted to echoing the talking points that were cornerstones of the party in the 1980s and 1990s. Sen. Ted Cruz (R-TX) voted against the criminal justice reform bill in committee in October even as he once billed himself as a pro-reform Republican....

While momentum had been building for the Senate's criminal justice reform bill, there are still deep divisions in the Republican Party to contend with. The tug of war is between traditional tough-on-crime Republicans who believe reductions in sentences would lead to a spike in crime and a new generation of conservatives who see an economic argument for reducing mandatory minimums and slashing the costs associated with incarceration.

Grassley and other sponsors like Sen. Mike Lee (R-UT) are working to convince senators like Cory Gardner (R-CO), Shelley Moore-Capito (R-WV) and Steve Daines (R-MT) to sign on, but there are some outspoken opponents who may prove to be immovable. “I think the bill needs more work. I think it needs to be connected with the reality of criminal justice and crime in America," said Jeff Sessions (R-AL) "I would not favor bringing it up and just zipping it through. A number of members in our conference, I think share those concerns.” Freshman Sen. Tom Cotton (R-AR) replied "no comment" when TPM asked him about his position. Former Judiciary Committee Chairman Orrin Hatch (R-UT) said he was concerned the bill would "let out a lot of people who don’t deserve to be let out [of prison.]"

While Democratic sponsors of the bill are publicly optimistic that the legislation can get a vote on the floor even in an election year, Sen. Sheldon Whitehouse (D-RI) admits the lack of GOP unity does put the legislation in some jeopardy. Republican leadership will want to ensure they have buy in from most of their conference if they are going to risk bringing the bill up in an election year and giving President Barack Obama a domestic legislative victory. “I think this is an issue that needs to be wrangled out on the Republican side so the Republicans on the bill need their own leadership to get it some votes," Whitehouse says. "It's not unanimous so the Jeff Sessions and people like that would be out of the floor pushing back the same way they did on the committee."

Sen. Thom Tillis (R-NC) says he's familiar with the process of selling criminal justice reform to a skeptical audience. Tillis was speaker of the North Carolina House when the legislature passed the Justice Reinvestment Act, which made back-end reforms to reduce recidivism. "I know that a lot of people get concerned with it," Tillis said. “It’s not really a soft on crime bill. It is the typical arguments that get used for these sorts of things, but I think the more that we educate people, the broader base of support we will get for it."

Tillis recognizes, however, that the problem is that on the campaign trail, candidates don't have time to explain complicated or new policy proposals. “If candidates on either side of the aisle exploits it for what it is not, yeah it could slow things down," Tillis said." You only get to operate in 15 and 30 second soundbites, and you cannot explain the merits of this bill in that time frame so yeah going on into the early primaries, it could be difficult and they have to stake themselves out.”

I am not yet giving up all hope that Prez Obama could get to sign a federal sentencing reform bill before he leaves office. But, as I have long been saying, an array of political, policy and practical challenges lead me always to be mostly pessimistic about the prospects of significant congressional action on this front.

December 3, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, November 26, 2015

So thankful for federal judges encouraging prosecutors to reconsider extreme sentence... but...

I wish that such reconsideration of extreme sentences were more the norm than the exception in our modern era of mass incarceration.  The notable new judicial trend for which I am thankful was discussed earlier this week in this Wall Street Journal article headlined "Persuasive Judges Win Reduced Sentences for Some Convicts: Federal prosecutors agree to do-overs in a handful of cases, another sign of shifting attitudes about punishment."  Here are excerpts:

Francois Holloway became a free man this year three decades earlier than planned, thanks to a well-placed ally. U.S. District Judge John Gleeson in Brooklyn, N.Y., who put Mr. Holloway away in 1996 for participating in armed carjackings, had lobbied prosecutors for years to reduce Mr. Holloway’s 57-year sentence.

Federal trial judges have little leeway in sentencing when prosecutors trigger mandatory-minimum laws that set floors for punishment, and they have few means of revisiting closed cases, unless new evidence comes to light or a major legal error was committed. But they can be persuasive.  Federal prosecutors have agreed in recent years to sentence reductions in a handful of cases, most after public pressure from judges.

Such do-overs are another sign of shifting attitudes about punishment and growing bipartisan support for criminal justice policies that emphasize rehabilitation.  The practice does have its detractors, who say such relief should come from the White House in the form of commutations and pardons, not from the courthouse.

So far, the cases have tended to involve defendants who rejected plea deals, lost at trial and received prison terms several times larger than they would have if they had they pleaded guilty, sometimes called a “trial penalty.” Mr. Holloway balked at a deal that would have sent him to prison for about 11 years. He ended up receiving a mandatory minimum of 45 years because one of his co-assailants brandished a gun during the three carjackings. He earned the balance for stealing the vehicles, per federal sentencing guidelines that were binding on Judge Gleeson at the time....

After Mr. Holloway lost his appeal, he turned to a federal law frequently used by federal prisoners to challenge their sentences as excessive or to show that their lawyers were ineffective to the point of depriving them of their rights. At the urging of Judge Gleeson, the U.S. attorney’s office in Brooklyn last year withdrew its opposition to Mr. Holloway’s petition, citing his “extraordinary” record while in prison, as well as the responses of Mr. Holloway’s victims, who supported his early release. Attorney General Loretta Lynch headed the U.S. attorney’s office at the time.  Judge Gleeson vacated two of Mr. Holloway’s convictions and resentenced him to time served. “Prosecutors are almost never criticized for being aggressive,” he wrote in a July 2014 ruling lauding Ms. Lynch’s move. “Doing justice can be much harder.”

U.S. attorneys have accepted reduced punishments “where prosecutors, the court and victims have agreed that a sentence is unjust,” but such cases are rare, said Melanie Newman, a spokeswoman for Ms. Lynch. “The government nearly always seeks to preserve the finality of sentences where there is no legal flaw,” Ms. Newman said.

Harlan Protass, a partner at Clayman & Rosenberg LLP who represented Mr. Holloway, said the case has become a model for taking a second look at sentences.  Mr. Protass and Sam Sheldon, a partner at Quinn Emanuel Urquhart & Sullivan LLP in Washington, D.C., hope to establish a law-school clinic with the mission of persuading the government to allow new sentence hearings and reduced prison terms for certain offenders....

In another New York case, Randy Washington, a crack-cocaine dealer from the Bronx convicted of armed robbery, found a friend in his sentencing judge, who last year admonished prosecutors to consider whether the 52-year mandatory-minimum prison sentence Mr. Washington faced was “worthy of the public’s trust and confidence.” His punishment later was cut in half.

Prosecutors in Oklahoma agreed this year to allow an Army National Guard veteran sentenced to life for cocaine smuggling to leave prison after serving nearly three decades.  In Atlanta, the government shortened from life to 25 years the sentence of a man convicted of cocaine distribution.  Meanwhile, prosecutors in Montana dismissed several gun and drug counts against a medical-marijuana grower, lopping off 80 years of an 85-year mandatory sentence....

Some federal prosecutors have declined requests by federal judges for shorter sentences.  In Philadelphia, U.S. District Judge Jan DuBois recently implored prosecutors for a penalty that “better serves the interests of justice” in the case of Tyrone Trader, who was convicted for his role as a street-level dealer in a cocaine-trafficking conspiracy...  Mr. Trader received a mandatory life sentence under federal law, after the Justice Department filed a notice with the court showing Mr. Trader had prior felony drug convictions.  The other street-level dealers who took pleas have been released from prison, Judge DuBois noted, adding that the average federal sentence for murder was less than 23 years in fiscal 2014.  “It is difficult to see how a sentence of life imprisonment in Trader’s case is just,” Judge DuBois wrote in an August ruling.

U.S. Attorney Zane David Memeger said in a statement that the government carefully considers each case before making charging decisions and that there was “no basis” for reducing Mr. Trader’s sentence.

November 26, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

So thankful for federal sentencing reform moving ahead in Congress... but...

this recent article from the New York Times highlights why I will not celebrate the reform movement's accomplishments until a bill is being signed by the President.  The article, headlined "Rare White House Accord With Koch Brothers on Sentencing Frays," details what has become more controversial elements of bipartisan criminal justice reform efforts.  Here are excerpts:

For more than a year, a rare coalition of liberal groups and libertarian­minded conservatives has joined the Obama administration in pushing for the most significant liberalization of America’s criminal justice laws since the beginning of the drug war.  That effort has had perhaps no ally more important than Koch Industries, the conglomerate owned by a pair of brothers who are well­known conservative billionaires.

Now, as Congress works to turn those goals into legislation, that joint effort is facing its most significant test — over a House bill that Koch Industries says would make the criminal justice system fairer, but that the Justice Department says would make it significantly harder to prosecute corporate polluters, producers of tainted food and other white­collar criminals.

The tension among the unlikely allies emerged over the last week as the House Judiciary Committee, with bipartisan support, approved a package of bills intended to simplify the criminal code and reduce unnecessarily severe sentences. One of those bills — which has been supported by Koch Industries, libertarians and business groups — would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects “knew, or had reason to believe, the conduct was unlawful,” and did not simply unknowingly violate the law.

Many laws already carry such a requirement — known as “mens rea” — but Congress left it out of many others, and libertarian groups say that has made it too easy to unknowingly violate obscure laws.  Some environmentalists argue, however, that the real motive of Charles Koch, the philanthropist and the company chairman, in supporting the legislation is to block federal regulators from pursuing potential criminal actions against his family’s network of industrial and energy companies, a charge the company denies.

If the bill passes, the result will be clear, said Melanie Newman, the Justice Department spokeswoman. “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal” she said.

The debate over the bill, sponsored by Representative Jim Sensenbrenner, Republican of Wisconsin, has become particularly complicated for House Democrats, who have been warned that its passage would be essential for obtaining support from Republicans for a larger package of criminal justice bills.  Many liberal Democrats see this session of Congress as a rare chance to address what they see as significant unfairness in the criminal justice system.  Many of them feel that anything that jeopardizes that opportunity, like trying to block Mr. Sensenbrenner’s bill, is not worth doing.  Two liberal members of the Judiciary Committee, Representatives John Conyers Jr. of Michigan and Sheila Jackson Lee of Texas, were co­sponsors of the bill.

Mr. Conyers, in a statement on Tuesday, said he supported the bill, which the Judiciary Committee approved by voice vote last week, because outside parties had raised “a number of concerns about inadequate, and sometimes completely absent, intent requirements for federal criminal offenses.”  But he said he was committed to finding a way to address the Justice Department’s concern....

“There are some groups on the left that mistrust the people who have put this proposal forward,” said John G. Malcolm, who served in the Justice Department’s criminal division during the Bush administration.  He now works at the Heritage Foundation, a conservative research center, where he has aggressively pushed for the change in the mens rea provisions.  “It is an unfair and unwarranted characterization,” he added.

Koch Industries and conservative groups have some important liberal allies on the matter, including the National Association of Criminal Defense Lawyers. Norman L. Reimer, the organization’s executive director, said it was not surprising the Justice Department opposed the legislation. “D.O.J. is always up in arms over anything that looks like they’d have to do their jobs,” he said.  If the Justice Department’s job was harder in some cases, he said, that would be a good thing. For example, he cited a case in which prosecutors charged a fisherman with violating federal accounting laws by tossing undersized fish overboard. (Koch Industries made a major donation to the defense lawyers’ group last year.)

November 26, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, November 23, 2015

US District Judge Bennett finds legal limit to giving retroactive effect to new lower federal drug sentencing guidelines

Regular readers know that US District Judge Mark Bennett regularly produces thoughtful and thorough opinions on an array of cutting-edge federal sentencing issues.  The latest Judge Bennett opus arrived today via US  v. Feauto, No. CR 12-3046-MWB (D. Iowa Nov. 23, 2015) (available for download below).  As this start to the Feauto opinion reveals (with lengthy footnotes left out and breaks added), Judge Bennett's latest work likely means a not-so-happy Thanksgiving week for at least on federal defendant:

Before me for consideration is defendant Randy Feauto’s eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) in light of Amendment 782, the “All Drugs Minus Two Amendment,” to the United States Sentencing Guidelines.  The parties and the Federal Defender for the Northern and Southern Districts of Iowa, as invited amicus curie, argue that a defendant subject to a mandatory minimum sentence who previously received a “substantial assistance” reduction below that mandatory minimum can be resentenced pursuant to Amendment 782 without regard to the mandatory minimum.  That position was originally music to my ears, because I have consistently — and vehemently — disagreed with the harshness of most mandatory minimum sentences.  In fact, in most of the over 1,000 congressionally-mandated mandatory minimum sentences that I have imposed over the past twenty-two years, I have stated on the record that they were unjust and too harsh.  I would often inform or remind defendants and their families and supporters in the courtroom that reform of mandatory minimum sentencing must come from the legislative branch of our federal government — Congress.

So it is with significant irony, but consistent with my view that only Congress has the authority to waive mandatory minimum sentences (with the exception of substantial assistance motions, pursuant to § 3553(e) and FED. R. CRIM. P. 35(b), and “safety valve” eligibility, pursuant to § 3553(f)), that I disagree with the parties’ argument that the Sentencing Commission has the authority to use Amendment 782, or any other amendment to the Sentencing Guidelines, to “nullify” a mandatory minimum sentence established by Congress.  For the reasons set forth below, my understanding is that only Congress itself, not the Sentencing Commission or the Judicial Branch, has that power.  Consequently, the proper net effect of Amendment 782, applied either retroactively or prospectively, is that it can only reduce the sentence of a defendant who originally received a reduction for substantial assistance if he had no mandatory minimum or both his original guideline sentence and his amended guideline sentence are above his mandatory minimum.  Feauto is not such a defendant.

I fully recognize that, like the vast majority of mandatory minimum sentences themselves, this construction leads to a harsh result, but fidelity to the rule of law and principles of non-delegation and separation of powers trumps any personal views on the harshness of federal sentencing.  As discussed below, the construction urged by the parties and amicus creates an Alice In Wonderland like scenario in which the retroactive application of Amendment 782 opens a rabbit hole that Feauto, instead of Alice, falls through and receives a lower sentence in Wonderland than if he were originally sentenced today for his crime with the application of post-Amendment 782.  Surely, this Mad Tea Party scenario creates the very kind of unwarranted disparity the guidelines were intended to avoid.

Download Feauto.Final Opinion.final.112315

November 23, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

NY Times editorial: "Cut Sentences for Low­-Level Drug Crimes"

This New York Times editorial provides a glimpse into the latest state (and notable criticisms) of federal statutory sentencing reform making slow-but-steady progress in Congress. Here is how it starts and ends:

Now that Congress is within sight of passing the most significant federal sentencing reforms in a generation, it’s worth taking a closer look at where the legislation falls short.

The main driver of the federal prison population is, by far, the dramatic increase in the time people spend behind bars — specifically, those convicted of drug offenses, who account for nearly half of the nation’s 199,000 federal inmates. From 1988 to 2012, the average time served for drug crimes more than doubled in length, according to a new report by the Pew Charitable Trusts.  That increase in the length of drug sentences comes at a great expense: an estimated $1.5 billion each year, based on how much it costs to keep a federal inmate behind bars.

The new sentencing­-reform bills now moving through the Senate and House would help reduce some of the longest mandatory­-minimum sentences, including ending the use of life without parole for drug crimes, and would give judges more power to impose a shorter sentence when the facts of a case warrant it.

But these fixes do not reach to the heart of the problem, which is that the vast majority of federal drug offenders serving outsize sentences are in for low-level, non-violent crimes, and have no serious history of violence. More than half of the current drug­-offender population has no violent history at all, according to a new analysis by the Urban Institute and the Charles Colson Task Force on Federal Corrections.  Less than 14 percent were sentenced for using or threatening to use violence, or directing its use.  And only 14 percent were sentenced for having a high-­level or leadership role in a drug operation, the study found....

A critical fix Congress could make right now would be to change the law so that a person’s sentence is determined by his role in a drug operation, and not by the entire amount of drugs found in that operation, which is a poor measure of culpability.

One version of the sentencing reform legislation, introduced in the House by Jim Sensenbrenner, Republican of Wisconsin, and Robert Scott, Democrat of Virginia, would have addressed this issue squarely by applying many mandatory minimum sentences only to the leaders of a drug organization. But that smart idea was heavily watered down in the bills passed by the Senate and House Judiciary Committees in recent days.  Congress should resurrect this sensible provision, which would go a long way toward bringing some basic fairness and rationality back into the nation’s horribly skewed drug laws.

Some recent related posts:

November 23, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, November 18, 2015

House Judiciary Committee advances its Sentencing Reform Act of 2015 for full House consideration

As reported in this article from The Hill, today the "House Judiciary Committee passed a criminal justice reform bill ... that would reduce certain mandatory minimum prison sentences to address overcrowding in the federal prison population."  Here is more on how this came to pass:

In a voice vote, the committee moved Chairman Bob Goodlatte’s (R-Va.) bill — the Sentencing Reform Act of 2015 — to the full House for consideration.

The bill reduces mandatory minimum sentences for a second serious drug offense from 20 to 15 years and reduces mandatory sentences for a third drug trafficking offense or violent felony from life in prison to 25 years.

While the bill allows the reduced sentencing reforms to apply retroactively to offenders already serving time, Goodlatte said it does not do so blindly. “The bill excludes from retroactivity any offender who has a prior conviction for a serious violent felony, for which the offender served 13 months or more in prison,” he said....

The committee did approve an amendment offered by Rep. Jim Sensenbrenner (R-Wis.) to require the Department of Justice and the sentencing commission to update its 2011 mandatory minimum sentencing report. The amendment also expresses that it is the sense of Congress that mental health is a critical component of criminal justice reform. In offering his support for the amendment, which was authored by Sensenbrenner and Reps. Sheila Jackson Lee (D-Texas), Doug Collins (R-Ga.) and Cedric Richmond (D-La.), Conyers said it’s important for Congress to recognize the need to better integrate mental health treatment as part of its reform efforts.

Rep. Ken Buck (R-Colo.) offered an amendment to exempt heroin users from the legislation, but it was thrown out by the committee.

This legislative development gets us one step closer to having significant federal sentencing reform on the desk of Prez Obama before the end of this year. But I am disinclined to get too excited unless and until I hear that a full House vote and a full Senate vote are scheduled.

November 18, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Tuesday, November 10, 2015

Urging AG Lynch to ensure DOJ policies on § 851 enhancements are followed consistently

I was pleased over this weekend to be part of an effort spearheaded by Prof Kate Stith to write to Attorney General Loretta Lynch to express concerns about federal prosecutors' charging practices in drug cases.  The short letter sent yesterday to AG Lynch on this matter, which can be downloaded below, gets started and ends as follows:

We write to urge you to issue renewed guidance to all U.S. Attorneys to reiterate and enhance compliance with former Attorney General Eric Holder’s September 2014 Memorandum (“Holder Memo”) instructing U.S. Attorneys not to leverage 21 U.S.C. § 851 enhancements to induce defendants to plead guilty.  Recent statements by Steven H. Cook, head of the National Association of Assistant United States Attorneys (NAAUSA), as well as field research being conducted by students at Yale Law School, suggest that at least some federal prosecutors are not consistently complying with this policy.  This creates prosecutor­-driven disparities that are plainly unwarranted....

[T]here is mounting evidence that at least some U.S. Attorneys still consider it appropriate to routinely threaten to file § 851 enhancements if defendants exercise their right to go to trial.  Last week, the Washington Post reported that Steven Cook of NAAUSA “said the rates of cooperation have not changed in part because mandatory sentences are still in play as leverage in negotiations.  The Holder memo, he said, has been interpreted differently by individual prosecutors, sometimes in the same office.  Defense attorneys ‘understand that this tool is still in our pocket.’”

Though the study is still ongoing, preliminary inquiries and data analysis by students at Yale Law School likewise reveal inconsistent application of the Holder Memos.  Moreover, prosecutors in many districts continue to wield the explicit or implicit threat of § 851 enhancements to induce defendants to plead guilty.  In numerous districts across the country, it is common knowledge that a prosecutor will almost certainly file an enhancement if a defendant elects to go to trial.  Such practices contravene the spirit and letter of the Holder Memos.

We urge you to issue renewed guidance to all U.S. Attorneys in order to ensure compliance with and consistent application of the August 2013 and September 2014 Holder Memos. Additionally, in order to foster and facilitate consistent application of federal sentencing laws nationwide, we recommend that you (1) include these policies in the U.S. Attorneys’ Manual, and (2) require U.S. Attorneys to report when they file § 851 enhancements, and their reasons for doing so pursuant to the Holder Memos.

Download Letter to Hon. Loretta E. Lynch from Professor Kate Stith_Douglas Berman_and Mark Osler

November 10, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Will new House Speaker Paul Ryan significantly help getting federal sentencing reform enacted?

The inside-the-Beltway question in the title of this post is prompted by this inside-the-Beltway report from The Hill headlined "Paul Ryan seen as boost to criminal justice reform push." Here are excerpts:

Proponents of criminal justice reform view new Speaker Paul Ryan as an ally, and see his ascension as a boost to the bipartisan push to overhaul decades-old sentencing and drug laws. Lawmakers and advocates pushing reform legislation base their optimism on Ryan’s past proposals, the signals he has sent about the way he plans to run the House — and even the Wisconsin Republican’s age.

Members of both the House and the Senate told The Hill they believe Ryan’s election last week will help smooth legislation now pending before both chambers. “It helps,” said Sen. Lindsey Graham (R-S.C.) “I think he’s sensitive to the issue and would be willing to look at sensible reform.”

Ryan included criminal justice and sentencing reforms in a sweeping anti-poverty plan he penned in 2014, when he served as chairman of the House Budget Committee. The proposal called for more flexibility within mandatory minimum guidelines judges use when sentencing non-violent drug offenders and for federal assistance in helping inmates re-enter society.

To the extent he decides to focus on the issue, Ryan could play an important role in bringing the issue to the floor this session. “I know Paul has been a supporter of the concept over the years and so one would reasonably conclude it might be a little easier,” said Rep. Steve Chabot (R-Ohio), who himself has concerns about moving too aggressively on a criminal justice overhaul.

Advocates, meanwhile, are bullish on the prospect, saying Ryan’s history and experience all bode well for reform efforts. “I think Paul Ryan sees it as something that’s part of a social fabric fix not just criminal justice reform,” said Kevin Ring, director of strategic initiatives at Families Against Mandatory Minimums (FAMM), a group that’s fighting for sentencing reforms.

Danyelle Solomon, policy counsel for the Brennan Center for Justice at New York University Law School, said Ryan is uniquely positioned to become a leader on proposals that have failed to gain traction in recent years. “With his time on the Budget and Ways and Means committees, he is well aware of the cost burden the system has on the federal budget,” she said. “Speaker Ryan has made positive comments about the need to address the criminal justice system and we’re excited to see movement.”...

Two reform bills have been offered in the House: the SAFE Justice Reinvestment Act, introduced by Rep. Jim Sensenbrenner (R-Wisc.) and Rep. Bobby Scott (D-Va.), and the Sentencing Reform Act of 2015, authored by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Rep. John Conyers (D-Mich.). The latter legislation has also been introduces in the Senate and both bills have bipartisan support....

Though Scott noted that Ryan has been an advocate for relying heavily on research in drafting social policies — something he says his bill does — he admits Goodlatte’s legislation has a better chance of getting a vote in the House. “I think it’s fair to say the bill number that reaches the floor with be Goodlatte’s bill,” he said. “The question is what gets added to it. There are a lot of provisions that would significantly improve the Goodlatte bill.”

In a statement to The Hill, Goodlatte said the Judiciary Committee is taking a step-by-step approach. "There is a growing consensus across the political spectrum that our criminal justice system is in need of reform and I am hopeful that reforms can be passed and enacted this Congress,” he said.

Reformers also draw hope from Ryan’s age. At 45, he’s two decades younger than the man he succeeded, former Speaker John Boehner (R-Ohio). “Younger members have a better sense of this issue and there is less of this binary ‘you tough on crime; me soft on crime,’” Ring said. “The younger guys aren’t burdened by the older fights, so they are freer to look at it in different ways.”

A few prior related posts about Paul Ryan and federal sentencing reform:

November 10, 2015 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Monday, November 09, 2015

Former Virginia AG explains why he finds conservative opposition to sentencing reform "so baffling"

Ken Cuccinelli, the former attorney general for Virginia, has authored this notable FoxNews commentary asserting that true conservatives should be true supporters of modern sentencing reform efforts. The piece, headlined "Criminal justice reform: Conservative states have a record of success. So why ignore it?", merits a full read. Here is how it gets started:

With Congress currently considering several different approaches to criminal justice reform, interested parties have long noted that the current situation at the federal level is untenable, featuring stubbornly high recidivism rates, a ballooning prison population, and a Bureau of Prisons that constitutes an ever-growing proportion of the Justice Department’s budget.

In short, we aren’t getting the sort of return on investment — both in terms of cost, but most importantly, public safety — that we’ve come to demand of other areas of government. In such situations, conservatives must take the lead when government has grown inefficient, which is why some recent opposition to reform from the right is so baffling.

Commentators have variously suggested that this effort is “bipartisanship at its worst,” or that our crime rate has declined in recent years because “we have taken crime more seriously” by keeping “serious criminals in jail, not letting them out” despite an entire body of scholarship to the contrary.

Unfortunately, such commentary is long on histrionics — with suggestions that essentially equate re-evaluating mandatory sentences to allow for more tailored, individualized punishments as tantamount to Congress throwing open prison doors indiscriminately — and short on facts and experience which, hitherto, conservatives have prized.

America’s crime rate has indeed fallen substantially in recent decades, but this is due in large part to a paradigm shift in what it means to be “tough on crime.” We can agree that keeping serious criminals in prison is an effective means of preserving public safety, but we must also recognize that the axiom of “putting people in jail and throwing away the key” does not apply to all offenders universally, and can actually be counterproductive.

Incarcerating non-violent offenders in the same population as more dangerous criminals has the effect of inculcating the former into a culture of criminality common among the latter, making them more of a risk to public safety upon release than when they originally went in.

“Tough on crime” policies, particularly mandatory sentences, tend to set such circumstances in stone, and vitiates the possibility of seeking out alternative, evidence-based programs that can divert amenable offenders into treatment. Such programs are more cost-effective, and most importantly, have been proven to reduce the likelihood of recidivism.

November 9, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, November 05, 2015

"Prosecutors are addicted to the War on Drugs: Inside law enforcement’s rabid defense of mandatory minimums"

The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir. Here are excerpts:

Federal prosecutors are fighting a rearguard action to defeat criminal justice reform legislation in Congress, warning that modestly dialing back harsh mandatory minimum sentences for nonviolent drug offenders would hinder their campaign against drugs amidst a heroin crisis.

“Slashing federal mandatory minimum sentences will undermine the ability of law enforcement officials to dismantle drug trafficking organizations,” a National Association of Assistant United States Attorneys white paper on “the dangerous myths of drug sentencing ‘reform'” warns.  Reduced sentences “threaten the prosecution of many of the most dangerous and high level criminals involved in drug trafficking by undermining the cooperation incentive that the current sentencing structure creates.”

Because of harsh mandatory minimums in federal and state law, many nonviolent drug dealers have been sentenced to spend much of their life behind bars — including sentences of life without parole — for crimes as minor as delivering LSD to fellow Deadheads. Defending the justice or proportionality of such sentences is a rather difficult task. So NAAUSA isn’t focusing on that.  Instead, the group, which represents many federal prosecutors, is warning that they need the threat of harsh sentences to scare low level offenders into selling out their superiors: the big-time kingpins who have blood on their hands.

“The leverage, the hammer we have comes in those penalties,” federal prosecutor and NAAUSA president Steven H. Cook told the Washington Post in an article highlighting the group’s case against reform. “It is the one and only tool we have on the other side.”...

Cook concedes that prosecutors need the threat of draconian sentencing to tip the scales of justice in their favor, scaring defendants into pleading guilty and snitching.  In 2013, more than 97 percent of all federal cases that weren’t dismissed (which was just 8 percent) ended in guilty pleas.  The practice effectively denies people their constitutionally-enshrined right to trial, deprives judges of their role, leads to the conviction of the innocent, and disproportionately punishes people who simply lack information to trade.

“I can understand prosecutors who want to have their jobs made easier by maintaining mandatory minimums in their current form,” says Michael Collins, deputy director of the Drug Policy Alliance’s Office of National Affairs.  “At the end of the day, the criminal justice system does not exist to make the workload of certain individuals easier.”

That federal prosecutors are defending mandatory minimums in such instrumental terms might be a concession that they can no longer make a compelling argument that such harsh sentences fit the crimes for which they are imposed....

The federal drug war grinds on despite the Obama Administration’s calls for moderation. Most notably, Cook makes the startling suggestion, according to the Post, that then-Attorney General Eric Holder’s 2013 memo calling for U.S. Attorneys to limit the use of mandatory minimums is being ignored or resisted by some prosecutors....

Cook emails that “one of the fundamental concepts of any criminal justice system is that it have a deterrent effect.  Long prison sentences serve to deter people.  Trafficking in heroin is a highly profitable business and to offset the attractiveness we have to make the cost of engaging in that activity high.”

But there is no evidence that harsh prosecutions actually do anything to keep heroin off the streets and out of users noses and arms.  To the contrary, the evidence shows that the drug war has entirely failed to limit heroin supply if we look at two standard measures: price and purity.  According to a 2012 Global Commission on Drug Policy report, “since the early 1980s, the price of heroin in the US has decreased by approximately 80 percent…and heroin purity has increased by more than 900 percent.”

Indeed, the irony is that many of the most dangerous things about heroin use are created not by the drug — which is no doubt plenty dangerous and addictive — but by its prohibition, which make it difficult to measure dosage and detect dangerous adulterants like fentanyl.

The current push for reform is modest and will by no means even come close to ending mass incarceration.  But it is nonetheless historic and significant for those whose lives will be somewhat less ruined if it is passed and signed into law.  The legislation has received bipartisan support, extending beyond Congress to odd-bedfellow advocates like the ACLU, Koch Industries and a new coalition called Law Enforcement Leaders to Reduce Crime and Incarceration.

Doug Jones, a member of the law enforcement reform group and the former US Attorney for the Northern District of Alabama, says that he understands that prosecutors are concerned for their communities and also, he says, with managing their heavy caseloads. But he says that pro-reform law enforcement officials “are looking at a broader perspective” that takes account of the toll of having some of the highest incarceration rates on earth.  “More incarceration is not necessarily the safest way to do things.”

To make his case, Cook is trying to turn the political clock back to 1990, warning that “reforms” may already be causing “homicides and other violent crimes” to be “spiraling upward in cities across the country.”  This is similar to the argument in favor of a so-called “Ferguson effect,” the idea that increased scrutiny of police has deterred them from doing their job and thus caused more crime.  This idea persists despite statistics showing that there is no demonstrable nationwide violent crime spike.  In reality, violent crime has continued its long decline....

Cook states that harsh mandatory minimums are “the one and only tool we have.” But prosecutors, as evidenced by the fact that so few cases ever make it to trial, wield incredible power in the courtroom and have too often supplanted judges as the real arbiter of justice. In a just society governed by the rule of law, the only tool that prosecutors are supposed to have in court is evidence that proves beyond a reasonable doubt that a defendant committed a crime.  And when they prove it, the punishment should be proportionate.

As American Bar Association standards state, “The duty of the prosecutor is to seek justice, not merely to convict.”  For many federal prosecutors, however, the maximum amount of incarceration is still the favored solution.

November 5, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, November 02, 2015

House Judiciary Chair Goodlate makes case for sentencing reform by attacking sentencing reform

The somewhat curious title of this post is prompted by this somewhat curious new National Review commentary authored by Representative Bob Goodlatte, chair of the House Judiciary Committee. The piece is headlined "Reduce Prison Sentences, but Not for Violent Offenders: The release of dangerous criminals shows why Congress needs to act on criminal-justice reform." Here are excerpts from the piece (with a few patently false phrases emphasized):

Starting this month, thousands of federal inmates are set to be released early from federal prison, including serious violent felons and criminal aliens.  This action is not the result of legislation passed by the people’s elected representatives in Congress.  Rather, it is a result of a decision made by unelected officials appointed to the United States Sentencing Commission.

In early 2014, the Sentencing Commission adopted an amendment to reduce the sentences for certain drug-trafficking and distribution offenses, including trafficking offenses that involve drug quantities substantial enough to trigger mandatory minimum sentences.  The Sentencing Commission made these reductions retroactive, applying them to tens of thousands of inmates in the Bureau of Prisons’ custody who are serving sentences for drug offenses.  Since then, thousands of federal inmates have filed motions with their courts of jurisdiction for sentence reductions and have been granted approval for early release.

The problem with the Sentencing Commission’s changes to federal drug-sentencing requirements is that they are applied without regard to the inmate’s criminal history and public safety.  Consequently, criminals set to be released into our communities as a result of the Sentencing Commission’s amendment include inmates with violent criminal histories, who have committed crimes involving assault, firearms, sodomy, and even murder.

There is growing consensus in Congress that certain federal drug sentences, such as mandatory life imprisonment for a third drug-trafficking offense, are unnecessarily harsh and contribute to prison overcrowding and a ballooning federal prison budget.  However, the Sentencing Commission is going about sentencing reform the wrong way.  Its new guidelines blindly apply sentencing reductions to all federal inmates without considering the impact an early release would have on the safety of our communities.

The Sentencing Commission’s unilateral changes show why it is imperative that Congress act on sentencing reform and other criminal-justice issues.  If Congress does not act, the matter is left in the hands of an entity that has demonstrated it cannot be trusted to act responsibly.  Fortunately, leaders in the House of Representatives and the Senate agree that our nation’s criminal-justice system needs improvement and are working on bipartisan legislation to do just that....

Recently, I joined several leaders of the committee in introducing our first piece of bipartisan legislation to reform federal sentencing requirements and simultaneously prevent serious violent criminals from getting out early.

That bill — the Sentencing Reform Act — makes the criminal-justice system more fair, efficient, and fiscally responsible.  It reduces certain mandatory minimums for drug offenses, including cutting the third-strike mandatory life sentence to 25 years and the second-strike mandatory sentence from 20 to 15 years. The bill also broadens the mechanism for non-violent drug offenders to be sentenced below the mandatory minimum sentence and provides judges in those cases with greater discretion in determining appropriate sentences.  These changes will help save taxpayer dollars and take an important step toward reducing crowding in our federal prisons and the amount of federal taxpayer dollars spent on incarceration each year.

Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people.  Most important, the bill contains major limitations on the retroactive application of these reforms, to ensure that serious violent criminals serve the full time for their crimes in federal prison and do not get out of prison early.  This is in stark contrast with what the Sentencing Commission has done to federal sentencing requirements....

While the fruit of the Sentencing Commission’s reckless changes is laid bare beginning this month, the House Judiciary Committee will move forward with the Sentencing Reform Act so that sentencing reform is done responsibly. Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people.

The phrases I have highlighted are patently false because the instructions that the US Sentencing Commission giver to judges when deciding whether to reduce a defendant's sentence based on lowered guidelines includes an express requirement that the "court shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment in determining: (I) whether such a reduction is warranted; and (II) the extent of such reduction." In other words, the USSC does not call for retroactive application of reduced guidelines without regard for public safety.  Rather, the USSC expressly calls for judges to consider, on a case by case basis, whether reducing a sentence for an inmate poses a danger to any person or the community.  

That all said, while this op-ed seems to me to be taking unfair pot shots at the US Sentencing Commission, I think it is wise to suggest that Congress can and should feel urgency to enact its own federal sentencing reform if it is concerned in any way with how the US Sentencing Commission has been trying to reduce the federal prison population.  Both the Sentencing Commission and the US Department of Justice have been telling Congress for a number of years that federal prisons are badly overcrowded and are using up too much of the federal crime control budget.  The Commission's decision to reduce drug sentences across the board and to make these changes retroactive reflect, in part, a wise recognition by the Commission that it needed to do something significant ASAP to reduce federal prison overcrowding.  Notably, though many members of Congress have now been talking seriously about federal sentencing reforms for nearly three years, no actually refoms have become law.  

November 2, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, November 01, 2015

The simple, sound and shrewd ACCA/Johnson fix in SRCA 2015

I have now had a chance to give extra thought to the proposed statutory changes appearing in Section 105 of the Senate's Sentencing Reform and Corrections Act of 2015 (basics of SRCA 2015, S. 2123, here).  When I first looked at this Section, labelled an "Amendment to certain penalties for certain firearm offenses and armed career criminal provision," I was a bit surprised to see it did not seem to directly address or respond to the Supreme Court's recent ruling in Johnson v. United States striking down a portion of the Armed Career Criminal Act as unconstitutionally vague.  But upon reflection, I have come to the conclusion, as reflected in the title of this post, that the proposed statutory changes appearing in Section 105 of SRCA constitute a simple, sound and shrewd way to fix some of the broader ACCA problems that Johnson reflects.  Let me explain my thinking here.

1.  Though the Johnson vagueness ruling addressed the most confounding statutory provision of ACCA (the so-called "residual clause"), the ruling is really just a symptom of the broader ACCA disease.  That broader disease concerns the fact that, under current federal law, the same basic offense of being a felon in possession of a firearm (FIP) has a statutory maximum prison sentence of 10 years UNLESS the offender has three ACCA-qualifying priors, in which case the offender faces a mandatory minimum 15-year prison sentence.  Because the stakes of what qualifies as an ACCA prior is now so consequential, there is (understandably) lots and lots of litigation over what state priors trigger ACCA.

2.  The Johnson ruling, culminating a decade of Supreme Court (and lower court) struggles with one clause defining ACCA predicates, eliminated one source of uncertainty and litigation by declaring that clause unconstitutionally vague.  But lots of other parts of ACCA have also generated uncertainty and litigation, and the Johnson ruling did nothing to resolve or minimize the importance of all that uncertainty and litigation.  Moreover, if Congress were to try to just "fix" the language of the ACCA residual clause that Johnson struck down, litigation would be sure to follow concerning the meaning of any fix language. 

3.  Into this enduring ACCA morass comes Section 105 of SRCA which, through a relative tweak, arguably fixes all these problems by raising the FIP statutory prison maximum to 15 years while lowering the ACCA mandatory minimum to 10 years.  Through this simple change, there will no longer be a critical imperative for prosecutors (or probation officers) or sentencing judges (or appellate courts) to figure out in every close case whether an FIP offender qualifies for ACCA.  If SRCA 2015 becomes law, in the many cases that legally are "close calls," federal judges will reasonably conclude that a prison sentence in the range of 10 to 15 is about right, and there will be no need to have a major legal fight over what exactly qualifies as an ACCA predicate.  (In addition, if Section 105 of SRCA 2015 is enacted, judges will have greater discretion to punish harshly the worst FIP offenders who do not trigger ACCA and will also still be compelled to give at least 10 years to FIP offenders who clearly qualify for ACCA penalties.)

4.  The US Sentencing Commission's recent statement concerning SRCA 2015 discusses why its own extensive research on mandatory minimums support this reform (and why it would, in turn, be just to make this change retroactive):

The Commission observed [in its extensive study of mandatory minimum sentencing provisions] that the ACCA’s mandatory minimum penalty can apply to offenders who served no or minimal terms of imprisonment for their predicate offenses, which increased the potential for inconsistent application insofar as the 15-year penalty may be viewed as excessively severe in those cases.  To mitigate both the over-severity and disparate application of the ACCA, the Commission recommended that Congress consider clarifying the statutory definitions in the ACCA and reduce its severity.

5. By making its ACCA changes retroactive, SRCA 2015 not only could bring more equitable and just outcomes to many offenders previously subject to severe ACCA terms based on debatable interpretations of ACCA priors, it also could potentially short-circuit lots of complicated (and expensive) post-Johnson habeas litigtion that might well divide lower courts and take years to resolve through layers of complicated federal appeals. (Post-Johnson litigation is already starting to divide lower courts on some issues, and lots of enduring litigation messiness (and costs) seem inevitable without the SRCA fix and its retroactivity provision.)

I could go on and on (especially to praise the particular way SRCA 2015 makes its ACCA fix retroactive), but I fear this post is already more than long enough.  And I am be especially interested in hearing from those laboring in the post-Johnson ACCA litigation trenches concerning whether they share my latest feeling that the SRCA 2015 fix may now represent the best of all possible ACCA worlds. 

November 1, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

Thursday, October 29, 2015

US Sentencing Commission provides estimates on likely impact of sentencing reforms in SRCA 2015

I have been remiss for failing to highlight in this space the notable analysis recently done by the US Sentencing Commission in conjunction with the Senate's work on the Sentencing Reform and Corrections Act of 2015 (basics of SRCA 2015, S. 2123, here).  That analysis appears in full form in this extended statement by USSC Chair Patti Saris to the Senate Judiciary Committee, and it appears in summary form in this USSC news release praising the Committee's passage of SRCA 2015 through to the full Senate.  Here are the key data appearing in short form in the press release: 

According to the Commission’s analysis, key provisions of S. 2123 would:

• Provide retroactive application of the Fair Sentencing Act (FSA), which could allow 5,826 offenders currently in prison to receive an approximate 20 percent reduction in sentence.

• Permit certain offenders who are currently subject to the 10-year mandatory minimum penalty to be subject to the 5-year mandatory minimum instead, which would reduce the sentence of 550 offenders annually by approximately 19.3 percent.

• Broaden the safety valve to provide greater relief to more low-level, non-violent offenders, which would reduce the sentence of 3,314 offenders annually by nearly 20 percent and save 1,593 federal prison beds within 5 years of enactment.

• Reduce mandatory minimum penalties for recidivist drug offenders with prior drug felony convictions from 20 years to 15 years, and reducing the mandatory life imprisonment penalty for certain offenders to 25 years while both narrowing and expanding the types of prior offenses that could trigger a mandatory minimum.

• Reduce the mandatory minimum sentencing enhancement for using a firearm in the commission of a violent crime or drug offense from 25 years to 15 years, and narrow the circumstances in which multiple sentencing enhancements apply, which would reduce the sentence of 62 offenders annually by 30.4 percent.

• Reduces the mandatory minimum penalty under the Armed Career Criminal Act from 15 to 10 years, which would reduce the sentence of 277 offenders each year by approximately 21.6 percent. The bill would apply this provision retroactively, which, if granted, could result in a sentence reduction for 2,317 offender currently in federal prison.

Recent prior related posts on SRCA 2015:

October 29, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Noting the potential sentencing reform benefit from the latest budget deal

This notable new BuzzFeed article highlights an interesting link between the new budget deal and on-going sentencing reform efforts inside the Beltway.  The extended headline of the article tells the basic story: "Criminal Justice Advocates Get A Gift From The Budget Deal: More Time: Lawmakers think they will now have time early in 2016 to pursue the bipartisan criminal justice package that would reduce some federal mandatory minimum sentences."  Here are excerpts:

Efforts to change the nation’s criminal justice system got a major boost Tuesday. Congressional leaders began pushing a budget deal Tuesday to raise the debt limit and avert a shutdown until 2017.  Although the funding bill is completely separate from the criminal justice legislation lawmakers have been working on, if approved, it would give Congress more breathing room to focus on criminal justice changes before the 2016 election heats up.

With funding for the government set to expire in mid-December, advocates had been concerned that fiscal issues would dominate Congress through this year and potentially into next year, delaying the measure which has bipartisan support and took more than three years to negotiate.

But if the budget deal is signed into law, it could add to the momentum building in favor of the criminal justice legislation, which would reduce some federal mandatory minimum sentencing.  “This is the best possible scenario for us that the budget stuff is working itself out,” said Holly Harris, executive director of the bipartisan U.S. Justice Action Network. “This has cleared the way for our legislation.”

Republican leaders in the Senate even addressed the issue in their weekly press conference Tuesday afternoon, which in itself was a major victory, Harris said.  “Just the fact that leadership is talking about this bill is monumental,” she said.  “A year ago, many thought this wasn’t possible. In fact, two months ago no one thought this was possible.”...

During the Senate GOP leadership’s weekly press conference Tuesday, Senate Majority Whip John Cornyn urged the Senate to take up the issue as soon as possible. “The president’s in Chicago today talking about criminal justice reform, and as you know, there’s a bipartisan criminal justice reform bill, one composed of sentencing reforms and also prison reforms,” Cornyn told reporters.

“This is one area where I’ve told the majority leader that with that kind of broad bipartisan support, hopefully after we get through the rest of this year’s business, this is something we could take up,” he said. “The House is considering a similar bill. And with the president’s support of the idea of criminal justice reform, it’s seems like the time is right. “

Senate Majority Leader Mitch McConnell expressed support for bringing up the legislation to the floor for a vote, but did not give a timeline. “It’s certainly going to get floor time in this Congress, but I can’t give you an exact time at this point,” he told reporters.

Senate GOP aides believe it will be hard to take up the issue before next year even if the budget is taken care of in the coming days. But it does give senators who are supporting the measure the time and energy needed to lobby their colleagues and gear up for a vote when Congress returns in January. “I’m just encouraged by the momentum on criminal justice reform overall,” New Jersey Democratic Sen. Cory Booker told BuzzFeed News. “This bipartisan, bicameral energy is encouraging. It shows that we can come together and get things done.”

October 29, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Friday, October 23, 2015

Would Paul Ryan as House Speaker dramatically improve prospects for federal sentencing and marijuana reform?

Great_white_hope_rectThe question in the title of this post post prompted by this news that "Rep. Paul Ryan officially declared his bid for House speaker Thursday after consolidating the support he needs to be elected by his colleagues next week," and Ryan's prior comments about sentencing reform and marijuana policy.  Specifically, as detailed in a bunch of older prior posts linked below, Ryan back in 2012 stated that he favored allowing states to set their own marijuana policies, and in 2014 Ryan expressed support for the Smarter Sentencing Act and released an anti-poverty plan that stressed the need for federal sentencing reforms in order "to tap [past offenders'] overlooked potential and ameliorate the collateral impact on children and families."

Of course, past statements and policy positions often get conveniently forgotten or can even change dramatically when a politician pursues a new leadership role at a new political time.  (For example, as stressed in this post on my marijuana reform blog Donald Trump once suggested full legalization would be the only way to "win" the drug war, but to date nobody in the MSM has asked about this position or pressed him about his views on the potential economic benefits of marijuana legalization.)   So it is possible that Ryan as House Speaker would not prioritize or even now fully support significant federal sentencing and marijuana reforms.  

But, as regular readers know well, there is a significant generational divide (especially within the GOP) concerning federal criminal justice reform issues.  Generally speaking, younger politicians like Ryan have been much more supportive of reform (and vocal about their support of reform) than older folks like out-going House Speaker John Boehner.  Consequently, even if Ryan as House Speaker might not be inclined to make criminal justice reform a top priority, I suspect the younger GOP generation with which he is linked could considerably increase the chances that the House become much more invested and aggressive in making big federal criminal justice changes in the months and years ahead.

A few prior related posts about (future long-time House Speaker?) Paul Ryan and the true conservative case for federal sentencing and marijuana reform:

October 23, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, October 22, 2015

SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5

This press release from Senate Judiciary Committee Chairman Chuck Grassley reports on the continued legislative movement of the Senate's big Sentencing Reform and Corrections Act of 2015 (SRCA 2015, S. 2123).  Here are the basics via the press release:

The Senate Judiciary Committee today passed the Sentencing Reform and Corrections Act, which grants judges greater sentencing flexibility for certain low-level drug offenders and establishes recidivism reduction programs, while targeting violent criminals. The bill passed the committee by a vote of 15-5.  The bill passed today includes minor clarifications to the original bill text.

The bill is the product of a thoughtful bipartisan deliberation led by Senate Judiciary Committee Chairman Chuck Grassley and Assistant Democratic Leader Dick Durbin.  Original cosponsors include Senators John Cornyn (R-Texas), Sheldon Whitehouse (D-R.I.), Mike Lee (R-Utah), Charles Schumer (D-N.Y.), Lindsey Graham (R-S.C.), Patrick Leahy (D-Vt.), Cory Booker (D-N.J.) and Tim Scott (R-S.C.).  Other cosponsors include Senators Thom Tillis (R-N.C.), Chris Coons (D-Del.), Jerry Moran (R-Kan.), Dianne Feinstein (D-Cal.), Jeff Flake (R-Ariz.), Richard Blumenthal (D-Conn.), Al Franken (D-Minn.) and Amy Klobuchar (D-Minn.). 

“Today’s bipartisan Committee vote demonstrates the broad consensus that we can thoughtfully addresses the most serious and complex matters in prison sentencing. This bill preserves sentences necessary to keep violent offenders and career criminals out of our communities while addressing over-incarceration concerns and working to reduce recidivism. I’m grateful for the hard work and support of my colleagues on both sides of the aisle, and look forward to action by the full senate to move this historic reform forward,” Grassley said....

The bill narrows the scope of mandatory minimum prison sentences to focus on the most serious drug offenders and violent criminals, while broadening and establishing new outlets for individuals with minimal non-felony criminal histories that may trigger mandatory minimum sentences under current law.  The bill also reduces certain mandatory minimums, providing judges with greater discretion when determining appropriate sentences, and preserves cooperation incentives to aid law enforcement in tracking down kingpins.    

In addition to reducing prison terms for certain offenders through sentencing reform, qualifying inmates can earn reduced sentences through recidivism reduction programs outlined in the CORRECTIONS Act introduced by Cornyn and Whitehouse. The bill also makes retroactive the Fair Sentencing Act and certain statutory reforms that address inequities in drug sentences.

For more information on the Sentencing Reform and Corrections Act of 2015, see the following documents: 
•    Text of Bill Passed in Committee
•    One-page bill summary
•    Section-by-section

Recent prior related posts on SRCA 2015:

October 22, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Monday, October 19, 2015

An ever-growing list of notable witnesses for Senate hearing on Sentencing Reform and Corrections Act of 2015

As noted in this prior post, this week is a big one for consideration of the Senate's remarkable Sentencing Reform and Corrections Act of 2015 (SRCA 2015, S. 2123).  The fun starts this this afternoon with this big hearing on the bill before the full Senate Judiciary Committee.  I am quite excited for this hearing, in part  because everytime I check the official Senate hearing page, I see another interesting witness added to the witness list.  As of Monday morning, here is the current roster of witnesses slated to testify:

I am very interested to hear what all nine of these notable witnesses have to say about SRCA 2015. Based on prior lectures and writings, I think I can safetly predict that three or four of these witnesses will be quite supportive of most or all of the bill, and that two or three of these witnesses will be quite critical of most or all of the bill. But I am unsure whether traditional supporters of federal sentencing reform will be advocating for SRCA 2015 to be even more expansive in its reforms and whether traditional critics of federal sentencing reform will assail all or only specific parts of SRCA 2015 in its current (complicated) form.

I am cautiously hopeful that there will be some submitted written testimony that I can share in a future post. Even before hearing any of the coming advocacy for and against the bill, the very fact that the witness list for this hearing is so long reinforces my sense (and fear) that passage of a big reform bill through both house of Congress remains an uphill and uncertain battle for reform advocates.

Recent prior related posts on SRCA 2015:

October 19, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4)

Friday, October 16, 2015

Notable new polling on distinct sentencing/punishment issues

Via two of my favorite crime and punishment bloggers, I see that there are two new polls about public views of two different sets of sentencing and punishment issues:

For a host of reasons, I am not sure these polls are especially consequential when it comes to changing the minds or votes of established politicians.  After all, as I discussed in this recent post about medical marijuana reforms consistently polling at 90% support, we long ago would have seen an end to blanket federal marijuana prohibition if elected officials were very responsive to public polling on all these issues.  Still, these polls still provide a useful snapshot of some public perceptions of sentencing reform debates, and they also might lead even established politicians to be more (or less) confident about how aggressive they should be in their efforts in this arena.

October 16, 2015 in Death Penalty Reforms, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, October 14, 2015

Senate Judiciary Committee moving forward next week on Sentencing Reform and Corrections Act of 2015

Earlier today I received an e-mail alert from Families Against Mandatory Minimums reporting this notable federal sentencing reform news from Capitol Hill:

There will be two important events happening in Washington, DC next week -- the U.S. Senate's Sentencing Reform and Corrections Act (S. 2123) is starting to move!

The first step to turn the Senate's sentencing reform bill into a law is to have the bill reviewed and approved by the U.S. Senate Judiciary Committee, a group of 20 Senators that meets regularly.

But first, on October 19, the Senate Judiciary Committee will hold a hearing on sentencing reform. Experts will discuss the need to reform mandatory minimum sentencing laws, and Senators can ask and get answers to their questions.... Then, on October 22, the Senate Judiciary Committee will review the bill, vote on whether to make any changes to it, and vote on whether to send the final bill to the full U.S. Senate.

The full details of the events are below. If you can't come to Washington for the hearing and markup in person, you can watch them online.

BILL HEARING

When: Monday, October 19, 2015, 3:00-4:30 p.m. ET

BILL REVIEW

When: Thursday, October 22, 2015, 10:00 a.m. ET

Recent prior related posts on SRCA 2015:

October 14, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Charles Koch Institute produces great set of short videos urging crimnal justice reforms

I am really intrigued, and really impressed, by this new set of one-minute videos created by the the Charles Koch Institute under the banner "Criminal Justice and Policing Reform Explainer."   Here are the topics and links to the videos, and I have embedded the one on mandatory minimums below: 

October 14, 2015 in Collateral consequences, Fines, Restitution and Other Economic Sanctions, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (0)

Monday, October 12, 2015

"The Reverse Mass Incarceration Act"

Mass_Inc_CoverThe title of this post is the title of this intriguing new idea/report coming today from the Brennan Center for Justice.  Here is the report's introduction:

Leaders across the political spectrum agree: The United States must end mass incarceration.  But how?  What bold solutions will achieve this change?

Our prison crisis has many causes. One major contributor: a web of perverse financial incentives across the country that spurred more arrests, prosecutions, and prison sentences. A prime example is the 1994 Crime Bill, which authorized $12.5 billion ($19 billion in today’s dollars) to states to increase incarceration.  And 20 states did just that, yielding a dramatic rise in prison populations.

To reverse course, the federal government can apply a similar approach. It can be termed a “Reverse Crime Bill,” or the “Reverse Mass Incarceration Act.” It would provide funds to states to reduce imprisonment and crime together.

The United States has 5 percent of the world’s population, yet has 25 percent of the world’s prisoners.  If the prison population were a state, it would be the 36th largest — bigger than Delaware, Vermont, and Wyoming combined.  Worse, our penal policies do not work.  Mass incarceration is not only unnecessary to keep down crime but is also ineffective at it.  Increasing incarceration offers rapidly diminishing returns.The criminal justice system costs taxpayers $260 billion a year.  Best estimates suggest that incarceration contributes to as much as 20 percent of the American poverty rate.

During the crime wave of the 1970s and 1980s, lawmakers enacted stringent laws to instill law and order in devastated communities. But many of these laws went too far.  The federal government played an outsize role by financially subsidizing states to incarcerate more people.  Today, the federal government sends $3.8 billion to states and localities each year for criminal justice.These dollars are largely focused on increasing the size of our justice system.

But times have changed.  We now know that mass incarceration is not necessary to keep us safe.  We now know that we can reduce both crime and incarceration. States like Texas, New York, Mississippi, and California have changed their laws to do just that.  For the first time in 40 years, both crime and incarceration have fallen together, since 2008.

How can this momentum be harnessed into action? Just as Washington encouraged states to incarcerate, it can now encourage them to reduce incarceration while keeping down crime. It can encourage state reform efforts to roll back prison populations.  As the country debates who will be the next president, any serious candidate must have a strong plan to reform the justice system.

The next president should urge Congress to pass the Reverse Mass Incarceration Act. It would encourage a 20 percent reduction in imprisonment nationwide. Such an Act would have four components:

  • A new federal grant program of $20 billion over 10 years in incentive funds to states.
  • A requirement that states that reduce their prison population by 7 percent over a three-year period without an increase in crime will receive funds.
  • A clear methodology based on population size and other factors to determine how much money states receive.
  • A requirement that states invest these funds in evidence-based programs proven to reduce crime and incarceration.

Such an Act would have more reach than any of the other federal proposals. It could be implemented through budgeting procedures. It could be implemented as a stand-alone Act. Or, it could be introduced as an amendment to a pending bill.

October 12, 2015 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)