Tuesday, October 18, 2016
"Children are Different: The Abolition of Mandatory Minimum Sentencing in Florida"
The title of this post is the title of this short essay by Paolo Annino now available via SSRN. Here is the abstract:
This essay argues that juvenile mandatory minimum sentences violate the Eighth Amendment based on the US Supreme Court's Miller v. Alabama requirement of individualized assessment and the Iowa Supreme Court's State v. Lyle application of individualized assessment to all juvenile sentencing. This essay discusses the issue of juvenile mandatory minimum sentencing in the context of recent Florida decisions.
October 18, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)
Wednesday, October 05, 2016
Leading VP candidates talk a bit (encouragingly?) about criminal justice reform their only debate
There was a little discussion of policing, sentencing and criminal justice reform at last night's vice presidential debate, and I found most notable the fact that the GOP's VP candidate Mike Pence at one point said plainly and without reservation "We need criminal justice reform." (The Democrats' GOP VP candidate Tim Kaine also talked, somewhat unsurprisingly, about the death penalty when asked how his personal faith created challenges for him in make political decisions.) Perhaps even more important than the Gov Pence's simple statement that we "need" criminal justice reform was this further explanation of what he meant in this Q&A with the debate moderator (with my emphasis added):
QUIJANO: Your fellow Republican, Governor Pence, Senator Tim Scott, who is African-American, recently spoke on the Senate floor. He said he was stopped seven times by law enforcement in one year.... He said, "I have felt the anger, the frustration, the sadness, and the humiliation that comes with feeling like you're being targeted for nothing more than being just yourself." What would you say to Senator Scott about his experiences?
PENCE: Well, I have the deepest respect for Senator Scott, and he's a close friend. And what I would say is that we -- we need to adopt criminal justice reform nationally. I -- I signed criminal justice reform in the state of Indiana, Senator, and we're very proud of it.
I worked when I was Congress on a second chance act. We have got to do a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice.
These statements reinforces my belief that, once we get fully through this election cycle, there is a really good chance that the still-growing bipartisan consensus supporting some form of federal statutory sentencing reform will finally be able to get some form of some bill through both houses of Congress and to the desk of the new President. Of course, who wins seats in Congress and who is the new Prez and VP will certainly significantly impact what ends up in a federal statutory sentencing reform bill that gets to the desk of the new Prez. But now hearing GOP's VP candidate Pence talking up the "need" to adopt criminal justice reform "nationally" has me now distinctly (and foolishly?) optimistic that some kind of statutory reforms will be signed into law sometime during the next Congress.
For more background on what both leading VP candidates have said and done on the criminal justice reform front, I recommend this new Huffington Post article headlined "Here’s How Tim Kaine And Mike Pence Measure Up On Criminal Justice: The two vice presidential candidates have pushed for similar criminal justice policies at times."
Friday, September 30, 2016
Could major federal statutory sentencing reform happen ASAP if Democrats take back Senate this election cycle?
The question in the title of this post is prompted by this notable new Politico article headlined "Ryan, McConnell split on prospects of criminal justice reform." Here are excerpts (with one line emphasized with my comments to follow):
House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell were on opposite pages Thursday on the prospects of passing criminal justice reform — another hurdle facing proponents hoping to get a bill to the president’s desk this fall.
Speaking at a news conference, Ryan (R-Wis.) doubled down on his commitment to advance legislation to reduce nonviolent drug sentencing requirements once lawmakers return to Washington in November. The issue is a top priority for Ryan personally — though his House GOP conference is lukewarm at best, with some members concerned about looking soft on crime. “I think it’s good legislation, I think the time has come, and we’re going to advance this issue as far as we can,” Ryan said.
Just a few minutes before that on the other side of the Capitol, though, McConnell offered a much different take. “It’s very divisive in my conference,” the majority leader from Kentucky said. “I’ve got very, very smart capable people, without regard to ideology, who have very different views on that issue. Whether we can take something up that controversial in that limited amount of time available, I doubt.”
Criminal justice reform has pitted big-name conservatives like the Koch brothers who back the idea against law-and-order Republicans like Sens. Tom Cotton of Arkansas and Jeff Sessions of Alabama. It's unclear whether the political risk and calculation for Republicans will change after the election. Democrats broadly favor reform.
Ryan was bullish about getting it done. “We do know we have more work to do to talk to our members about the merits of criminal justice reform,” he said. “It’s very bipartisan and it's conservatives leading the charge on this: [Rep.] Raúl Labrador, [Sen.] Mike Lee, [Rep.] Bob Goodlatte. But there are a lot of our members who haven’t looked into the issue enough, and it’s those undecided members who have not formed opinions yet that we’re going to be communicating with in the weeks ahead.”
As indicated by the question in the title of this post and the sentence emphasized, I think the "political risk and calculation for Republicans will change" dramatically if (and only if) Democrats succeed in their effort to take back control of the US Senate. Specifically, and especially because House Speaker Paul Ryan continues to press his support for reform, I think Republicans in both the House and the Senate will come to see that their best chance to get a sentencing reform bill completed with only the terms GOP advocates most fully support will be in the lame duck session before Senate leadership transitions in 2017. (Indeed, if Dems win both the White House and take back the Senate in November, I think some current Dem supports of current bills might become the ones to resist lame-duck passage in the hope of developing and passing even more progressive reform in the next Congress.)
In other words, for those most deeply concerned and interested in seeking federal statutory sentencing reform, the outcome of Senate elections may be nearly as important or even more important than the Prez election.
Thursday, September 29, 2016
New HELP Act seemingly proposes death — and mandates LWOP — for spiked heroin dealing in every case in which "death or serious bodily injury results"
In this post yesterday I noted that Representative Tom Reed, who represents the 29th Congressional District of New York, last week introduced a bill (with four co-sponsors) that would respond to the current heroin epidemic by expanding the federal death penalty. In that post, you can find Rep Reed's press release, headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," explaining the background and reasons for his proposal.
This morning, I found that this page at Congress.gov providing more information about the Help Ensure Lives are Protected (HELP) Act now has this link to the (quite short) text of Rep Reed's bill. Somewhat disconcertingly, but not really all that surprisingly, the bill is written in a way that seems to mandate federal life without parole (and permits the death penalty) in any and every case in which any user of spiked heroin suffers even serious bodily injury and even if the person distributing the heroin does not know or even have any reason to know the heroin is spiked or that it could seriously injure a user.
In other words, as I read the key text of the proposed HELP Act, this bill calls for holding any and all heroin distributors strictly and severely criminally liable for any and all serious injuries or deaths that result from a user ingesting spiked heroin. This is because the HELP Act simply amends the "Penalties" provision of the Controlled Substances Act by adding "if the mixture or substance [of more than 100 grams] containing a detectable amount of heroin also contains a detectable amount of [spiked substance like fentanyl], and if death or serious bodily injury results from the use of such substance, such person shall be sentenced to life imprisonment or death."
Of course, the Supreme Court long ago concluded that the Eighth Amendment precludes even felony murderers from be subject to the death penalty unless and until it can be shown they were at least extremely reckless in the causing of a death. Thus, because of constitutional limits, there is little chance this bill if enacted would end up sending lots of drug dealers to federal death row. But, the Eighth Amendment was interpretted in 1991 to permit Michigan to mandatorily impose LWOP on adults for just the possession of a significant quantity of drugs. Thus, if the HELP Act were to become law, there is a real reason to expect that a huge numbers of persons involved in heroin distribution throughout the US could soon be facing mandatory life sentences if anyone who gets a spiked drug gets seriously injured.
Prior related posts:
- NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers" ... UPDATE: With four co-sponsors
- Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?
- "In Heroin Crisis, White Families Seek Gentler War on Drugs"
September 29, 2016 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)
Tuesday, September 27, 2016
House Speaker Paul Ryan reportedly still eager to push for federal criminal justice reform
This new Politico article , headlined "Ryan pushes sentencing reform in face of skeptical GOP," reports that a very important politician remains very committed to trying to move along federal sentencing reforms. Here is how the piece starts:
House Speaker Paul Ryan is facing a major obstacle in his months-long quest to pass criminal justice reform: unenthused House Republicans still skittish about looking soft on crime. The Wisconsin Republican for weeks has repeated his personal desire to move a bipartisan package that would include allowing well-behaved nonviolent prisoners to be eligible for early release and easing some drug-related sentencing requirements.
It would mark a major accomplishment for the speaker, and a chance for Republicans to show racial minorities they care about issues of social justice — plus a salient, positive message countering Donald Trump’s racially charged bid for the White House.
But the odds are decidedly long. With Trump advocating for controversial policies like systematic “stop and frisk,” and the protests in Charlotte, North Carolina, against police-involved shootings causing racial tensions to flare, Ryan’s conference is not eager to vote on the matter. An internal GOP leadership “survey” last week taking House Republicans’ temperature on the issue showed that most members were lukewarm at best.
That means that if Ryan wants to make a push for criminal justice reform after the election, he will have his work cut out. “It’s not an easy thing to make these reforms, and the [Judiciary] committee has taken some time doing it; now they’re taking time educating members on it,” Majority Leader Kevin McCarthy (R-Calif.) said Monday of a package of bills drafted by the Judiciary Committee. “It is a priority for the speaker. There are concerns … so we’re getting all the questions answered.”
The Judiciary panel last year passed 11 bills to reform federal sentencing laws and improve the prison re-entry system. While the package would not eliminate mandatory minimum sentences, it would significantly reduce sentences for nonviolent drug offenders. It would also create a program to reduce recidivism rates.
The politics of criminal justice reform have soured for conservative supporters. Trump has warned repeatedly of dangerous, crime-ridden cities. And the FBI on Monday released new statistics showing that murders increased 11 percent and violent crimes rose 4 percent in the U.S. last year. Though the rates are still low by recent historical standards, it's enough to make law-and-order Republican lawmakers nervous.
While proponents argue that reform would go a long way toward easing racial tensions, opponents vow they’ll never vote against the recommendations of law enforcement during a time of unrest. (Some Republican lawmakers worry that law enforcement could come out against the pitch, though many national police groups haven’t taken a position.)
Even if Ryan managed to get a bill through the House, the Senate and its 60-vote threshold could stop it in its tracks. Hawkish Republicans, including Sens. Tom Cotton of Arkansas and Jeff Sessions of Alabama, have been sounding the alarm against criminal justice reform. Senate Majority Leader Mitch McConnell (R-Ky.) has shied from the matter because it divides his conference. Democrats by and large support the reform proposals.
Sources familiar with Ryan’s thinking say he’s not ready to relent just yet because of the charged political environment. While he wasn’t able to pass the Judiciary package in September as he originally hoped, Ryan is now eyeing the lame-duck session, by which time tensions might have eased. “I’m trying to get criminal justice reform done this session of Congress,” Ryan said last week during a speech at the Economic Club of New York. “That train is on the tracks, and I’m hoping we can get that done sooner rather than later.”
Friday, September 16, 2016
GOP Congressman Sensenbrenner explains why federal criminal justice reform is necessary to fix a "broken system" which is "fiscally unsustainable" and "morally irresponsible"
Representative Jim Sensenbrenner has a long and dynamic history working on federal criminal justice issues, and not that long ago he was an ardent supporter of many mandatory minimum sentencing provisions. But more recently, Rep Sensenbrenner has become a potent voice calling for federal reforms, and his latest pitch on that front appear in this new commentary headlined "Criminal Justice Reform Bills Are On The Table In Congress. Now It Needs To Pass Them." Here are excerpts from this piece:
In 2013, House Judiciary Chairman Bob Goodlatte (R-VA) created the Over-criminalization Task Force which examined the depth, seriousness, and complexities of the problems facing our federal criminal justice system. The findings that came from the task force allowed Members on the Committee to identify key problem areas and begin the reform process. Last year, momentum for criminal justice reform reached an all-time high. It united a wide range of law enforcement and political organizations, advocacy groups, and Congressional leaders under a common goal: to fix our broken system....
Although a large number the nation’s 2.3 million inmates deserve their place behind bars, too many low-level, non-violent individuals are caught up in broken system. Their incarceration diverts limited resources away from other priorities, such as policing and the capture and punishment of violent and career criminals. For too long, the pressing need for criminal justice reform has been put on the backburner. It has led to increasing financial burdens on taxpayers, violent outbursts in economically depressed neighborhoods throughout the nation, and the breakdown of hundreds of thousands of American families.
Fifty percent of the current prison population suffers from substance abuse problems, mental health issues, or a combination of both. Our criminal justice system is not equipped to provide these individuals with the help they need to gain control of their lives and acquire the critical work skills necessary to successfully re-enter society and the workforce. Without these basic tools, the likelihood of recidivism is high....
Each piece of legislation currently on the table addresses specific problems in the current system and offers common sense, fiscally responsible solutions that will increase public safety, support law enforcement and victims of crime, and decrease the overwhelming financial burden on hardworking taxpayers. However, none of it matters unless Congress is willing to pass legislation and President Obama is ready to sign it.
At the heart of federal criminal justice reform is the desire to create a better way forward for every American struggling under our broken system. Families ripped apart by incarceration, communities divided by a seemingly impenetrable wall between law enforcement and the neighborhoods they protect, and an ineffective justice system not only weakens the fabric of society, but hinders economic growth and opportunity for all Americans.
Three years ago, Congress began a journey to rectify the injustices in our federal criminal justice system. Right now, we have the opportunity to finish the job and pass meaningful and effective reform legislation. Our system cannot continue on its current trajectory. It’s not only fiscally unsustainable, but morally irresponsible. We must do better and we can do better.
Prior recent posts regarding some federal CJ work and statements by Rep Sensenbrenner:
- Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders
- In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform
- Rep. Sensenbrenner explains why "Now is the time for criminal justice reform"
September 16, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Sunday, September 11, 2016
NAAUSA sends letter to House members explaining its opposition of federal statutory sentencing reforms
As detailed via some prior posts linked below, the National Association of Assistant US Attorneys (NAAUSA) has been one of the most consistent and vocal opponents of federal statutory sentencing reforms that have been considered in Congress in recent years. And this group has now just posted here via its website a lengthy letter authored by Steven Cook, NAAUSA's President, addressed to members of the US House of Representatives. Here is how the letter begins, its major headings, and its concluding paragraph:
As the voice of career federal prosecutors across the country, we write to make clear our strong and unequivocal opposition to the Sentencing Reform Act of 2015, H.R. 3713. This legislation, and other bills being advanced under the euphemistic label of criminal justice and prison or sentencing “reform,” will seriously undermine our ability to disrupt and dismantle violent gangs, domestic and international drug trafficking organizations, weaken federal firearm laws, and release thousands of violent convicted felons from federal prison. To explain our concern, we would like to make three points.
1. The federal criminal justice system is not broken. ...
2. Over the last decade the federal criminal justice system has been weakened or “reformed” in significant ways, discounting the need for any further reform. ...
3. The historic reduction in violent crime rates has begun to reverse course and in many cities across the country violent crime is skyrocketing. At the same time, we are suffering from the worst opioid epidemic in the history of our Nation. Now is the wrong time to remove or further weaken the very tools that federal prosecutors and law enforcement officers need to stem the tide of rising crime and prosecute domestic and international drug traffickers, violent gangs, and other violent offenders. ...
In conclusion, the federal criminal justice system has been significantly weakened over the last decade, the federal prison population continues to drop, homicide and violent crime rates are spiraling up across the country, and we are in the grip of the worst heroin and opioid epidemic in the history of our Nation. Now is the wrong time to remove or weaken the last tools available to federal prosecutors and law enforcement agents to combat these problems.
Some prior related posts highlighting some NAAUSA advocacy:
- "Law Enforcement Lobby Quietly Tries To Kill Sentencing Reform"
- Federal prosecutors group propounds "The Dangerous Myths of Drug Sentencing 'Reform'"
- Sentencing reform group propounds "The Dangerous Myths of NAAUSA"
- "Prosecutors Rally Against Sentencing Reform, Say Build More Prisons"
- NAAUSA sends letter opposing federal sentencing reforms on behalf of forty former federal officials
Monday, August 29, 2016
Does a weekend tweet from House Speaker Paul Ryan suggest that federal statutory sentencing reform still has a chance in the months ahead?
The question in the title of this post is prompted by this weekend tweet from the account of House Speaker Paul Ryan, which includes a clip of a pro-sentencing reform speech that Speaker Ryan gave earlier this year and has this notable new sentence: "There are over 2 million people in our prisons, and a lot of them are just people who made a mistake." Ever eager to hope that federal statutory sentencing reform is not completely dead for the current year, I want to consider this tweet a positive development to that end.
That said, I learned of this tweet from this Breitbart posting, and a good bit of the posting highlights why I probably should not really get too excited or hopeful in the wake of this tweet:
In July, Ryan said he believed that Congress “overcompensated” in the 1990s by imposing tough jail sentences to combating a decades-long crime wave and a drug epidemic that destroyed communities and lives across the country. He’s now backing legislation that would slash sentences for convicted drug traffickers.
“In the 1990s, to your first point, I think government, both Republicans and Democrats, overcompensated on our criminal code. And we went too far and there are disparities — crack cocaine vs. powder cocaine — there are clear disparities and more importantly, I think that we’ve learned there are better ways of dealing with some of these problems than locking up somebody for 20 or 30 years,” Ryan told NRP host Steve Inskeep. “You end up ruining their lives, ruining their families, hurting communities, and then when they try to re-enter into society, they’re destitute.”
“So I really think there are better methods of dealing with these problems and I think that is part of criminal justice reform. I think that’s something I put out in the poverty plan that I first authored three years ago. So we intend on bringing these bills up in September,” he added.
Conservative critics have labeled the so-called reform efforts as “jailbreak” bills. For example, the Sentencing Reform and Corrections Act of 2015 (SRCA) would reduce penalties for drug traffickers profiting from poisoning communities. Neither would these drug-related penalty reduction bills significantly reduce some racial disparities, law enforcement officials say. “Blacks make up 37.5 percent of the prison population at the state and federal levels. If we released those convicted on drug charges alone the percentage of Black males in prison would drop to 37 percent — a mere half of one percent,” Milwaukee County Sheriff David Clarke testified before the House Judiciary committee.
Furthermore, the rollbacks will harm the communities they’re allegedly intended to help, say critics. “People who are convicted of a crime and imprisoned are a very small minority of the U.S. population … they comprise approximately 6.6 percent of the population,” Peter Kirsanow and a member of U.S. Commission on Civil Rights wrote in a letter to Grassley. “These people have managed to be less law-abiding than the remaining 93.4 percent of the U.S. population – quite a feat,” he wrote. “It is perhaps less of a feat when one considers that many offenders have serious additional problems that likely incline them toward criminality.”...
“This bill doesn’t touch simple possession, because there’s virtually no simple possession cases in federal court,” said prominent critic Alabama Sen. Jeff Sessions. “The Senate bill would drastically reduce mandatory minimum sentences for all drug traffickers, even those who are armed and traffic in dangerous drugs like heroin, and provide for the early release of dangerous drug felons currently incarcerated in federal prison.”
Meanwhile, drug overdoses, mostly heroin and other opioids, killed over 47,000 Americans in 2014 alone and nearly half a million in the past decade. Nearly all heroin sold in the U.S. is imported illegally from Mexico. “While Colombia has historically been the biggest source of heroin sold in the United States, Mexican output has since surpassed it, DEA officials say. Together, the two countries account for more than 90 percent of the U.S. heroin supply, and nearly all of it is smuggled into this country by Mexican traffickers,” the Washington Post reports.
Yet Ryan continues to push the bipartisan elites’ sentencing reduction agenda even as Obama continues his “stigmatize-and-federalize” campaign against local and state law enforcement — and as the Obama administration is set to free 70,000 federal prisoners. But Republicans’ efforts to partner with Democrats on leniency for criminals has stalled amid public concern. Fifty-three percent of Americans, and 68 percent of nonwhites, are “worried a great deal” about rising violent crime, according to an April Gallup poll.
The Senate sentencing-rollback bill has been stopped by opposition from multiple Senators, including Sessions and Sen. Tom Cotton. Also, President Barack Obama has rejected a proposed deal from Sen. Orrin Hatch and other Republicans leaders who have offered to back the rollback bill if Democrats support a “mens rae” rollback of white-collar business prosecutions.
Tuesday, August 09, 2016
Finding (substantive?) due process violation, federal district judge refuses to apply statutory mandatory minimum made applicable by government stash-house sting
A helpful reader alterted me to a very interesting new federal sentencing opinion authored by Gerald Austin McHugh, Jr. in US v. McLean, No. 13-CR-487 (ED Pa Aug. 8, 2016) (available here). The full 29-page McLean opinion is a must-read for all persons interested in federal drug sentencing and dynamic views on sentencing limits that might be found in the Fifth Amendment's Due Process Clause. The opinion's introduction highlights why this decision is so interesting (and might make for a very interesting case to watch if federal prosecutors appeal to the Third Circuit):
The latitude given to federal authorities in charging drug offenses has been described as creating a “terrifying capacity for escalation of a defendant's sentence.”1 [FN1: United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993).] This case exemplifies that reality, as a defendant caught by an undercover “sting” operation faces a Guideline sentence of 35 years to life imprisonment, with a mandatory minimum sentence of 25 years, because of a professed willingness to rob a drug stash house that was invented entirely by Government agents, containing a fictional amount of drugs chosen by those agents. At sentencing, Defendant Clifton McLean argued that his sentence should be reduced because the Government improperly inflated his culpability by choosing a quantity of drugs — 5 kilograms of cocaine — that would trigger such a high mandatory minimum.
In an earlier opinion, I described the historical background of ATF “sting” cases, and concern among both judges and commentators over the consequences of this particular law enforcement tactic. United States v. McLean, 85 F. Supp. 3d 825 (E.D. Pa. 2015). Although I denied Defendant’s Motion to Dismiss the Indictment, resulting in his trial and conviction, as to this issue, I agree that imposing the sentence prescribed for the quantity of cocaine charged would violate his constitutional right to Due Process of Law on the facts of this case. I have as a result imposed a sentence that excludes consideration of the amount specified by the Government, imposing only two of the three mandatory minimums for the reasons that follow.
August 9, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Monday, August 08, 2016
Broad perspectives on the narrowness of recent federal clemency and sentencing reform efforts
Two of my favorite lawprof colleagues, Erik Luna and Mark Olser, remind me why they are among my favorites through this new Cato commentary titled "Mercy in the Age of Mandatory Minimums." Here are excertps:
Recently, we stood in a backyard eating barbecue with a man named Weldon Angelos. He was only a few weeks out of federal prison, having been freed some four decades early from a 55-year sentence for selling a small amount of marijuana while possessing firearms. Weldon was not among the 562 inmates whose sentences were commuted by President Obama, including Wednesday’s historic grant of commutation for 214 nonviolent prisoners. Instead, Weldon’s release was made possible through a negotiated motion by the government that, alas, cannot be replicated in other cases.
For a dozen years, Weldon had been the poster boy of criminal justice reform for liberals and conservatives alike. His liberation is cause for celebration for those who believed the punishment did not fit the crime. Nonetheless, the Angelos case remains a cautionary tale about both the inherent ruthlessness of “mandatory minimum” terms of imprisonment and the ineffectiveness of the Obama administration’s clemency initiative.
Mandatory minimum laws bar the consideration of facts upon which a sentencing judge would normally rely. In Weldon’s case, the law compelled a 55-year sentence. It didn’t matter that Weldon was a first-time offender with no adult record or that he was the father of three young children. Nor did it matter that he never brandished or used the firearms and never caused or threatened any violence or injury....
Most of all, it did not matter that the sentencing judge — a conservative Bush appointee known for being tough on crime — believed that the punishment was “unjust, cruel, and irrational.” Ultimately, the judge was bound not only by the mandatory minimum statute but also the Supreme Court’s jurisprudence, which largely acquiesces to prosecutors’ charging decisions while providing almost no check on excessive prison terms.
Absent a doctrinal reversal by the Supreme Court (don’t hold your breath), any meaningful safeguard against misapplication of mandatory minimums will have to come in the form of legislation from Congress or from the president through the application of the clemency power. As for the former, lawmakers are considering several [reform] bills... [that] are entirely laudable, but they are also quite modest. Indeed, the Senate bill passed in April expands some mandatory minimum provisions and adds a couple of new ones to the federal code....
The positive aspects of the reform bills should be supported all the same. Sadly, legislative efforts appear to be mired in an intramural fight among Republicans, as well as hindered by Democratic intransigence toward another worthy reform, namely, a requirement that law enforcement prove a culpable mental state rather than holding defendants strictly liable. Until lawmakers can agree on a means to prevent draconian sentences, clemency will remain the only remedy for such miscarriages of justice.
Unfortunately, the federal clemency system is also dysfunctional. Weldon’s petition for clemency was filed in November 2012 — and it then sat, unresolved one way or another, for three-and-a-half years. The support for the petition was unprecedented, spanning activists, academics and experts from every political camp imaginable. While Weldon is not wealthy and could not afford high-priced lobbyists or attorneys, the facts of his case drove the story onto the pages of leading news outlets. Yet nothing happened. Even when the Obama administration launched the “Clemency Project 2014” and Weldon’s case was accepted into that program, he languished in prison as the petition slogged through the seven vertical levels of review any successful clemency case must navigate.
Clemency is meant for cases like Weldon’s, where the requirements of the law exceed the imperatives of justice. The fact that a case like his cannot receive clemency from an administration dedicated to expanding the use of this presidential prerogative lays bare the root problem we face — too much process and bureaucracy coursing through a Department of Justice that bears a built-in conflict of interest....
It was thrilling to see Weldon free, eating off of a paper plate in the light of a Utah evening. He is just one of many, though, and systemic reform of both mandatory minimums and the clemency process should be an imperative for this and the next administration.
August 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Clemency and Pardons, Criminal justice in the Obama Administration, Examples of "over-punishment", Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Sunday, July 24, 2016
Two new US Sentencing Commission "Quick Facts" on federal gun sentencing
The US Sentencing Commission late last week released two new Quick Facts publications, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format." Here are links to the latest publications and their summary description from the USSC:
In fiscal year 2015, there were 2,119 offenders convicted under 18 U.S.C. § 924(c) accounting for 3.0% of all offenders sentenced under the guidelines. The number of offenders convicted of multiple counts of section 924(c) has decreased from 174 offenders in fiscal year 2011 (7.5% of all section 924(c) offenders) to 119 in fiscal year 2015 (5.6% of all section 924(c) offenders).
In fiscal year 2015, there were 4,984 offenders convicted under 18 U.S.C. § 922(g) accounting for 7.0% of all offenders sentenced under the guidelines. The number of offenders sentenced under this statute has steadily decreased over the last five years from 5,761 in fiscal year 2011 to 4,984 offenders in fiscal year 2015.
Thursday, July 21, 2016
"An Overlooked Key to Reversing Mass Incarceration: Reforming the Law to Reduce Prosecutorial Power in Plea Bargaining"
The title of this post is the title of this paper recently posted to SSRN and authored by Cynthia Alkon. Here is the abstract:
The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior as stand-alone issues. These reform suggestions do not consider the fact that ninety-four to ninety-seven percent of criminal cases are resolved through plea bargains and how the use of this process influences incarceration rates. Prosecutors hold extraordinary power in the criminal justice system. They not only decide what cases get filed, they also decide what charges and enhancements are added, and whether there will be a plea offer. The structure of our criminal justice system, at both the state and federal level, strengthens prosecutorial power and create a plea bargaining environment with extreme power imbalances. Prosecutors use this power to put pressure on defendants to accept plea deals, which contribute to the high incarceration rates in the United States. Therefore, any reform intended to make a meaningful reduction in incarceration rates should recognize the power that prosecutors hold and include reform aimed at changing this underlying structure.
As is well documented, the United States has high incarceration rates and imprisons more people than any nation in the world. African American and Latino communities suffer even higher incarceration rates. Our incarceration rates increased dramatically in the 1980s and into the 1990s. Some commentators identify the “war on drugs” as a major contributor to increasing incarceration rates during this period. Others suggest that the increase is due to a number of factors including changes in criminal codes that increased potential penalties for crimes across the board, not only for drug crimes. One scholar, John F. Pfaff, concludes that the single biggest reason for increased incarceration rates since 1990 is not an increase in arrests, or harsher sentencing, or the drug war, but instead is an increase in the percentage of felony filings per arrest. Pfaff concludes that the reason there are more filings is because prosecutors are filing a higher percentage of cases and therefore prosecutors are the predominate reason for mass incarceration.
This article will begin by briefly describing how plea bargaining works and the often coercive atmosphere of plea bargaining that contributes to mass incarceration. This article will then discuss Pfaff’s conclusions, based on his empirical studies, that prosecutors are the key reason for mass incarceration. Building on Pfaff’s conclusions on the key role prosecutors play in mass incarceration, this article will discuss how the current structure of both state and federal codes reinforce prosecutorial power, particularly in the plea bargaining process. This article will then discuss two proposals for legislative reform that could decrease the coercive atmosphere of plea bargaining. First, this article will recommend revising how crimes are defined, reducing the number of crimes that can be charged as both misdemeanors and felonies and reducing some felonies to misdemeanors. Second, this article will recommend reducing potential punishment ranges by eliminating mandatory minimums for most crimes and for enhancements. Legislative change alone will not reverse mass incarceration, but targeted legislative reform could help to change the overly coercive atmosphere of plea bargaining. This effort can help to change the prosecutorial culture that surrounds plea bargaining and contribute to reducing incarceration rates.
Should we all share Senator Grassley's optimism about federal statutory sentencing reform's prospects?
Long time readers know my hopefulness about significant federal sentencing reform moving through the current Congress has waxed and waned, especially as key leaders and members of both houses of Congress have expressed more or less optimism about the prospects for draft legislation getting full votes. And, as this post a few weeks ago revealed, I have lately been gespecially pessimistic about the prospects for Congress to summon the spirit or find the time to get any reform bill to President Obama's desk.
But this new local article from Iowa, headlined "U.S. Sens. Grassley, Scott optimistic on sentencing reform," prompts me to become a bit more hopeful again. Here are excerpts:
U.S. Sen. Chuck Grassley, joined by a fellow Republican lawmaker from South Carolina, is expressing optimism about the prospects for passing federal criminal sentencing reform legislation.
The senior Iowa senator spoke at a news conference Wednesday at the Des Moines International Airport with U.S. Sen. Tim Scott, who gave a powerful speech on the Senate floor last week in which he described being targeted by police because of he is black. Scott was stopped by law enforcement seven times in one year while he was an elected official, sometimes for speeding, but other times simply because he was driving a new car in the wrong neighborhood or other insignificant reasons, he said.
Scott saluted Grassley's work Wednesday on justice reform issues, saying the proposed legislation has attracted a broad coalition from the far left to the far right. "This is an unusual time when we seem to have the stars aligning," he added. He described the legislation as serving the best interests of communities as well as individuals.
The Sentencing Reform and Corrections Act is authored by Grassley and co-authored by Scott. The package would reduce mandatory minimum sentences for nonviolent drug offenders and would expand prison programs intended to reduce the likelihood that inmates will re-offend. It would also reduce sentences for inmates who successfully complete those programs. In addition, the bill would make changes to the federal justice system, such as allowing people convicted of certain crimes as juveniles to expunge their criminal records if they turn their lives around.
The bill has cleared the Senate Judiciary Committee, which is chaired by Grassley, and is awaiting action by the full Senate. Meanwhile, House Speaker Paul Ryan, R-Wis., has announced the House will consider several separate pieces of legislation to address criminal justice reform. Grassley said the House proposals include addressing such issues as asset forfeiture, but he expressed confidence any differences can be ironed out in a House-Senate conference committee.
Grassley said the legislation responds to Iowans who have expressed concerns about a rising federal prison population, costs of housing them and the possibility that some people with relatively minor criminal backgrounds are receiving lengthy sentences intended for hardcore criminals. "Successfully addressing the different perspectives has not been an easy task, especially if we want to ensure that career criminals and the most violent offenders are not allowed to wreak havoc once again in their communities," Grassley said. "The work that we started more than a year ago has been a thoughtful, bipartisan deliberation that will promote opportunities to reduce recidivism while protecting our communities from violent career criminals."
My prior post expressed fear that the Sentencing Reform and Corrections Act was essentially dead in Congress, but I am certain Senator Grassley knows a lot more than I do about whether it may still have some legislative life left in it. I sure hope so.
Thursday, July 14, 2016
Scouting Mike Pence on criminal justice: likely Trump VP pick with notably mixed reform record
According to the latest headlines and alerts on my smart phone, the word today is that GOP Prez candidate Donald Trump is poised to select Indiana Gov Mike Pence as his running mate. As a supporter of sentencing reform, I am disappointed a bit that Newt Gingrich did not make the cut, as he has been a recent vocal and repeated supporter of the "Right on Crime" sentencing reform efforts. (That said, Newt often sounded like a member of the tough-and-tougher GOP crowd in the past, and thus I would not have felt confident that even a Newt pick would signal a Trumpian affinity for sentencing reform.)
Gov Pence's record on criminal justice reform is decidedly mixed, and these linked press stories about various aspects of his work as Indiana's chief executive document the basics:
From May 2013 here, "Indiana Gov. Mike Pence signs sentencing, expungement bills into law":
Indiana Gov. Mike Pence has signed bills to revamp the state's felony sentencing laws and give some offenders the ability to expunge their records. "Indiana should be the worst place in America to commit a serious crime and the best place, once you've done your time, to get a second chance," Pence said in a statement.
The sentencing legislation — House Bill 1006 — is the product of three years of work by lawmakers, judges, prosecutors and others. It's the first wholesale overhaul of the criminal code since the 1970s. It will move Indiana's system of four felony classes to one that has six felony levels. It also requires offenders to serve 75 percent of their sentences instead of the 50 percent currently required....
Pence had expressed concerns about an earlier version of the bill, saying it was too soft on offenders convicted of drug crimes. But lawmakers made changes that appeased the governor. Pence said Monday that the bill will "reform and strengthen Indiana's criminal code by focusing resources on the most serious offenses."
House Bill 1482 gives those Hoosiers previously convicted of crimes the opportunity to essentially have their records wiped clean — if they've had a sustained period without a new offense. The bill sets different standards for different crimes.
Pence the bill will strengthen their opportunities for gainful employment. Businesses will no longer be able to ask applicants if they've been convicted of felonies. Instead, they'll have to ask if they've been convicted of felonies that have not been expunged. The new law "will give a second chance to those who strive to re-enter society and become productive, law-abiding citizens," Pence said.
From March 2016 here, "Pence reinstates mandatory minimum prison terms for some drug crimes":
Gov. Mike Pence is toughening his stance toward drug dealers ahead of a likely bruising re-election campaign where he'll have to answer for Indiana becoming the nation's methamphetamine capital on his watch. The Republican signed into law House Enrolled Act 1235 on Monday, reinstating a 10-year mandatory minimum prison term for a person convicted of dealing meth or heroin who has a prior conviction for cocaine, meth or heroin dealing.
"Drug-abuse problems are not unique to our state, but I'm determined to meet this challenge head-on," Pence said. "We need to make it clear that Indiana will not tolerate the actions of criminals, and I'm pleased to sign into law HEA 1235 to increase penalties on drug dealers."
An analysis of drug-dealing convictions since criminal sentencing reform was enacted in 2014, conducted by the nonpartisan Legislative Services Agency, found just four of the 119 individuals convicted of meth or heroin dealing had a prior conviction and were sentenced to less than 10 years in prison — receiving on average 7.5 years.
More concerning for some lawmakers, including state Sen. Karen Tallian, D-Ogden Dunes, is Pence reversing course on his past actions to eliminate mandatory minimums by now reducing the ability of judges to issue the appropriate sentence for each criminal and giving prosecutors the upper hand in plea bargaining with an accused.
Given this governing histry, I am inclined to call Gov Pence comparable to Prez candidate Trump (and also Prez candidate Clinton) in the arena of criminal justice reform: if you try hard enough, you can readily find a basis to be very encouraged or a basis to be very discouraged by his statements and record.
Sunday, July 03, 2016
"Utah Senator Meets Inmate Who Inspired Sentencing Law Rewrite"
The title of this post is the headline of this recent Roll Call article reporting on a notable meeting between a prominent advocate for federal sentencing reform and a prominent (former) "poster child" defendant representing the need for reform. The article includes a short video, and here are excerpts of a story that seems worth profiling on a weekend for celebrating US freedoms:
Sen. Mike Lee has told the story of Weldon Angelos’ prison term hundreds of times, describing the 55-year sentence over three marijuana sales in 72 hours as “crazy” and “nuts.”
An improbable set of events brought the two men together Wednesday in the Utah Republican's office on Capitol Hill. The recently freed Angelos hugged the lawmaker who made him a living symbol of the push to overhaul the nation’s sentencing laws.
“I’ve been telling his story a lot,” Lee said during the meeting. “A lot of the time I was telling this good story, I would sit there and wonder, actually, I wonder if he’s going to care if I’m using his name this frequently.”
“But your story was very helpful in explaining to people why we need this legislation and why we need to reform the law,” Lee told Angelos, who has two sons, ages 19 and 17, and a daughter, age 13.
Angelos, 36 and the founder of a hip-hop music label, said he met others in prison with unjust sentences. He plans to tell his story himself in Washington in support of the bipartisan bill. The legislation appears unlikely to pass in this election-shortened year, and amid disagreements among Republicans in both chambers.
“It kept me together, and my family,” Angelos said to Lee. “Your support was amazing and I just wanted to come here and thank you personally for supporting me and your commitment to criminal justice reform.” Lee has credited Angelos' case, which has attracted national attention, for sparking his work to change sentencing laws.
The legal action that freed Angelos on May 31 is somewhat mysterious and extraordinary. There is recent action in his court case — but no sign of a judge’s order releasing him. Lee said President Barack Obama set in motion a way to reopen the case and seek his release. It wasn’t a commutation or pardon but “another type of action,” Lee said. The senator, a former assistant U.S. attorney, is among dozens of people who have urged Obama to commute Angelos’ sentence, including former U.S. District Judge Paul Cassell, who sentenced Angelos.
That shows what a lot of extra attention on a case can accomplish, said Molly Gill, government affairs counselor for Families Against Mandatory Minimums, a group that flew Angelos to Washington this week and is working to end the types of sentencing laws that resulted in his sentence. “But it also shows there are a lot a people who don’t have and are never going to have that level of support,” Gill said.
Lee said Angelos’ release does not undercut the need for the legislation, since there are others out there who can’t get relief like Angelos. “We know there’s more to be done,” Lee said. A provision in the bill would prevent prosecutors from stacking mandatory minimum sentences related to certain gun possession crimes together in one case. It would reduce that mandatory minimum sentence from 25 years to 15 years. It would also allow judges to reduce the sentence for prisoners who are in Angelos’ situation.
Angelos was a first-time offender who was arrested in 2002 after Salt Lake City police set up controlled drug deals between Angelos and a confidential informant.... A jury convicted him of 13 charges, including three counts of possession of a gun in furtherance of a drug trafficking crime. Angelos in 2004 received a five-year mandatory minimum sentence for the first charge of possession of a firearm in furtherance of a drug trafficking crime; a consecutive 25-year sentence for the second, and another consecutive 25-year sentence for the third, FAMM said.
After nearly 12 years in federal prison, Angelos was surrounded Wednesday by the dark wood and art in Lee’s office. “It’s just overwhelming,” Angelos said. “I feel like I’m in a dream.”
Prior related post:
- Weldon Angelos, poster child for need to reform federal mandatory minimums, apparently released after serving 12 years of 55-year sentence
Wednesday, June 29, 2016
US Sentencing Commission publishes "Overview of Federal Criminal Cases – Fiscal Year 2015"
On Monday, the US Sentencing Commission released this new data report, excitingly titled "Overview of Federal Criminal Cases – Fiscal Year 2015." This USSC webpage provides this summary of the report's contents and findings:
The United States Sentencing Commission received information on 71,184 federal criminal cases in which the offender was sentenced in fiscal year 2015. Among these cases, 71,003 involved an individual offender and 181 involved a corporation or other “organizational” offender. The Commission also received information on 24,743 cases in which the court resentenced the offender or modified the sentence that had been previously imposed. This publication provides an overview of those cases [and includes these key findings]:
The 71,003 individual original cases reported to the Commission in fiscal year 2015 represent a decrease of 4,833 (6.4%) cases from fiscal year 2014.
Drug cases continued to be the most common type of federal case. The 22,631 drug cases reported to the Commission in fiscal year 2015 accounted for 31.8 percent of all cases report to the Commission.
Immigration cases were the next most common, accounting for 29.3 percent of the total federal caseload. In fiscal year 2011, immigration cases were the most common federal crime; however, since that year the number of these cases has steadily declined.
In fiscal year 2015, an imprisonment sentence was imposed on 87.3 percent of all offenders. Another 7.2 percent of offenders received a sentence of probation (i.e., where no type of confinement was imposed), a rate that has decreased over time from a high of 15.3 percent in 1990.
Almost three-quarters of offenders sentenced in fiscal year 2015 received a sentence of less than five years.
Methamphetamine offenses were the most common drug trafficking offenses and were the most severely punished drug crime in fiscal year 2015.
The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty was the lowest it has been since 1993.
June 29, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)
Tuesday, June 28, 2016
Final SCOTUS order list has nine Mathis GVRs ... and I suspect hundreds more cases will be impacted
The Supreme Court this morning finished up its work before heading out on summer vacation by issuing this order list. Though the Justices granted review in eight new cases, none appear to involve criminal justice issues. But the order list still had a bit of sentencing intrigue by including nine GVRs based on its Mathis ACCA ruling from last week (basics here).
Though it is never surprising to see a spate of GVRs in the wake of any significant ruling about a federal sentencing statute, I suspect that the fall-out from Mathis will extended to many more cases because, as reported via Justice Alito's dissent, it seems the ruling means that "in many States, no burglary conviction will count" as a possible ACCA predicate offense. That reality not only can impact many past, present and future ACCA cases, but also could also echo through the application of burglary (and even other crimes) in past career offender guideline cases.
Ultimately, I would be very surprised in the impact and import of Mathis end up nearly as grand or as complicated as last Term's Johnson ruling. But the consequential sentencing math of Mathis still may be major.
June 28, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)
Thursday, June 23, 2016
California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
As reported in this Reuters piece, headlined "California lawmakers move to change sentencing law following Stanford case," the common legislative reaction by policy-makers to concerns about an unduly lenient sentence is in progress in the wake of the high-profile sexual assault sentencing of Brock Turner. Here are the basics:
Seizing on a nationwide furor over the six-month jail term handed to a former Stanford University swimmer following his conviction for sexual assault on an unconscious woman, California lawmakers on Monday introduced legislation to close a loophole that allowed the sentence. The bill, known as AB 2888, marks the latest response to the sentence given to 20-year-old Brock Turner by Santa Clara County Superior Court Judge Aaron Persky in June, which was widely condemned as too lenient. Prosecutors had asked that Turner be given six years in state prison.
"Like many people across the nation, I was deeply disturbed by the sentence in the Brock Turner case," Assemblyman Bill Dodd, one of two California state legislators who introduced the bill, said in a written statement. "Our bill will help ensure that such lax sentencing doesn't happen again."
Turner was convicted of assault with intent to commit rape, penetration of an intoxicated person and penetration of an unconscious person in the January 2015 attack. Under California law, those charges are not considered rape because they did not involve penile penetration. According to the lawmakers, current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist.
The new legislation, which was introduced in the state assembly on Monday, would eliminate this discretion of a judge to sentence defendants convicted of such crimes to probation, said Ben Golombek, a spokesman for Assemblyman Evan Low, a co-author of the bill. Golombek said that the effect of the proposed new law, which must still be approved by both houses of the legislature and signed by Governor Jerry Brown, is that Turner would have faced a minimum of three years behind bars.
Prior related posts:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
Another ACCA win for federal defendants in Mathis
The Supreme Court this morning handed down its last sentencing case this Term, and Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (available here), is another win for federal criminal defendants. Here is the start of the Mathis opinion for the Court authored by Justice Kagan:
The Armed Career Criminal Act (ACCA or Act), 18 U. S. C. §924(e), imposes a 15-year mandatory minimum sentence on certain federal defendants who have three prior convictions for a “violent felony,” including “burglary, arson, or extortion.” To determine whether a past conviction is for one of those offenses, courts compare the elements of the crime of conviction with the elements of the “generic” version of the listed offense — i.e., the offense as commonly understood. For more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense. The question in this case is whether ACCA makes an exception to that rule when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements. We decline to find such an exception.
Justice Kennedy issued a concurring opinion, and so did Justice Thomas. Justice Breyer, joined by Justice Ginsburg, issued a dissenting opinion. And Justice Alito issued his own dissenting opinion.
Thursday, June 16, 2016
Making the case that Congress should, at the very least, make the Fair Sentencing Act fully retroactive
Julie Stewart, the President of Families Against Mandatory Minimums (FAMM), has this notable new Huffington Post commentary headlined "The Least Congress Can Do on Criminal Justice Reform." Here are extended excerpts:
Five and a half years ago, I wrote an op-ed in this space in which I urged Congress to apply retroactively the recently passed Fair Sentencing Act of 2010 (FSA). The FSA reduced the indefensible disparity between crack and powder cocaine sentences from 100:1 to 18:1. Every member of the U.S. Senate, including Senator Jeff Sessions (R-AL), supported the FSA because they recognized that there was simply no scientific or public safety rationale for the disparity and yet ample evidence of its racially discriminatory effect. Yet five and a half years later, Congress still has not approved FSA retroactivity.
There are approximately 4,900 individuals still serving the crack cocaine sentences Congress repudiated when it passed the FSA. They are the people whose cases we used to illustrate why the law needed to change, yet they did not benefit. After the FSA passed, the U.S. Sentencing Commission fixed all of the non-mandatory minimum crack sentences by lowering its guidelines consistent with the new law. But the Commission only has authority to changes its guidelines, not mandatory minimum punishments set by Congress and found in statutes.
Today, legislation to make the FSA retroactive is included in a broader sentencing reform bill, which was introduced by Senator Chuck Grassley (R-IA) and is pending in the Senate.... [T]he U.S. Sentencing Commission, at FAMM’s urging and with FAMM’s support, has done all it can to reduce drug sentences and make those reductions retroactive for tens of thousands of federal prisoners. Notably, those who received retroactive relief from the Commission have reoffended at a lower rate than those who served their full sentences.
We recognize that bipartisan consensus and compromise are essential to passing criminal justice reform through the Congress. Because of the hard work of key senators and outside advocates from across the ideological spectrum, we believe that Senator Grassley’s bill would receive more than the 60 votes necessary to invoke cloture and would probably receive closer to 70 votes on final passage. But in an election year, especially a presidential election year, consensus is not enough. The bar is much higher. Unanimity, not broad consensus, is required. Without unanimity, any reform bills will require floor time and will be subject to hostile amendments that could significantly weaken them.
Unanimity is lacking today because of a number of factors. A couple of vocal but mistaken members of Congress insist that any drug sentencing reform will endanger the public, an election-year fearmongering tactic that has no basis in fact. There is also strong disagreement about whether to include minimum criminal intent requirements (“mens rea”) in any final reform bill. House Judiciary Chairman Bob Goodlatte (R-VA) and Senator Orrin Hatch (R-UT) support broad mens rea protection; the White House and most Democrats strongly oppose it. The congressional calendar presents an equally daunting challenge. We are in June of an election year. The Senate only plans to be in session for roughly 40 days between now and the November election....
For 4,900 people serving sentences Congress itself deemed unfair, members of the Senate and House need not wait a day longer. If prospects for passing a larger package of criminal justice reforms do not dramatically improve in the coming days, Congress should at least pass narrow legislation making the FSA retroactive. Those serving discredited, excessive sentences for crack offenses should not be forced to wait any longer for justice. The Sentencing Commission’s evidence suggests that giving retroactive relief to those serving excessive crack sentences does not harm public safety. To the contrary, making the FSA retroactive would save lives, money, and right a terrible wrong. That is a legacy both parties can be proud to share with their voters this Fall.
Tuesday, June 07, 2016
GOP Rep Labrador predicts "we’re going to see some of the greatest reforms in a generation" emerging from Congress
Someone should be collecting all the big talk we have heard from elected officials and pundits about the ground-breaking criminal justice reforms that are purportedly soon to happen in Congress (and, so far, just never quite seem to happen). As noted in this prior post, at least one notable commentatory was saying in summer 2013 that "momentum for sentencing reform could be unstoppable." Three years later, as reported in this local article discussing comments at a sentencing reform symposium, one notable member of Congress is still talking about momentum continuing to build:
Idaho GOP Rep. Raul Labrador says momentum is building in Congress for major criminal justice reforms aimed at reversing decades of focus on long prison terms that hit even nonviolent and first-time offenders. “I believe that we’re going to see some of the greatest reforms in a generation,” Labrador told a criminal justice reform conference at Concordia University School of Law in Boise on Monday. “Momentum is building for reform. This Congress alone, I’ve already met with President Obama twice. … This is actually one area that I think I can work with the president.”
Labrador, a Republican and tea party favorite, last year co-sponsored major, bipartisan reform legislation, but it didn’t advance. This year, a less ambitious bill is pending in both houses that includes some of the same provisions, including giving judges more discretion on whether to impose mandatory minimum sentences. “We only have 5 percent of the world’s population in the United States, and the U.S. is home to 25 percent of the world’s prison population,” Labrador said. “We should not be proud of that.”
That bill and several others have cleared the House Judiciary Committee, Labrador said, “and House Speaker Paul Ryan has expressed his support for the movement and has promised me to bring a reform package to the floor for a vote this year.”
It hasn’t happened yet, and Labrador acknowledged that hopes are fading as more of the year passes by. “It’s a little bit watered down,” he said. “They had to look at the political reality, what can pass in the Senate and the House.”
Still, he pledged to continue to push the issue, one that Labrador, an immigration and criminal defense attorney, said he started work on as soon as he arrived in Congress.
Here are some more quotes of note that emerged from this Concordia University School of Law sentencing conference:
“Eighty percent of federal drug prisoners have no history of violence, and more than 25 percent have no criminal history at all,” said Alex Kreit, professor at the Thomas Jefferson School of Law in San Diego and an expert and textbook author on controlled substances and marijuana regulation. “This, in a nutshell, is what is driving interest in federal drug sentencing reform.” Half of the federal prison population consists of drug offenders, Kreit said, though they comprise only a quarter of those admitted each year. “Part of that is the lengthy drug sentences that we have.”
Though some reforms have happened, notably congressional action in 2010 to reduce the disparity between crack cocaine and powdered cocaine sentences, federal drug sentencing laws remain largely unchanged. “I think there are a lot of people coalescing around the idea that what we have been doing hasn’t worked in the way we wanted it to work, said Wendy Olson, U.S. Attorney for Idaho. “I think all of us in criminal justice have an obligation to look at that.”
U.S. District Judge B. Lynn Winmill said his 28 years on the bench have shown him that the war on drugs has been “an abysmal failure – we certainly have not reduced drug consumption. Whatever has happened, it has not been worth the price that we have paid.”
He said its casualties have largely been low-level drug offenders who were associated with large quantities of drugs – couriers, truck drivers, addicts hired to unload trucks. “Kingpins are almost immune, in the same way that generals and commanders in chief are typically immune during wars,” Winmill said, “and if they are brought down, what happens is that they’re immediately replaced.”
Plus, though African-Americans and Hispanics use drugs at about the same rate as the general population, Winmill said, “The incarceration rate for African-Americans and Hispanics is off the charts. Now, is that implicit bias? Is it overt bias? Is it a result of a policy from Congress that reflects bias? I don’t know. But I think it certainly is something we need to think long and hard about.”
Friday, June 03, 2016
Weldon Angelos, poster child for need to reform federal mandatory minimums, apparently released after serving 12 years of 55-year sentence
Regular readers likely know the name Weldon Angelos and likely recall some of the details of his 55-year mandatory minimum federal sentence based on his convictions for low-level marijuana dealing and firearm possession. And regular readers likely will also be intrigued and heartened to read this new Washington Post story, headlined "Utah man whose long drug sentence stirred controversy is released," indicating that Weldon was released earlier this week. Here are the (somewhat mysterious) details:
One federal inmate who was released — but not under Obama’s clemency initiative — is Weldon Angelos, 36, a father of three from Utah who was sentenced in 2004 to a 55-year mandatory minimum prison term in connection with selling marijuana.
The specific circumstances of Angelos’s release are unclear because court records in his case are sealed. But after a long campaign from his supporters, including Sen. Mike Lee (R-Utah), Angelos was quietly released Tuesday after a federal court granted him an immediate reduction in sentence. He was able to immediately go home to his family without serving three months in a halfway house, as those who receive clemency are required to do. The release allowed Angelos to see the son he left at age 7 graduate from high school Thursday.
Angelos is one of the nation’s most famous nonviolent drug offenders and became a symbol of what advocates said was the severity and unfairness of mandatory sentences. His case was championed by the group Families Against Mandatory Minimums, former FBI director Bill Sessions, conservative billionaire Charles Koch and others. Three years ago, more than 100 former judges and prosecutors, former elected and appointed government officials, and prominent authors, scholars, activists and business leaders signed a letter urging Obama to grant Angelos commutation.
In February, former federal judge Paul G. Cassell, who sentenced Angelos, wrote a letter asking Obama to swiftly grant him clemency. Cassell said that the sentence he was forced to impose was “one of the most troubling that I ever faced in my five years on the federal bench” and that it was one of the chief reasons he stepped down as a judge.
But Obama never granted clemency to Angelos. The granting of mercy instead came from the Salt Lake City prosecutor who charged him in the case, according to his lawyer. “After three and half years of inaction on Weldon’s clemency petition, he is free because of the fair and good action of a prosecutor,” attorney Mark W. Osler said. “He returns to citizenship because of the actions of one individual — just not the individual I was expecting. Weldon’s freedom is a wonderful thing but remains just one bright spot among many continuing tragedies.”
A White House spokeswoman said that the White House cannot respond with details about any individual clemency case. Julie Stewart, president of Families Against Mandatory Minimums, called the release of Angelos “fantastic news and past due.”
I am inclined to guess, absent hearing any details to the contrary, that the Utah federal prosecutor agreed to what some have come to call a Holloway motion: a motion first engineered by former Judge John Glesson in the case of Francios Holloway (discussed here) by urging prosecutors to move to undo stacked federal gun charges that had resulted in acrazy-long mandatory minimum prison term.
A few of many prior related posts on Angelos and Holloway cases:
- Judge Cassell's remarkable, and remarkably disappointing, decision in Angelos
- A request for a commutation for Weldon Angelos
- A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos
- Paul Cassell, the former federal judge who sentenced Weldon Angelos to 55 years, writes directly to Prez Obama to support his clemency petition
- US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice
- So thankful for federal judges encouraging prosecutors to reconsider extreme sentence... but...
June 3, 2016 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)
Sunday, May 22, 2016
A bunch of timely and notable new Quick Facts from the US Sentencing Commission
The US Sentencing Commission has its pretty new website up and running, and my only knock on the site is that it is not easy anymore to see exacly what is new on the site. Fortunately, I somehow discovered that the Commission released two notable new Quick Facts covering federal drug sentencing and mandatory minimum sentences. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")
In addition to these two new items, the Commission also released two other timely "Quick Facts" last month, and here are links to all four of these reader-friendly USSC products:
Mandatory Minimum Penalties (May 2016)
Drug Trafficking (May 2016)
Illegal Reentry (April 2016)
Alien Smuggling (April 2016)
May 22, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (1)
Friday, May 20, 2016
Suggesting we suffer from "under-incarceration," Senator Cotton calls federal sentencing reform "dead in this year’s Congress"
As reported in this Politico article, headlined "Sen. Tom Cotton: U.S. has 'under-incarceration problem'," at least one significant opponent of federal sentencing reform is already claiming victory in his efforts to preclude any legislative changes this year to any severe federal statutory mandatory minimums. Here are the basics via Politico:
Sen. Tom Cotton on Thursday slammed his colleagues' efforts to pass sweeping criminal justice reforms, saying the United States is actually suffering from an "under-incarceration problem."
Cotton, who has been an outspoken critic of the bill in Congress that would reduce mandatory minimum sentences, smacked down what he called "baseless" arguments that there are too many offenders locked up for relatively small crimes, that incarceration is too costly, or that "we should show more empathy toward those caught up in the criminal-justice system."
"Take a look at the facts. First, the claim that too many criminals are being jailed, that there is over-incarceration, ignores an unfortunate fact: for the vast majority of crimes, a perpetrator is never identified or arrested, let alone prosecuted, convicted, and jailed," Cotton said during a speech at The Hudson Institute, according to his prepared remarks. "Law enforcement is able to arrest or identify a likely perpetrator for only 19 percent of property crimes and 47 percent of violent crimes. If anything, we have an under-incarceration problem."
Expanding upon his remarks during a question-and-answer session, Cotton said releasing felons under reduced sentences serves only to destabilize the communities in which they are released. “I saw this in Baghdad. We’ve seen it again in Afghanistan," recalled Cotton, who served in the Army during both wars. "Security has to come first, whether you’re in a war zone or whether you’re in the United States of America.” Those advocating for criminal justice reform through such measures appear to have forgotten the high-crime days of the 1980s, Cotton remarked, noting that the federal prison population is declining....
"I believe the criminal-leniency bill in the Senate is dead in this year’s Congress. And it should remain so if future versions allow for the release of violent felons from prison," he went on to say. "I will, though, happily work with my colleagues on true criminal-justice reform — to ensure prisons aren’t anarchic jungles that endanger both inmates and corrections officers, to promote rehabilitation and reintegration for those who seek it, and to stop the over-criminalization of private conduct under federal law. But I will continue to oppose any effort to give leniency to dangerous felons who prey on our communities."
Based on these comments from Senator Cotton (which can be read/seen via this link), I am now growing ever more inclined to agree with Senator Cotton's suggestion that a significant sentencing reform bill will not get through Congress before the 2016 election. Despite efforts to tweak the SRCA to appease some conservative critics, the most vocal opponents of the bill, Senators Cotton and Session, remain vocal in their opposition. In addition, as reported here, Senator Marco Rubio has recently expressed opposition to the SRCA. Perhaps most critically, I have yet to see anyone make a truly forceful political argument that any of the most critical current GOP leaders (namely Donald Trump, Mitch McConnell or Paul Ryan) ought to see great political benefits from now starting to aggressively champion federal statutory sentencing reform efforts.
That all said, I think some of the political calculations here remain fluid. It seems to me possible (though not likely) that the White House and/or leading Democrats might relent on opposition to mens rea reform, which could perhaps jump-start the stalled reform bills in the House of Representatives. Or maybe the even unpredictable Donald Trump will see some poll numbers suggesting he could improve his image with younger and minority voters by claiming he is better than the Clintons on criminal justice reform. And, not to be completely overlooked, it seems to me quite possible that lots of folks uncertain about the current national political mood on crime and punishment would feel comfortable moving forward on reforms during the lame duck period after the Nov 2016 elections.
All those speculations aside, I view Senator Cotton's latest comments as still further confirmation of my own long-standing fear that it continues to be much easier for all sorts of federal political actors to talk a lot about sentencing reform than to actually convert all the sentencing buzzing into actual federal statutory reforms.
A few 2016 related posts:
- Senator Tom Cotton forcefully (and somewhat thoughtfully) makes his case against the current version of SRCA 2015
- GOP empire striking back against federal sentencing reform efforts in Congress
- Mark Holden, GC at Koch Industries, makes "The Factual Case for Criminal Justice Reform"
- Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."
- Is the Supreme Court fight already starting to "doom" federal statutory sentencing reform?
- Notable new comments and commitments on criminal justice reform from GOP House Speaker Paul Ryan
- Quick (inside-the-Beltway) reflections on the latest odds of those inside-the-Beltway getting federal sentencing reform done in 2016
- The latest news about the faltering state of federal statutory sentencing reform
- "Senators Announce New Provisions & Cosponsors to Bipartisan Sentencing Reform and Corrections Act"
- Senator Jeff Sessions (and thus Donald Trump?) comes out swinging against revised SRCA
- An effective accounting of why "Sentencing Reform is Seriously Stuck"
Thursday, May 19, 2016
Major sentencing reform becomes reality in Maryland
One of the nicknames for Maryland (which happens to be the state where I grew up) is the "Free State." And today, as reported in this new Baltimore Sun article, the state has now enacted criminal justice reforms that help justify the continued appropriateness of this nickname. Here are the details:
Maryland officials are about to take steps to reduce the state prison population by more than 1,000 inmates while plowing millions of dollars into crime prevention.
Gov. Larry Hogan on Thursday signed the state's broadest criminal justice legislation in decades — a package that will reduce sentencing guidelines for drug dealers, thieves and other offenders, while increasing the number of crimes that can be wiped from an offender's record fivefold. Users of illegal drugs will be steered toward treatment, not incarceration. And new rules will help the state go after criminal gangs.
The Justice Reinvestment Act, a document of more than 100 pages, is a seismic shift from policies adopted during the late-20th century war on drugs, which critics say led to governments wasting money on incarceration that did little to increase public safety. By reducing the Maryland prison population by about 1,100 people over the next 10 years, officials expect to save an estimated $80 million that can be redirected toward programs intended to prevent crime.
The bill was a compromise reached among Republicans and Democrats, prosecutors and defenders, civil libertarians and victims' rights advocates. Hogan said the bill "represents the largest and most comprehensive criminal justice reform to pass in Maryland in a generation."
But some officials and advocates say Hogan's approval, which came as he signed 144 bills in the final such ceremony this year, should begin an evaluation process. Some say doing away with mandatory minimum sentences was a mistake, as was reducing sentences for some drug offenses. Others bemoan the increased penalty for second-degree murder, and say not enough other penalties have been reduced. Most of the bill's provisions go into effect in October 2017. Some will become law this October....
Supporters say the legislation helps only nonviolent offenders. Del. Herb McMillan, an Anne Arundel County Republican, disagrees. "Pushing heroin and other opioids isn't nonviolent," McMillan told the House during debate last monh. "Reducing jail time for heroin pushers, during an opioid epidemic, does not send the message heroin pushers need to hear."
Maryland is the 30th state to pursue Justice Reinvestment, a concept pushed by Senate President Thomas V. Mike Miller and Del. Kathleen Dumais, both Democrats. pushed after learning about it at legislative conferences. In 2015, the two sponsored successful legislation that created a council to recommend sweeping changes to lawmakers. From those recommendations, the Senate and House of Delegates crafted significantly different bills. The Senate's version was friendlier toward prosecutors. It took a marathon negotiation session two days before the end of the session to reconcile the bills.
The House backed off some of its proposed sentence reductions. The Senate agreed, reluctantly, to the repeal of mandatory minimums.
Sen. Robert A. Zirkin, who as chairman of the Senate Judicial Proceedings Committee led that chamber's work on the legislation, called its passage one of the best moments of his 18 years in the legislature. "There's never been a bill that I can recall of that magnitude, and it was a completely bipartisan, roll-up-your-sleeves and get-to-work effort," the Baltimore County Democrat said. He pointed to his close collaboration with Sen. Michael Hough, a Frederick County Republican.
Zirkin said one of the most important provisions specifies that treatment, rather than incarceration, should be the sentence for a person convicted of possessing drugs such as heroin or cocaine. "That's a more effective way to get that individual out of the criminal realm and back to being a law-abiding, tax-paying citizen," Zirkin said.
Zirkin said the bill also includes "the single largest expansion of expungement, possibly in this state's history." He said it expands the list of offenses that may be erased from public records from nine to about 50. They include misdemeanors related to theft and drug possession. The change is intended to make it easier for ex-offenders to qualify for jobs, housing and education....
Baltimore County State's Attorney Scott Shellenberger, who represented the state's prosecutors through the process, said he had to swallow hard to accept reductions to mandatory minimum sentences. He said such minimums were an effective tool in striking plea bargains.
Still, Shellenberger said, the legislation moves in the right direction. He said prosecutors have sought the increase in the maximum sentence for second-degree murder to 40 years for years. And he's pleased that lawmakers included Hogan's proposal to adopt a state version of the federal Racketeer-Influenced and Corrupt Organizations (RICO) bill to go after criminal gangs.
Paul DeWolfe, Maryland's chief public defender, served on the council that made recommendations. He said he hopes lawmakers continue to build on the reinvestment process in the coming years. An oversight commission created by the bill will make recommendations for further reforms. "I do see this as a first step, and I hope that most members of the commission and the legislature think that way as well," he said.
Shellenberger, a Democrat known for his tough approach to crime, said he hopes the oversight panel will take it slow and let the state absorb the many changes in the bill over several years. "This is such a large change to the criminal justice system that I think we need to take a break and see what savings [result] and what happens as a result of this change," he said.
Wednesday, May 18, 2016
New CBO report indicates federal statutory sentencing reform would save many, many millions
This new Reuters article, headlined "Congress forecasters see major savings from sentencing reforms," reports on this new report from the Congressional Budget Office providing a "Cost Estimate" on S. 2123, the proposed Sentencing Reform and Corrections Act. Here are the basics via the Reuters report:
A criminal justice bill awaiting a vote by the U.S. Senate would reduce federal prison costs by $722 million over the next 10 years by releasing thousands of federal prisoners early, congressional forecasters said on Wednesday.
Federal benefits received by the newly released prisoners would increase direct spending by $251 million and reduce revenues by $8 million over the same period, according to the estimate by the U.S. Congressional Budget Office.
The new savings estimate buoyed supporters of the bipartisan measure to lower mandatory minimum sentences for some non-violent federal drug offenders, which is central to President Barack Obama's efforts to overhaul the country's federal criminal justice system and reduce prison overcrowding.
"We have an obligation to change the way we think about incarceration, and today’s CBO report shows that we have a fiscal obligation as well," said the bill's co-authors, U.S. senators Charles Grassley, a Republican from Iowa, and Richard Durbin, a Democrat from Illinois, in a statement.
The bill was revised last month to exclude prisoners convicted of violent crimes in an effort to garner more support among conservatives.
Tuesday, May 17, 2016
Noting that different prosecutors have notably different opinions on the SRCA
This lengthy new Daily Signal article, headlined "Is It Time for Criminal Justice Reform? 2 Law Enforcement Groups Are at Odds," details that the heads of the National District Attorneys Association and of the National Association of Assistant U.S. Attorneys have taken different positions on the leading statutory sentencing reform proposal in Congress. I recommend the piece in full, and here are excerpts:
While the unusual coalition of President Barack Obama and conservative groups hold out hope for the chance at what they call the most meaningful reform to criminal sentencing laws in a generation, frontline law enforcement officials are debating what the changes would mean for their communities.
Steven Cook, whose organization represents more than 5,500 assistant United States attorneys, believes Congress’ attempts to reduce prison sentences for certain low-level offenders will “substantially harm” law enforcement’s ability to “dismantle and disrupt drug trafficking organizations.”
William Fitzpatrick, the president of the official body representing state-level district attorneys across the U.S., views the issue differently, recently writing to congressional leaders that a Senate plan to reduce sentences for drug crimes allows “lower level offenders a chance for redemption.”
Cook and Fitzpatrick are two veteran law enforcement officials with vastly different jobs, but they have outsized roles in a debate over criminal justice reform with high stakes for the people they represent — not to mention the thousands of offenders who could benefit from changes to sentencing laws.
Fitzpatrick made headlines late last month when he authored a letter — on behalf of the National District Attorneys Association — to Senate leaders Mitch McConnell, R-Ky., and Harry Reid, D-Nev., expressing support for compromise legislation meant to reduce mandatory minimum sentences for low-level drug offenders. That endorsement has encouraged other law enforcement groups to get on board, with both the International Association of Chiefs of Police and Major County Sheriffs’ Association announcing their support last week....
But Cook, and his National Association of Assistant U.S. Attorneys, remain opposed to the legislation, and he and the organization have the ear of still skeptical lawmakers like Sens. Tom Cotton, R-Ark.; Jeff Sessions, R-Ala.; and David Perdue, R-Ga. “The notion we should save the American people money by releasing these repeat drug traffickers — and to take tools away from prosecutors needed to successfully prosecute them — is a breach of the fundamental responsibility that the federal government has to protect its citizens,” Cook told The Daily Signal.
Cook and Fitzpatrick know each other well, and have been in frequent communication about their positions on the Sentencing Reform and Corrections Act, as the Senate’s legislation is known (although Cook says he was “very surprised” when Fitzpatrick endorsed the new bill). Cook has served as an assistant U.S. attorney in the Eastern District of Tennessee for the last 29 years. Fitzpatrick is the district attorney for Onondaga County in New York, a position he’s held for 24 years.
McConnell is ultimately responsible for deciding whether to allow the full Senate to vote on the bill. In weighing his decision, McConnell is no doubt considering both sides of the argument communicated by Cook and Fitzpatrick.
As most compromises go, the legislation’s actual provisions are relatively modest. The bill aims to reduce certain mandatory minimum prison sentences created in the 1980s and ’90s during the war on drugs, which are laws that require binding prison terms of a particular length, and designed to promote consistency in punishment. Critics charge these laws have proven to be inflexible, and, by limiting judge’s discretion to rule on the specifics of a case, have led to unfair punishments for lesser offenders.
“The number one priority of the Sentencing Reform and Corrections Act is the promotion of public safety,” Sen. Mike Lee, R-Utah, a bill sponsor, told The Daily Signal. “Our criminal justice system is undermined when punishment delivered by the government does not fit the crime. Our bill better protects the American people by bringing balance back to federal sentencing.”
The bill, for example, would reduce the mandatory prison sentence required for drug offenders with two or more “serious violent felony” or “serious drug felony” convictions from life without parole, to 25 years. The bill’s authors adjusted this provision, and others, so that it does not allow violent offenders from being able to petition a judge for a retroactive early release. “To say a third-time drug offender gets 25 years instead of life, is that going to impact public safety?” Fitzpatrick said. “Not in my judgment. If you are lucky, you get 75 years on planet Earth. If you take a third of a person’s life away from him or her, that is not what I would call a slap on the wrist. In this society, we can survive safely in giving someone 25 to 30 years as opposed to life.”...
Still, for people who view drug trafficking as an inherently violent crime, as Cook does, the reform would reduce the punishment for offenders who have done more than possess and use drugs. “We are not prosecuting drug users in federal court,” Cook said. “This whole notion of low-level nonviolent drug offenders is wrong because that’s not who is coming into federal prison. We are dealing with dismantling large drug trafficking organizations.”...
According to Families Against Mandatory Minimums, a nonprofit advocating for sentencing reform, 92 percent of the 20,600 federal drug offenders sentenced in fiscal year 2015 did not play a leadership or management role in the offense, and nearly half had little or no prior criminal record.
Even so, Cook contends that prosecutors would lose a major leverage tool with weakened mandatory minimums, making it harder for them to get cooperation from defendants who would help them dismantle drug trafficking organizations. “It’s absolutely right that it [mandatory minimums] encourage people to cooperate with law enforcement officials and identify others involved in a conspiracy,” Cook said. “There are strong incentives for offenders to not help us identify other participants, and this is the only tool we’ve got. These are not easy people to deal with. They understand one thing, and that is how long they will be in prison.”
Fitzpatrick counters that prosecutors still could effectively do their jobs with less severe mandatory minimum sentences. “There will always be the give and take of plea bargaining and trying to get people to cooperate,” Fitzpatrick said. “I don’t think this statute undermines that, not when high-level offenders will still get significant prison time.”
Friday, May 13, 2016
Assailing the former drug czars for "their demagoguery" and "fact-free fearmongering"
Earlier this week I posted this commentary arguing against federal statutory sentencing reform headlined "Drug dealing is a violent crime" and authored by William J. Bennett, the director of drug control policy for President George H. W. Bush, and John P. Walters, the director of drug control policy for President George W. Bush. Now I see that Kevin Ring, Vice President of Families Against Mandatory Minimums, has this new Daily Caller commentary in response headlined "Drugs Czars Peddle Fear." Here are excerpts:
Harry Anslinger, the first commissioner of the Federal Bureau of Narcotics, once offered his insight into America’s nascent drug problem: “There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, result from marijuana usage. It’s easy to laugh off Anslinger’s ignorant comments because they were made in another era. But recent claims from two other former drug czars are similarly anachronistic and wrongheaded.
William Bennett and John Walters, who served as drug czars for Presidents George H.W. Bush and George W. Bush, respectively, wrote in a recent Washington Examiner op-ed, “Considering all that America knows about drug addiction, only the dishonest or willfully blind can claim that drug trafficking is a non-violent crime.” But who’s being dishonest? After all, words have meanings. “Violent,” for example, means to use physical force to do harm. Yet Bennett and Walters would like people to believe that Debi Campbell, a drug addict herself who sold drugs to buyers in other states through the mail, was violent. Campbell’s most violent act was opening an envelope, yet she served 17 years in federal prison. Stephanie Nodd was sentenced to 30 years in federal prison for helping a friend sell drugs for one month. Stephanie was just 23 years old and had never lifted a finger against any person. Neither Campbell nor Nodd could by any conceivable measure be considered “violent” criminals. Bennett and Walters don’t want you to know they exist. But they do, and there are thousands more just like them.
Indeed, the U.S. Sentencing Commission found that of the 22,000 federal drug offenders sentenced in fiscal 2104, only 142 — or 0.7 percent — used actual violence or threats of violence. 84 percent neither used nor had a weapon during the commission of their offense. And while Bennett and Walters are correct that most federal drug offenders are not college kids who were caught smoking a joint, they mislead readers when they describe them as “experienced traffickers.” Nine out of ten federal drug offenders played no leadership or management role. Many sold drugs solely for the purpose of feeding their own addiction. Again, words mean things. Pretending every drug sale is by definition an act of “violent victimization” is simply false....
One wonders if Bennett and Walters realize how increasingly out of step they are with conservatives across the country. Conservative governors and state lawmakers are utilizing evidence-based solutions to reduce crime and bloated prison budgets, a win-win situation for taxpayers. Many conservatives in Washington, including Senators Ted Cruz (R-TX), Mike Lee (R-UT), and Jeff Flake (R-AZ) support sentencing reform. Cruz has written, “Harsh mandatory minimum sentences for nonviolent drug crimes have contributed to prison overpopulation and are both unfair and ineffective relative to the public expense and human costs of years-long incarceration.”
But, the old drug czars say, “The cost of incarcerating drug dealers is small compared to the true cost of their crimes to society.” Even if that’s true, it’s irrelevant. The choice before Congress is not between incarcerating drug offenders and doing nothing. The more important question is whether sentencing flexibility for drug crimes can more effectively reduce recidivism — and at less cost to taxpayers — than harsh mandatory minimums. The indisputable answer, based on decades of states’ experiences, is yes.
Refusing to let any tragedy go to waste, Bennett and Walters suggest that the frightening increase in heroin overdoses is further evidence of the need for tough drug sentencing laws. What they fail to mention is that heroin dealers are already subject to stiff mandatory minimum sentences and have been for the past 30 years. This heroin epidemic is occurring under the regime Bennett and Walters helped to create. If that were not damning enough to their case, consider that the rate of illegal drug use by teenagers is the same today as it was when Bennett quit as drug czar in 1988.
I know that Bennett and Walters are genuinely concerned about making the country safer. And I agree with them that drug dealing is reprehensible and deserving of swift and certain punishment. Too often, however, their demagoguery appears calculated to exploit the public’s fears about safety the way Harry Anslinger exploited its racial prejudices decades ago. Conservatives interested in reducing crime and drug abuse should ignore fact-free fearmongering and support reforms that are rooted in science, evidence, and experience.
Prior related post:
- Former federal drug warriors assail sentencing reform efforts because "drug dealing is a violent crime"
Thursday, May 12, 2016
An effective accounting of why "Sentencing Reform is Seriously Stuck"
The quoted portion of the title of this post is from the headline of this effective new Roll Call commentary authored by David Hawkings, and it carries this astute subheadline "Presidential politics, poison pills and attack ads threaten hopes for bipartisan accord." Here are excerpts:
For more than 18 months, a rewrite of laws governing federal criminal punishments has been touted as the exception that was going to prove the rule: An effort that had so galvanized both conservatives and liberals that it would become one of the few memorable policy achievements of the current Congress. Well, the rule has held true about the deadlocked-by-polarization Capitol becoming only more so in the sessions before a presidential election. But the exception, by fits and starts, is growing ever less likely to be exceptional.
“Sentencing reform,” as it’s known on the Hill, is seriously stuck. On the surface, it may not appear that way. Just offstage, there’s a fundamental impasse that looks as if it can only be broken if one sitde caves in, thereby imperiling the highly unusual bipartisan coalition that has been the issue’s signature feature.
Complicating matters further, there are solid presidential and congressional campaign rationales for a deal, but also political arguments in opposition being at least as forcefully expressed. All this is on clearest display in the Senate, where the legislation looks to be riding a little wave of momentum but may be close to publicly coming off the rails – buffeted by anxieties about Willie Horton on the right and anger at Wall Street greed on the left....
[T]here’s a decent chance the [latest revised sentencing reform] bill will come to the floor this summer, assuming the appropriations process inevitably seizes up and there no longer is the need to devote the Senate’s time to spending bills.
Along the way, the measure is going to face one assault from powerful Republicans determined to kill it outright, and another from Republicans willing to love it to death. Ted Cruz of Texas, who returned to the Capitol this week vowing to press ahead with the combative outsider tone of his presidential campaign, and Jeff Sessions of Alabama, the first senator to endorse de facto GOP nominee Donald Trump, are leading the lambasting of the bill as going way too soft on crime.
A floor debate would give Cruz an opportunity to put his scorched-earth style for opposing legislation back on C-SPAN display. And though Trump has not taken an explicit position on the bill, his many authoritarian statements suggest he’ll take Sessions’ advice and come out emphatically against it – especially if his likely opponent, Hillary Clinton, who’s become newly critical of “mass incarceration,” decides to endorse the bill. So it’s quite easy to envision law-and-order groups producing 30-second TV spots, evocative of the legendary Willie Horton ad from the 1988 presidential campaign, chiding even the GOP backers of the bill as pro-drug-dealer criminal justice weaklings.
The other big obstacle, which might prove even more problematic, goes by the much nerdier label, mens rea. That Latin phrase, which translates as “guilty mind,” is law school shorthand for the way prosecutors are sometimes required to prove a defendant’s criminal intent in order to obtain a conviction. Under federal law, many categories of behavior are crimes only when the accused know what they’re doing is wrong and do it anyway – but some actions can bring convictions and imprisonment whether or not there’s any willful criminal intent.
Many influential Republicans, urged on by their business allies and such conservative fundraising forces as the Koch brothers, are eager to apply a blanket mens rea requirement across the federal criminal code. They say the government has too much power to convict companies and their executives without having to prove any criminal intent. And they are eyeing the sentencing overhaul bill as their best available vehicle for getting the job done.
Lawmakers and activists from the Bernie Sanders wing of the Democratic Party deride this proposal as a thinly veiled effort to deliver a permission slip for more “What, me worry?” sketchy behavior to the same sort of bad actors in the corporate and investment worlds who melted down the economy eight years ago. These liberal forces, too, have the ability to produce punchy campaign commercials targeting those in Congress who go along.
Even if the bill gets through the Senate without having to swallow the mens rea poison pill, top Republicans in the House are insisting that sentencing legislation will only move if it’s lashed together with their efforts to expand the need to prove criminal intent. The Obama administration argues the opposite, that the only way to sign a bill on sentencing this year is to negotiate protections for unwitting white collar criminals on a separate track.
One again this campaign season, it’s the small clusters of combative voices at the edges that are likely to have more power than any collaborative majority in the middle.
Not only does this piece effectively detail all the ways in which and reasons when the revised SRCA might not make it through the legislative process over the next six month, it also hints at an intriguing and perhaps disconcerting reality that for me has now emerged: GOP Prez front-running Donald Trump is now perhaps the political power-player with the greatest opportunity to "unstick" the SRCA.
If GOP Prez candidate Trump were to make nice to certain key GOP leaders like Paul Ryan and Chuck Grassley and John Cornyn (not to mention key GOP funders like the Koch brothers) by getting seriously and vocally behind the significant sentencing reform efforts by the "establishment right" (with or without mens rea reform), then I would increase my optimism about the odds of these reforms becoming a reality. But if Trump stays mum on this front, or especially if prodded by folks like Jeff Sessions and Chris Christie to oppose any reforms, I think the 2016 campaign dynamics will come to doom reform at least until we get to the lame duck period.
A few 2016 related posts:
- Mark Holden, GC at Koch Industries, makes "The Factual Case for Criminal Justice Reform"
- Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."
- Is the Supreme Court fight already starting to "doom" federal statutory sentencing reform?
- Notable new comments and commitments on criminal justice reform from GOP House Speaker Paul Ryan
- Quick (inside-the-Beltway) reflections on the latest odds of those inside-the-Beltway getting federal sentencing reform done in 2016
- "Senators Announce New Provisions & Cosponsors to Bipartisan Sentencing Reform and Corrections Act"
- Senator Jeff Sessions (and thus Donald Trump?) comes out swinging against revised SRCA
Friday, May 06, 2016
Commissioner of U.S. Commission on Civil Rights expresses concerns to Senator Grassley about efforts to reduce federal prison sentences
A helpful reader just forwarded to me a fascinating, lengthy letter authored by Peter Kirsanow, a long-serving Commissioner on the US Commission on Civil Rights, expressing concerns about federal sentencing reform efforts. I recommend everyone following the current debats over federal statutry sentencing reforms to read the full letter, which can be downloaded below. These extended excerpts from the start and body of the letter (with footnotes removed but emphasis preserved from the original) should help explain why I find it fascinating:
I write as one member of the eight-member U.S. Commission on Civil Rights, and not on behalf of the Commission as a whole. I also write as a person who lives in a high-crime, predominantly African-American neighborhood. The purpose of this letter is to express my concerns about the Sentencing Reform Act of 2015, particularly the various provisions that reduce the length of prison sentences.
Three years ago, the U.S. Commission on Civil Rights held a briefing on the Equal Employment Opportunity Commission’s [EEOC] revised guidance on the use of criminal background checks in hiring. The guidance was motivated by many of the same concerns that seem to underlie the Sentencing Reform Act — primarily that minority men, particularly African-American men, are disproportionately likely to be incarcerated and have criminal records, a concern about burgeoning prison populations, and a sense that as a society we should focus on rehabilitation, not retribution.
During our briefing, witnesses testified about the difficulty ex-convicts face in obtaining employment, a very real and troubling concern. But one would have concluded from the briefing that rehabilitation was the norm for ex-offenders, stymied only by a callous society that refused to give them a second chance. One also would have thought that ex-offenders were essentially indistinguishable from non-offenders. Further research revealed this to be far from the truth....
The Sentencing Reform Act is predicated on the belief that rehabilitation is not only possible, but likely. Yet scholarly literature indicates that a person who has been convicted of multiple offenses is always more likely to offend (again) than is a person who has never offended. Indeed, even a person who has been arrested only once is always more likely to be arrested than is a never-arrested person....
We can rest assured, then, that a substantial number of released prisoners will re-offend. Who are their victims likely to be? It is likely, given the disproportionate presence of AfricanAmerican men in the prison population, that any relaxation of sentencing or early release will disproportionately benefit African-American men. Indeed, the racial disparity in incarceration is widely acknowledged to be the primary motivation for sentencing reform on the Left, and perhaps in some corners of the Right as well. Those African-American men will then return to their communities, which are more likely to be predominantly African-American. It is therefore likely that the victims of those released early will also be disproportionately likely to be black. This is not surprising — people tend to live in communities predominantly comprised of members of their own racial or ethnic group. White ex-offenders are therefore likely to victimize other white people. But the drive for sentencing reform is motivated by concern over black offenders, and so it is worth noting that their future victims are also likely to be black. If we are going to play the disparate impact card, which is much of the impetus behind sentencing reform, we should note that the disparate impact works both ways. Yes, blacks are disproportionately likely to be incarcerated. But the lives not lost or damaged because of their incapacitation due to incarceration are also disproportionately likely to be black....
There is one other thing I would like to note. Everyone at least tacitly acknowledges that much of the political pressure behind this bill is animated by a sense of racial grievance — that African-American men are incarcerated at higher rates than their presence in the population. Yet one of the reasons why we have some of these stiff sentences is because when crime was rampant, African-Americans protested the violence visited upon their communities and asked the government to get tougher on crime. If we relax sentencing, there is a very good chance that crime will go up, it will disproportionately go up in African-American communities, and then some of the same people who are presently supporting sentencing leniency will be demanding harsher penalties because of the increasing crime in their communities; and, if recent history is a guide, they will claim the increase is due to racially discriminatory policies.
Wednesday, May 04, 2016
Extended commentary assails prosecutorial power enabled by federal mandatory minimums
Amos Irwin, who serves as Chief of Staff at the Criminal Justice Policy Foundation (CJPF), has this lengthy new Huffington Post commentary headlined "The Laws that Betrayed Their Makers: Why Mandatory Minimums Still Exist." Here are excerpts that highlight some of its main themes:
[R]ather than serving Congress’s purpose, federal mandatory minimum drug laws actually function as a prosecutor’s tool of interrogation. Since the same prosecutors who select the charges are also trying to extract information, they threaten defendants with wildly disproportionate mandatory minimums in order to force them to cooperate. They are open about this practice. The President of the National Association of Assistant U.S. Attorneys protested in July that if Congress reduces mandatory minimums, “prosecutors would lose a tool to extract information.”
They omit the fact that mandatory minimums are primarily useful for extracting information from the low-level offenders.... There are two problems with threatening long sentences to extract cooperation from low-level drug offenders. First, this strategy is ineffective in impacting the drug trade. Second, it inflicts immense collateral damage on innocent people and low-level offenders, while letting the guiltiest offenders off more easily — the opposite of what Congress intended...
Federal appeals courts have explicitly approved of prosecutors threatening defendants’ wives with charges that are rarely prosecuted, solely to force the defendants to cooperate. Federal appeals courts have explicitly approved of prosecutors threatening defendants’ wives with charges that are rarely prosecuted, solely to force the defendants to cooperate. Why would federal prosecutors threaten family members, knowing that they might have to follow through on those threats? Prosecutors see that the War on Drugs is not working, and many conclude that they need to fight the enemy more aggressively.
Monday, May 02, 2016
Reviewing the type of federal drug case that the SRCA should most impact
This lengthy new NBC news piece, headlined "As Drug Sentencing Debate Rages, 'Ridiculous' Sentences Persist," focuses on one notable federal drug defendant subject to a notable federal drug mandatory minimum that could be impacted by federal statutory sentencing reform. Here are excerpts:
When he was an addict and petty criminal, Leo Guthmiller knew little, and cared less, about the federal government's harsh drug sentencing laws. The worst he'd endured was 90 days at the county lockup in Lincoln, Nebraska.
Then, last April, nearly two years after he'd stopped popping painkillers and smoking methamphetamine, Guthmiller was arrested by two federal agents as he headed for a drug counseling session. He later learned why: a junkie and his girlfriend, facing stiff prison sentences, had told investigators that Guthmiller had introduced them to his meth dealer around the time he was getting sober. That made him the middleman in a street-level drug distribution scheme.
Because this was a federal case, and the amount of meth exceeded 500 grams, or 1.1 pounds, Guthmiller was suddenly facing at least 10 years behind bars as a co-conspirator.... The charge thrust him, unwittingly, into a raging debate over a pillar of America's war on drugs: mandatory-minimum sentences. Intended to sideline high-level traffickers, the laws have been used to sweep thousands of nonviolent, small-time offenders into epic prison terms....
Guthmiller didn't dispute the couple's accusation. But he bristled at the government's portrayal of him as a scheming operative. Besides, he was a changed man: sober, working, studying for his GED, leading AA meetings, completing a drug court program, newly married. Still, he pleaded guilty, unwilling to risk a trial that could end in an even longer prison term. "I'm not an innocent person, but at the same time this is all a bit much, I feel," Guthmiller told NBC News.
At his sentencing in mid-February, U.S. District Court Judge John Gerrard agreed. He praised Guthmiller's turnaround, but said federal drug statutes gave him no choice. He called the case "Exhibit A" on why Congress needed to pass The Sentencing Reform and Corrections Act, which would give judges more flexibility. "A 10-year mandatory minimum sentence in a case like this is absolutely ridiculous," Gerrard said from the bench. "And the only reason I am imposing the sentence that I am imposing today is because I have to."...
The judge's remarks caught the attention of the Washington, D.C., advocacy group Families Against Mandatory Minimums. As he prepared to spend the next decade behind bars, Guthmiller found himself cast as a case study in America's unforgiving drug laws. "The whole idea is these 10-year sentences were written by Congress to go after serious drug offenders, and they're being applied to a guy who is home and is going to drive himself to prison," said Kevin Ring, the group's vice president. "He obviously isn't this major criminal that everyone should be so scared of."
This is a key point in the drug-law reform effort, which has inspired an unlikely alliance among Democrats and Republicans, many of whom gathered at the White House last week to discuss their campaign. Mandatory minimum sentences, toughened during 1980s crime panics, established criteria under which judges had to impose lengthy prison terms for drug trafficking. The penalties depended on the type of drug, the amount of it, the offender's criminal history and the nature of the crime — including whether the offense involved violence, weapons or children. The new laws triggered an explosion in the U.S. prison population, contributing to a dramatic decline in crime rates but also costing taxpayers millions.
That cost-benefit balance has since tipped. Researchers now say that mass incarceration's impact on the crime rate has ebbed. Studies show that the likelihood of punishment, rather than the length of a prison sentence, is more likely to deter criminals. And there are now millions of nonviolent ex-offenders — a disproportionate number of whom are black — unable to contribute to the economy, including many who return to crime. Reformers argue that the money America spends on prisons would be better used for cops, schools and alternatives to jail, such as probation and drug courts.
In a 2011 report to Congress, the U.S. Sentencing Commission found that mandatory minimums focused too heavily on the amount of drugs and not enough on the offender's role in the trafficking operation. The commission has since loosened some of its guidelines retroactively, allowing thousands of nonviolent, low-level drug offenders to leave prison early. President Barack Obama joined the effort by granting clemency to many others.
Those moves are considered Band-Aids compared to the larger fix offered by the Sentencing Reform Act, legislation that would allow judges to impose shorter prison terms for bit players. But the bipartisan bill is bogged down by election-year politics. The Justice Department, meanwhile, has tried to change the system from within, ordering federal prosecutors to focus on high-level dealers. It appears to be working: the number of mandatory-minimum cases has dropped to 45 percent of all federal drug cases, down from 66.8 percent in 2007.
John Higgins, chief of the narcotics unit at the U.S. Attorney's Office in Nebraska, said in a statement that his prosecutors followed the Justice Department's advice, seeking mandatory minimums "only in those cases that warrant it." That included Guthmiller's, he said. He declined to go into detail, but pointed to court hearings in which prosecutors alleged that Guthmiller's 2013 matchmaking between the dealer and the couple led to the sale of 15-pounds of meth. "Methamphetamine is the number one drug threat in Nebraska," Higgins said.
Thursday, April 28, 2016
Senator Jeff Sessions (and thus Donald Trump?) comes out swinging against revised SRCA
Alabama'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:
"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:
- Politico reporting that (minor?) changes are being made to Senate's SRCA bill to appease GOP critics
- Mark Holden, GC at Koch Industries, makes "The Factual Case for Criminal Justice Reform"
- Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."
- Is the Supreme Court fight already starting to "doom" federal statutory sentencing reform?
- Notable new comments and commitments on criminal justice reform from GOP House Speaker Paul Ryan
- Quick (inside-the-Beltway) reflections on the latest odds of those inside-the-Beltway getting federal sentencing reform done in 2016
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.”
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.
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.
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.”
Wednesday, March 23, 2016
Notable new comments and commitments on criminal justice reform from GOP House Speaker Paul Ryan
This 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."
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.
Tuesday, March 08, 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:
- Politico reporting that (minor?) changes are being made to Senate's SRCA bill to appease GOP critics
- Mark Holden, GC at Koch Industries, makes "The Factual Case for Criminal Justice Reform"
- Is the Supreme Court fight already starting to "doom" federal statutory sentencing reform?
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 (10)
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.
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.
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:
- Basic elements of Sentencing Reform and Corrections Act of 2015
- Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015
- Senate Judiciary Committee moving forward next week on Sentencing Reform and Corrections Act of 2015
- Submitted testimony from witnesses at SRCA 2015 hearing (and member statements) now available
- SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5
- US Sentencing Commission provides estimates on likely impact of sentencing reforms in SRCA 2015
- Former AG Michael Mukasey and other former DOJ leaders urge Senate to move forward with vote on sentencing and corrections reform
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.
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.
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
As 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)