Wednesday, September 20, 2017

It's Alive!!: Senators Grassley and Durbin talking about reintroducing federal Sentencing Reform and Corrections Act

Ae5cc-aliveRoughly two years ago, when Senate Judiciary Committee Chair Charles Grassley secured a 15-5 vote in committee to move forward the bipartisan Sentencing Reform and Corrections Act of 2015 (remember that?), I was for a brief period optimistic about the possibility of significant reform to the federal sentencing system.  Regular readers may recall my skepticism about the prospect of major statutory sentencing reform back in summer 2013 when some were eager to believe, in the words one commentator, that "momentum for sentencing reform could be unstoppable."  But once Senators Grassley got on board and shepherded the SRCA though the Senate Judiciary Committee, I really started to think big reform really could happen.  But, of course, a host of predictable and unpredictable forces stopped significant federal statutory sentencing from ever becoming an Obama era reality.

I provide this backstory because it should temper any significant excitement from this new news release from Senator Grassley headlined "Senators to Reintroduce Landmark Criminal Justice Reform Package."  Here are the basics (with my emphasis added):

The bipartisan authors of the Sentencing Reform and Corrections Act are preparing to reintroduce their comprehensive legislation to review prison sentences for certain nonviolent drug offenders, reduce recidivism, and save taxpayer dollars.  The legislation, led by Senate Judiciary Committee Chairman Chuck Grassley and Senate Democratic Whip Dick Durbin, improves judicial discretion at sentencing for low level offenders and helps inmates successfully reenter society, while tightening penalties for violent criminals and preserving key prosecutorial tools for law enforcement.  The senators plan to reintroduce the bill as they continue to work with stakeholders to make additional updates.

“Last Congress, we worked in a bipartisan manner to develop a proposal that empowers judges, saves taxpayer dollars and gives low-level, non-violent offenders another shot at rejoining the productive side of society. Since that time, we’ve been meeting with colleagues and stakeholders to improve the bill and grow support.  While the political landscape in Washington has changed, the same problems presented by the current sentencing regime remain, and we will continue to work with colleagues in Congress and the administration, as well as advocates and members of the law enforcement community, to find a comprehensive solution to ensure justice for both the victims and the accused, and support law enforcement in their mission to keep our communities safe,” Grassley said.

“This legislation is the product of more than five years of work on criminal justice reform,” said Durbin. “It’s also the best chance in a generation to right the wrongs of a badly broken system.  The United States incarcerates more of its citizens than any other country on earth.  Mandatory minimum sentences were once seen as a strong deterrent. In reality they have too often been unfair, fiscally irresponsible and a threat to public safety. Given tight budgets and overcrowded prison cells, our country must reform these outdated and ineffective laws that have cost American taxpayers billions of dollars. We believe this legislation would pass the Senate with a strong bipartisan vote — it’s time to get this done.

The fact that a new version of the SRCA has not yet been introduced, and that Senator Grassley is talking about working with stakeholders to improve the bill in light of the changed political landscape, has me thinking that some interesting moves my be afoot in an effort to get this bill finally to a floor vote. I think Senator Durbin is quite right that a thoughtful federal statutory sentencing reform bill will get a strong bipartisan vote if it gets to the floor. The big question is whether a new version of the SCRA can get to the Senator floor anytime soon.

September 20, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Tuesday, August 29, 2017

Third Circuit panel rejects various challenges to severe stash-house sting sentence

A helpful reader made sure that I did not miss yesterday's dynamic discussion by a Third Circuit panel of a set of defense challenges to yet another severe sentence resulting from a stash-house sting.  The start of the majority opinion in US v. Washington, No. 16-2795 (3d Cir. Aug. 28, 2017) (available here), highlights why these cases are so notable:

Defendant-appellant Askia Washington was ensnared by a “stash house reverse sting” operation — one which hit many of the by-now-familiar beats.  Acting on what appeared to be insider information from a drug courier, Washington and his three co-conspirators planned to rob a Philadelphia property where they thought 10 kilograms of cocaine were being stored for distribution.  But as they discovered on the day of the robbery, the “stash house” was a trap set by law enforcement.  Their “courier” was an undercover federal agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), which had developed the scenario from the ground up.  The cocaine did not exist.

Under federal law on conspiracy and attempt, the government could, and did, prosecute the crew as if fantasy had been reality.  Washington, the sole member to take his chances at trial, was convicted by a jury of two Hobbs Act robbery charges and two drug charges (18 U.S.C. § 1951(a) and 21 U.S.C. § 846), although he was acquitted on a gun charge.

Developed by the ATF in the 1980s to combat a rise in professional robbery crews targeting stash houses, reverse sting operations have grown increasingly controversial over the years, even as they have grown safer and more refined.  For one, they empower law enforcement to craft offenses out of whole cloth, often corresponding to statutory offense thresholds.  Here, the entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Washington, contributing to a total sentence of 264 months in prison — far more than even the ringleader of the conspiracy received.  For another, and as Washington claimed on multiple occasions before the District Court — and now again on appeal — people of color are allegedly swept up in the stings in disproportionate numbers.

These elements of controversy are bound up in the three claims Washington now raises on appeal.  Two are constitutional claims: Washington challenges his conviction and sentence by arguing that the use of the statutory mandatory minimum term violated his rights to due process, and he also alleges that the attorney who represented him at trial rendered constitutionally ineffective assistance.  While stash-house reverse stings can raise constitutional concerns, the use of a mandatory minimum sentence on these particular facts did not deprive Washington of his right to due process.  And while this is the rare case where a claim of ineffective assistance of counsel was properly raised on direct appeal instead of through a collateral attack, Washington has not shown prejudice sufficient to call into doubt the integrity of his trial.  We thus conclude that both constitutional claims are without merit.

A lengthy and nuanced discussion by the majority follows, and largely concludes that the stash-house sting in this case was, in essence, "good enough for government work."  Judge McKee penned a lengthy partial dissent focused on sentencing issues that has a conclusion including these paragraphs:

This case is the latest illustration of why federal courts across the country continue to find the government’s reliance on phony stash-house sting operations disturbing.  As I have explained, these cases raise serious issues of fairness while destroying the fundamental relationship between culpability and punishment that is so important to sentencing.  The conduct being sanctioned is the direct result of the government’s initiative rather than the defendant’s.

I reiterate that it is exceedingly difficult to conclude that Congress ever considered that mandatory minimum sentences would apply here.  Nevertheless, it just may be that the ultimate systematic resolution of this very troublesome approach to sentencing will have to await clarification by Congress, the Sentencing Commission,or the U.S. Supreme Court.  Meanwhile, it is worth echoing my colleagues’ caution: The Government’s success today should not be interpreted as a clue that “all such prosecutions will share the same fate” in the future.

August 29, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, August 16, 2017

ABA delegates pass resolution against mandatory minimums and defer vote on resolution against new Sessions charging memo

Aba-logo-defending-liberty-pursuing-justiceAs reported in this ABA Journal report, the "ABA House of Delegates on Tuesday approved a late-offered resolution backing a ban on mandatory minimum sentences, while sponsors withdrew another late sentencing resolution after hearing from the U.S. Justice Department." Here are more details:

Delegates approved Resolution 10B, which opposes the imposition of mandatory minimum sentences in any criminal case.  The resolution calls on Congress and state legislatures to repeal laws requiring mandatory minimums and to refrain from adopting such laws in the future....

“Sentencing by mandatory minimums is the antithesis of rational sentencing policy,” the report says.  Basic fairness and due process require sentences to be the same among similarly situated offenders and proportional to the crime, the report says.

Though the ABA is on record for opposing mandatory minimums, the resolution “is timely and it is indeed urgent” because Congress is considering a number of bills that would impose new mandatory minimums, according to Kevin Curtin of the Massachusetts Bar Association.  Curtin told the House that mandatory minimums have produced troubling race-based inequities.  Blacks are more likely than whites to be charged with crimes carrying mandatory minimum sentences, and they are more likely to be sentenced to a mandatory minimum term, he said.

The withdrawn proposal, Resolution 10A, would have urged the Department of Justice to rescind a policy adopted in May by Attorney General Jeff Sessions.  The Sessions policy directs federal prosecutors to charge and pursue the most serious, readily provable offense, unless they get approval of superiors to deviate from the policy.  The ABA resolution urges that the department reinstate policies permitting federal prosecutors to make individualized assessments in each case....

Neal Sonnett, representing the ABA Criminal Justice Section, explained why the proposal was withdrawn.  The Justice Department has a designated seat within the section, but it did not voice an objection until Monday afternoon, he said.  The department indicated it believed there were errors in the section report and it wanted to continue discussions, Sonnett said.  The section withdrew the resolution to allow for those discussions and intends to bring it back to the House at the ABA Midyear Meeting in February.

A report to the House of Delegates said Sessions’ decision will lead to increased use of mandatory minimums for low-level and nonviolent drug offenders and a rise in incarceration.  “The draconian charging and sentencing policies urged by Sessions are a throwback to the policies of limited prosecutorial discretion and increased mandatory minimum sentences — policies that did not work — and are in stark contrast to the progressive trend in policies over the last 10 years,” the report says.

The ABA website provides information about the withdrawn Resolution 10A as well as the adopted Resolution 10B.

August 16, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Friday, August 04, 2017

Split DC Circuit finds unconstitutionally excessive 30-year mandatory minimum sentences for Blackwater contractors who killed Iraqis

A huge new DC Circuit opinion released today in a high-profile criminal case include a significant Eighth Amendment ruling.  The full 100+-page opinion in US v. Slatten, No. 15-3078 (DC Cir. Aug. 4, 2017) (available here), gets started this way:

Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard (“defendants”) were contractors with Blackwater Worldwide Security ("Blackwater"), which in 2007 was providing security services to the United States State Department in Iraq. As a result of Baghdad shootings that injured or killed at least 31 Iraqi civilians, Slough, Liberty and Heard were convicted by a jury of voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence (or aiding-and-abetting the commission of those crimes); Slatten was convicted of first-degree murder. They now challenge their convictions on jurisdictional, procedural and several substantive grounds....

The Court concludes ...that the district court abused its discretion in denying Slatten’s motion to sever his trial from that of his co-defendants and therefore vacates his conviction and remands for a new trial. Moreover, the Court concludes that imposition of the mandatory thirty-year minimum under 18 U.S.C. § 924(c), as applied here, violates the Eighth Amendment prohibition against cruel and unusual punishment, a holding from which Judge Rogers dissents. The Court therefore remands for the resentencing of Slough, Liberty and Heard.

The majority's Eighth Amendment analysis is really interesting, running more than 30 pages and covering lots of ground. And it wraps up this way:

The sentences are cruel in that they impose a 30-year sentence based on the fact that private security contractors in a war zone were armed with government-issued automatic rifles and explosives. They are unusual because they apply Section 924(c) in a manner it has never been applied before to a situation which Congress never contemplated. We again emphasize these defendants can and should be held accountable for the death and destruction they unleashed on the innocent Iraqi civilians who were harmed by their actions. But instead of using the sledgehammer of a mandatory 30-year sentence, the sentencing court should instead use more nuanced tools to impose sentences proportionally tailored to the culpability of each defendant.

Judge Rogers' dissent from this conclusion is also really interesting, and it concludes this way:

Although it is possible to imagine circumstances in which a thirty-year minimum sentence for a private security guard working in a war zone would approach the outer bounds of constitutionality under the Eighth Amendment, this is not that case.  The jury rejected these defendants’ claim that they fired in self-defense, and far more of their fellow security guards chose not to fire their weapons at all that day.  Yet as my colleagues apparently see it, Congress should have included an exception for all such military contractor employees, or, rather, it would have included such an exception if it had only considered the issue.  See Op. 72–74.  Perhaps so, but that is not the question before us. The district court judge made an individualized assessment of an appropriate sentencing package for each of these defendants, and the result is not disproportionate to the defendants’ crimes, let alone grossly, unconstitutionally disproportionate.

I think it possible (but not at all certain) that the feds will seek cert review of this Eighth Amendment decision, and I think it also possible (but not at all certain) that SCOTUS might be interested in this issue in this setting.

August 4, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Thursday, July 27, 2017

Helpful summary of USSC's recent overview of mandatory minimums in federal system

As reported in this prior post, the US Sentencing Commission earlier this month released a lengthy new publication titled "An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System" reviewing the use of federal mandatory minimum penalties and their impact on the federal prison population. Now the USSC has released this two-page publication with the big report's highlights. Here are highlights of these highlights:

July 27, 2017 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes | Permalink | Comments (1)

Wednesday, July 26, 2017

Jared Kushner still finding time to work on sentencing reform with members of Congress

This lengthy new Wall Street Journal article, headlined "Kushner’s Interest in Drug-Sentencing Limits Is at Odds With Attorney General: Jared Kushner has discussed criminal justice changes with lawmakers who backed a 2016 measure that then-senator Jeff Sessions opposed," reports on the continued efforts of President Trump's son-in-law to keep federal statutory sentencing reform afloat. Here are excerpts:

President Trump’s son-in-law and senior adviser, Jared Kushner, and some Republican lawmakers are discussing potential changes to the criminal justice system, including to mandatory minimum sentencing, that could conflict with Attorney General Jeff Sessions ’ tough-on-crime agenda.

Mr. Kushner met this month with House Judiciary Chairman Bob Goodlatte (R., Va.), continuing a dialogue with lawmakers that began in March with Senate Judiciary Chairman Chuck Grassley (R., Iowa) and Sens. Dick Durbin (D., Ill.) and Mike Lee (R., Utah). Mr. Kushner also has huddled with leaders of organizations involved in criminal justice.

“He’s quietly listening to all sides, including outside groups, to understand what’s possible and to ultimately be able to make a recommendation to the president,” said a White House official familiar with the meetings. “It’s a personal issue to him given his father spent time in prison. He got to know the families and got to see what’s wrong with the federal prison system.” Mr. Kushner’s father, Charles Kushner, a real-estate executive, was sentenced in 2005 to two years in prison after pleading guilty to tax evasion.

Mr. Kushner’s discussions have included a range of issues, including curbing long mandatory-minimum sentences for nonviolent drug offenders. In contrast, Mr. Sessions is promoting mandatory minimums as a pivotal crime-fighting tool that helps prosecutors get cooperation from suspects and keeps dangerous offenders behind bars. Mr. Kushner has met with Mr. Sessions and is trying to find common ground, according to the White House official.

However, Mr. Sessions appears to have lost favor with the president for recusing himself from a probe into Russian interference in the 2016 election. Mr. Trump has taken to berating Mr. Sessions publicly, on Tuesday saying on Twitter Mr. Sessions “has taken a VERY weak position on Hillary Clinton crimes,” referring to the Federal Bureau of Investigation look into her email practices. On Monday, Mr. Trump referred to Mr. Sessions as “our beleaguered A.G.”

“Everyone does see it as a challenge that some people in the White House and Congress want to do criminal justice reform but are at odds with actions the attorney general is taking,” said Greg Mitchell, a federal lobbyist who has worked on criminal-justice issues for years, representing groups that favor shorter sentences....

Mr. Grassley, in a recent speech outlining his agenda at the American Enterprise Institute, a conservative think tank, said he is awaiting input from the White House before reviving the sentencing bill. Supporters cast it as a bipartisan initiative that demonstrates the growing consensus around reducing the prison population. “It is consistent to be both tough on crime and still support sentencing reform,” Mr. Grassley said at AEI. “Passing a sentencing bill remains a top legislative priority for me as chairman.”

Advocates of less-punitive drug-sentencing laws view Mr. Kushner as their chief ally in the White House. However, Mr. Kushner’s responsibilities are broad, from Middle East politics to overhauling the federal bureaucracy. He has also been drawn into the Russia probes. As with climate change and other issues, criminal justice divides the White House into opposing camps. Mr. Trump ran on a law-and-order platform, and Mr. Sessions has largely executed that agenda.

“We have a chance of getting the support of this administration,” Mr. Grassley said in his AEI speech. “You look at some people appointed by this president, you might believe otherwise, but I have reason to believe it’s possible. I know there is both support and opposition within this White House.”

In a sign of the sensitivities surrounding drug sentencing, two newly-filed criminal-justice bills steer clear of the issue. Rep. Doug Collins (R., Ga.) introduced a bill Monday that would require federal prisons to assess inmates’ needs and offer rehabilitation programs. Co-sponsored by Mr. Goodlatte, the bill requests $250 million over the next five years to pay for prison education programs. “As a compassionate conservative, I know that people who are doing time will at some point re-enter the community,” Mr. Collins said.

Congress is unlikely to focus on criminal justice before the fall, lobbyists and staffers say. It’s unclear whether Senate Majority Leader Mitch McConnell (R., Ky.), who declined to bring the 2016 sentencing bill to a vote, would embrace a similar bill this time around.

July 26, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Thursday, July 13, 2017

Still more from AG Sessions on crime and punishment... and some critical commentary thereon

This recent post reprinted some excerpts of a speech by Attorney General Sessions at the 30th DARE Training Conference, and AG Sessions hit some similar points in this subsequent speech yesterday in Las Vegas to law enforcement personnel. This Vegas speech gave special attention to immigration enforcement and "sanctuary cities," and here are excerpts from the start of the speech that help highlight how AG Sessions view a tough approach to law enforcement as central to everything that government seeks to achieve: 

Since the early 1990s, the crime rate has steadily come down across the country — that is, until two years ago. Now, violent crime is once again on the rise in many parts of America.  The murder rate, for example, has surged 10 percent nationwide in just one year — the largest increase since 1968.

These numbers are shocking, and they are informative, but the numbers are not what is most important. What’s most important are the people behind the numbers.  Each one of the victims of these crimes had a family, friends, and neighbors. They’re all suffering, too....

We cannot accept this status quo, and this Department of Justice will not accept it.  Every American has the right to be safe in their homes and in their neighborhoods.

The first and most important job of this government — and any government — is to protect the safety and the rights of its people.  If we fail at this task, then every other government initiative ceases to be important.

As law enforcement officials, we have the responsibility to stop — and reverse — the surge in violent crime and opioids that has taken place over the last two years.  And under President Trump’s leadership, this Department of Justice will answer the call and do its part.

To that end, I have directed our federal prosecutors to work closely with our law enforcement partners at the federal, state, local, and tribal levels to combat violent crime and take violent criminals off our streets.

As we all know, the vast majority of people just want to obey the law and live their lives.  A disproportionate amount of crime is committed by a small group of criminals.  And the more of them we apprehend, prosecute, and convict, the more crime we can deter.

Meanwhile, as AG Sessions has been this week expounding his vision for federal criminal enforcement, some commentators concerned about his vision have been explaining their concerns.  Here are two recent pieces with critical commentary on what AG Sessions is up to:

July 13, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, July 11, 2017

US Sentencing Commission releases new overview of mandatory minimums in federal system

As reported in this official press release, the "United States Sentencing Commission today released a new publication — An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017 Overview) — that examines the use of federal mandatory minimum penalties and the impact of those penalties on the federal prison population." Here is more from the press release about this new publication and its findings:

The new publication updates much of the data contained in its 2011 Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System and compiles data through 2016, the most recent full fiscal year for which federal sentencing data is available.

Judge William H. Pryor, Jr., Acting Chair of the Commission stated, "This publication examines the latest data about the use of mandatory minimum sentences in the federal criminal justice system.  When Congress created the Commission, Congress empowered it to serve 'as a clearinghouse and information center' about federal sentencing and to assist Congress, the federal courts, and federal departments in the development of sound sentencing policies.  See 28 U.S.C. § 995(a)(12)(A). The Commission has published this report to fulfill that Congressional mandate."

Among the key data findings in the publication are:

  • The average sentence length for federal offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016 was 110 months of prison, nearly four times the average sentence (28 months) for offenders whose offense did not carry a mandatory minimum.

  • Slightly more than half (55.7%) of federal inmates in custody as of September 30, 2016 were convicted of an offense carrying a mandatory minimum.

  • Over one-third (38.7%) of federal offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016 received relief from the mandatory minimum at sentencing, which is a decrease from 46.7 percent in fiscal year 2010.

  • Hispanic offenders continued to represent the largest group of federal offenders (40.4%) convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016.

  • White offenders had the longest average sentence (127 months) among federal offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016, which is a shift from fiscal year 2010 when Black offenders convicted of an offense carrying a mandatory minimum penalty had the longest average sentence (127 months).

  • While Black offenders convicted of an offense carrying a mandatory minimum penalty continued to receive relief from the mandatory minimum penalty least often, the gap between Black offenders and White offenders has narrowed from a difference of 11.6 percent in fiscal year 2010 to 3.2 percent in fiscal year 2016.

The 2017 Overview is part of a multi-year study included in the Commission’s policy priorities over the past several amendment cycles and is intended to be the first in a series of reports on mandatory minimum penalties.  Continuation of the study is listed as a tentative policy priority for the amendment year ending May 1, 2018.  The Commission will accept public comment on proposed priorities through July 31, 2017.

The full USSC report, which runs 89 pages, is available at this link. I hope to find some time in the coming weeks to highlights some additional data from this latest review of the latest mandatory minimum realities.

July 11, 2017 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes | Permalink | Comments (2)

Latest comments by AG Sessions on drug problems and federal prosecutorial policies

Attorney General Jeff Sessions spoke today at the 30th DARE Training Conference, and the setting not surprisingly prompted him to talk about drug issues and federal prosecutorial policies. His official remarks are available at this link, and here are excerpts:

Drug abuse has become an epidemic in this country today, taking an unprecedented number of American lives.  For Americans under the age of 50, drug overdoses are now the leading cause of death. In 2015, more than 52,000 Americans lost their lives to drug overdoses — 1,000 every week.  More died of drug overdoses in 2015 than died from car crashes or died at the height of the AIDS epidemic.

And the numbers we have for 2016 show another increase — a big increase. Based on preliminary data, nearly 60,000 Americans lost their lives to drug overdoses last year.  That will be the highest drug death toll and the fastest increase in the death toll in American history.  And every day, more than 5,000 Americans abuse painkillers for the first time.

This epidemic is only growing.  It’s only getting worse.  It’s being driven primarily by opioids — prescription drugs, heroin, and synthetic drugs like fentanyl.  Last year, there were 1.3 million hospital visits in the United States because of these drugs.  According to the Centers for Disease Control and Prevention, heroin use has doubled in the last decade among young people 18 to 25....

Now, this is not this country’s first drug abuse crisis.  In the 1980s, when I was a federal prosecutor, we confronted skyrocketing drug abuse rates across the country and we were successful.  In 1980, half of our high school seniors admitted they had used an illegal drug sometime in that year.  But through enforcing our laws and by developing effective prevention strategies, we steadily brought those rates down.

We were in the beginning of this fight, in 1983, when DARE was founded in Los Angeles.  I believe that DARE was instrumental to our success by educating children on the dangers of drug use.  I firmly believe that you have saved lives. And I want to say thank you for that.  Whenever I ask adults around age 30 about prevention, they always mention the DARE program.  Your efforts work.  Lives and futures are saved.

Now, some people today say that the solution to the problem of drug abuse is to be more accepting of the problem of drug abuse.  They say marijuana use can prevent addiction.  They say the answer is only treatment.  They say don’t talk about enforcement.  To me, that just doesn’t make any sense.  In fact, I would argue that one reason that we are in such a crisis right now is that we have subscribed to this mistaken idea that drug abuse is no big deal.

Ignoring the problem — or the seriousness of the problem — won’t make it go away.  Prevention — through educating people about the danger of drugs — is ultimately how we’re going to end the drug epidemic for the long term. Treatment is important, but treatment often comes too late.  By then, people have already suffered from the effects of drugs.  Then their struggle to overcome addiction can be a long process — and it can fail.  I have seen families spend all their savings and retirement money on treatment programs for their children — just to see these programs fail.

Now, law enforcement is prevention.  And at the Department of Justice, we are working keep drugs out of our country to reduce availability, to drive up its price, and to reduce its purity and addictiveness.  We know drug trafficking is an inherently violent business.  If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court.  You collect it by the barrel of a gun.  There is no doubt that violence tends to rise with increased drug dealing.

Under the previous administration, the Department of Justice told federal prosecutors not to include in charging documents the full amount of drugs being dealt when the actual amount would trigger a mandatory minimum sentence.  Prosecutors were required to leave out true facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb “mass incarceration” of “low-level offenders”, but in reality it covered offenders apprehended with large quantities of dangerous drugs.

What was the result?  It was exactly what you would think: sentences went down and crime went up.  Sentences for federal drug crimes dropped by 18 percent from 2009 to 2016.  Violent crime — which had been decreasing for two decades — suddenly went up again.  Two years after this policy change, the United States suffered the largest single-year increase in the overall violent crime rate since 1991.

In May, after study and discussion with criminal justice experts, I issued a memorandum to all federal prosecutors regarding charging and sentencing policy that said we were going to trust our prosecutors again and allow them to honestly charge offenses as Congress intended.  This simple two-page guidance instructs prosecutors to apply the laws on the books to the facts of the case, and allows them to exercise discretion where a strict application of the law would result in an injustice.  Instead of barring prosecutors from faithfully enforcing the law, this policy empowers trusted professionals to apply the law fairly and exercise discretion when appropriate.  That is the way good law enforcement has always worked.

But you know it’s not our privileged communities that suffer the most from crime and violence.  Minority communities are disproportionately impacted by violent drug trafficking and addiction.  Poor neighborhoods are too often ignored in these conversations.

Regardless of their level of wealth or their race, every American has the right to live in a safe neighborhood.  Those of us who are responsible for promoting public safety cannot sit back while any American community is ravaged by crime and violence at the hands of drug traffickers.  We can never yield sovereignty over a single neighborhood, city block, or street corner to drug traffickers....

Experience has shown, sadly, that it is not enough that dangerous drugs are illegal.  We also have to make them unacceptable.  We have to create a cultural climate that is hostile to drug abuse. In recent years, government officials were sending mixed messages about drugs.  We need to send a clear message.  We must have Drug Abuse Resistance Education.  DARE is the best remembered anti-drug program. I am proud of your work.  It has played a key role in saving thousands of lives and futures.

So please — continue to let your voices be heard.  I promise you that I will let my voice be heard.  Our young people must understand that drugs are dangerous; that drugs will destroy their lives, or worse yet, end them.  Let’s get the truth out there and prevent new addictions and new tragedies — and make all of our communities safer.  Thank you.

July 11, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, June 23, 2017

Senate Judiciary Chair Grassley still talking up the prospects for federal statutory sentencing reform

This notable article from the Washington Free Beacon reports on some notable remarks by a critical member of Congress concerning federal sentencing reform.  The article is headlined "Sen. Grassley: Criminal Justice Reform Still on the Table," and here are excerpts:

Sen. Chuck Grassley (R., Iowa) believes that his criminal justice reform agenda, unsuccessful under the Obama administration, still has bright prospects, in spite of the less reform-friendly administration of President Donald Trump. Grassley, chairman of the Senate Judiciary committee, spoke at the American Enterprise Institute on Thursday morning about the Sentencing Reform and Corrections Act (SRCA), a bipartisan bill he first brought up in the last Congress....

"Long prison sentences always come with a cost. A cost to the taxpayers, a cost to families, and to our communities," Grassley said. "In many ways, and in many cases, the severity of the crime justifies these costs. But as we're all aware, that isn't always the case. Hence, the movement for sentencing reform."

The SRCA is meant to address these concerns through a number of approaches, Grassley said. These include expanded "safety valves" for non-violent offenders; a reduction in mandatory minimums for some drug crimes; and a reduction in sentences for offenders who complete programs designed to reduce recidivation. Grassley suggested that while the SRCA had the support of the Obama administration, the Trump White House, which has promised to "make America safe again," may be less friendly to the legislation.

"Obviously, the dynamic is different with a new president," Grassley said, but added that he was nonetheless "confident" about the SRCA's prospects. "We're looking forward to input from the administration" on the SRCA, Grassley said. "We had the support of the Obama administration. I think we have a chance of getting the support of this administration."

"I know that there is both support and opposition within this White House," Grassley said. "I certainly believe that it is consistent to be tough on crime and still support sentencing reform."

"We've been working since November to see what avenues we can have to move this bill along, particularly working with the executive branch of government. I'm confident about its prospects," he said....

Grassley criticized Sessions's comments that the administration would go back to pre-Obama sentencing discretion. "I'm not going to condemn people for finding fault with what Attorney General Sessions did when he spoke about going back to the pre-Obama, pre-Holder sentencing prosecutorial discretion that he gave to his U.S. Attorneys, that it was the wrong way to go. I could even say that I think it was the wrong way to go," he said.

Sessions opposed Grassley's bill when he was in the Senate. According to the Brennan Center for Justice, Sessions "personally blocked" the 2015 SRCA; he also, along with several of his colleagues, authored one of a series of op-eds opposing the bill. Sessions wrote an opinion piece for the Washington Post in June in which he insisted more stringent sentencing was needed to curb surging violent crime. He also attacked those who claimed incarceration was driven largely by low-level, nonviolent drug offenders.

Grassley, however, said Sessions' priorities need not conflict with the SRCA. "There doesn't have to be anything incompatible with what he's doing, with what we're trying to do, because what we do is give people that have been sentenced unfairly, and they feel it, and their lawyers feel it, another bite at the apple, by going before a judge to plead their case, that their sentence ought to be shorter," Grassley said.

Helpfully, the American Enterprise Institute has this webpage with a video of the event at which Senator Grassley spoke, and he had a lot more to say than what is quoted above.

June 23, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

US Sentencing Commission releases its proposed priorities for 2017-18 amendment cycle

Download (1)Because of reduced membership and election transitions, as reported here, the US Sentencing Commission decided not to promulgate guideline amendments in the 2016-17 amendment cycle.  (For a variety of reasons, I think this was a wise decision even though, as noted in this post from December 2016, just before a number of Commissioners' terms expired, the USSC unanimously voted to publish some ambitious proposed amendments for 2017.)  The USSC still has a reduced membership — it is supposed to have seven members and right now has only four — but that has not prevented it from now releasing an ambitious set of proposed priorities for 2017-18 amendment cycle.  Nearly a dozen priorities appear in this new federal register notice, and here area few that especially caught my eye (with some added emphasis in a few spots): 

[T]he Commission has identified the following tentative priorities:

(1) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.

(2) Continuation of its multi-year study of offenses involving MDMA/Ecstasy, tetrahydrocannabinol (THC), synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone)....

(3) Continuation of its work with Congress and other interested parties to implement the recommendations set forth in the Commission’s 2016 report to Congress, titled Career Offender Sentencing Enhancements, including its recommendations to revise the career offender directive at 28 U.S.C. § 994(h) to focus on offenders who have committed at least one “crime of violence” and to adopt a uniform definition of “crime of violence” applicable to the guidelines and other recidivist statutory provisions.

(4) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c). The Commission also intends to release a series of publications updating the data in the 2011 report.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate, including possibly amending Chapter Four and Chapter Five to provide lower guideline ranges for “first offenders” generally and to increase the availability of alternatives to incarceration for such offenders at the lower levels of the Sentencing Table....

(9) Continuation of its study of alternatives to incarceration, including (A) issuing a publication regarding the development of alternative to incarceration programs in federal district courts, and (B) possibly amending the Sentencing Table in Chapter 5, Part A to consolidate Zones B and C, and other relevant provisions in the Guidelines Manual....

(11) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.

June 23, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, June 22, 2017

"Jeff Sessions wants a new war on drugs. It won't work."

The title of this post is the headline of this new Washington Post commentary authored by David Cole, who is the national legal director of the American Civil Liberties Union, and Marc Mauer, who is executive director of the Sentencing Project. Here are excerpts:

Attorney General Jeff Sessions is right to be concerned about recent increases in violent crime in some of our nation’s largest cities, as well as a tragic rise in drug overdoses nationwide [“Lax drug enforcement means more violence,” op-ed, June 18].  But there is little reason to believe that his response — reviving the failed “war on drugs” and imposing more mandatory minimums on nonviolent drug offenders — will do anything to solve the problem.  His prescription contravenes a growing bipartisan consensus that the war on drugs has not worked. And it would exacerbate mass incarceration, the most pressing civil rights problem of the day.

Sessions’s first mistake is to conflate correlation and causation. He argues that the rise in murder rates in 2015 was somehow related to his predecessor Eric Holder’s August 2013 directive scaling back federal prosecutions in lower-level drug cases.  That policy urged prosecutors to reserve the most serious charges for high-level offenses.  Holder directed them to avoid unnecessarily harsh mandatory minimum sentences for defendants whose conduct involved no actual or threatened violence, and who had no leadership role in criminal enterprises or gangs, no substantial ties to drug trafficking organizations and no significant criminal history....  Sessions offers no evidence that this policy caused the recent spikes in violent crime or drug overdoses. There are three reasons to doubt that there is any significant connection between the two.

First, federal prosecutors handle fewer than 10 percent of all criminal cases, so a modest change in their charging policy with respect to a subset of drug cases is unlikely to have a nationwide impact on crime.  The other 90 percent of criminal prosecution is conducted by state prosecutors, who were not affected by Holder’s policy.  Second, the few individuals who benefited from Holder’s policy by definition lacked a sustained history of crime or violence or any connections to major drug traffickers.  Third, the increases in violent crime that Sessions cites are not nationally uniform, which one would expect if they were attributable to federal policy.  In 2015, murder rates rose in Chicago, Cleveland and Baltimore, to be sure.  But they declined in Boston and El Paso, and stayed relatively steady in New York, Las Vegas, Detroit and Atlanta.  If federal drug policy were responsible for the changes, we would not see such dramatic variances from city to city.

Nor is there any evidence that increases in drug overdoses have anything to do with shorter sentences for a small subset of nonviolent drug offenders in federal courts.  Again, the vast majority of drug prosecutions are in state court under state law and are unaffected by the attorney general’s policies.  And the rise in drug overdoses is a direct result of the opioid and related heroin epidemics, which have been caused principally by increased access to prescription painkillers from doctors and pill mills.  That tragic development calls for treatment of addicts and closer regulation of doctors, not mandatory minimums imposed on street-level drug sellers, who are easily replaced in communities that have few lawful job opportunities.

Most disturbing, Sessions seems to have no concern for the fact that the United States leads the world in incarceration; that its prison population is disproportionately black, Hispanic and poor; or that incarceration inflicts deep and long-lasting costs on the very communities most vulnerable to crime in the first place.... Advocates as diverse as the Koch brothers and George Soros, the Center for American Progress and Americans for Tax Reform, the American Civil Liberties Union and Right on Crime agree that we need to scale back the harshness of our criminal justice system.

Rather than expanding the drug war, Sessions would be smarter to examine local conditions that influence crime and violence, including policing strategies, availability of guns, community engagement and concentrated poverty.  Responding to those underlying problems, and restoring trust through consent decrees that reduce police abuse, hold considerably more promise of producing public safety. Sessions’s revival of the failed policies of the past, by contrast, has little hope of reducing violent crime or drug overdoses. 

Prior recent related posts:

June 22, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, June 20, 2017

Fascinating new OIG report examines implementation of former AG Holder's "Smart on Crime" initiative

I just came across this fascinating new report from the US Justice Department's Office of the Inspector General. The title of the lengthy report itself spotlights why the report is both fascinating and timely: "Review of the Department’s Implementation of Prosecution and Sentencing Reform Principles under the Smart on Crime Initiative." The full report runs 70 dense pages and even the executive summary is too lengthy and detailed to reproduce fully here. But these excerpts should whet the appetite of all sentencing nerds:

In August 2013, the U.S. Department of Justice (Department) and then Attorney General Eric H. Holder, Jr., announced the Smart on Crime initiative, which highlighted five principles to reform the federal criminal justice system. Smart on Crime encouraged federal prosecutors to focus on the most serious cases that implicate clear, substantial federal interests. In the first principle, the Department required, for the first time, the development of district-specific prosecution guidelines for determining when federal prosecutions should be brought, with the intent of focusing resources on fewer but the most significant cases. The second principle of Smart on Crime announced a change in Department charging policies so that certain defendants who prosecutors determined had committed low-level, non-violent drug offenses, and who had no ties to large-scale organizations, gangs, or cartels, generally would not be charged with offenses that imposed a mandatory minimum prison sentence.

The Office of the Inspector General (OIG) initiated this review to evaluate the Department’s implementation of the first two principles of Smart on Crime, as well as the impact of those changes to federal charging policies and practices. We assessed the 94 U.S. Attorney’s Office districts’ implementation and the impact of the Smart on Crime policy on not charging drug quantities implicating mandatory minimum sentences in circumstances where the defendants were low-level, non-violent offenders with limited criminal histories. We also assessed the implementation and impact of the policy that required prosecutors to consider certain factors before filing a recidivist enhancement that would increase the sentence of a drug defendant with a felony record pursuant to 21 U.S.C. § 851.

On May 10, 2017, the Attorney General issued a new charging and sentencing policy to all federal prosecutors that effectively rescinds the specific charging policies and practices outlined by Smart on Crime. We did not review this new policy as part of this review, which examined the implementation of the prosecution and sentencing reform principles under the Smart on Crime initiative....

We found that the Department made progress implementing the first two Smart on Crime principles, but we also identified several shortcomings in its efforts, including some failures to update national and local policies and guidelines and a lack of communication with local law enforcement partners regarding changes to these polices and guidelines in some instances.

We found that, while the Department issued policy memoranda and guidance to reflect its Smart on Crime policies, the U.S. Attorneys’ Manual (USAM), a primary guidance document for federal prosecutors, was not revised until January 2017, more than 3 years after Smart on Crime was launched, even though Department officials established a deadline of the end of 2014 to do so. Further, we determined that 74 of 94 districts had developed or updated their local policies to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions. Of the remaining 20 districts, some provided incomplete information to the OIG as to whether they had updated their prosecution guidelines or policy memoranda to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions in drug cases; in others, the district policies provided appeared to be inconsistent with the Smart on Crime policies in whole or in part; and some told us that they relied on the Holder memoranda for direction but did not develop or update any of their district policies or guidance documents to reflect the Smart on Crime policy changes.

We also found that 70 of 94 districts had incorporated Smart on Crime recidivist enhancement policy changes into their districts’ prosecution guidelines or policy memoranda. However, of the remaining 24 districts, 20 provided information to the OIG with respect to recidivist enhancements that appeared to be inconsistent with the 2013 Holder memoranda in whole or in part, or reported to the OIG that they followed the Holder memorandum but did not specifically revise their district policies to reflect Smart on Crime policy changes. The four remaining districts provided information that did not reflect the Smart on Crime policy changes on filing recidivist enhancements. Finally, we found that 10 districts failed to update their policies to reflect Smart on Crime policy changes with regard to both mandatory minimum charging decisions and recidivist enhancements....

We further found that the Department’s ability to measure the impact of the first two Smart on Crime principles is limited because it does not consistently collect data on charging decisions. For example, while the Legal Information Office Network System (LIONS), the U.S. Attorneys’ Offices’ case management system, allows federal prosecutors generally to track information about their cases, data fields relevant to Smart on Crime were not always present or updated.

Due to these limitations, the Department has relied on U.S. Sentencing Commission (USSC) data to assess the impact of the first two Smart on Crime principles. However, using USSC data to measure the impact of Smart on Crime’s charging policies is challenging because the USSC collects data from courts on sentencing decisions by judges and does not receive data from prosecutors about their charging decisions. In that regard, the USSC data does not allow assessments regarding charges that prosecutors could have brought but chose not to bring.

Nevertheless, based on our own analysis of USSC sentencing data over the period from 2010 through 2015, we found that sentencing outcomes in drug cases had shifted in a manner that was consistent with the first two principles of Smart on Crime. This was reflected by significantly fewer mandatory minimum sentences being imposed in drug cases nationwide, as well as a decrease in mandatory minimum sentences for those defendants who might otherwise have received such a sentence in the absence of the 2013 Holder memoranda....

We also found that some regions in the country diverged from these overall national trends. For example, while drug convictions decreased nationally by 19 percent, the decrease was far larger in the Southwest Border region. Further, the West, Pacific Northwest, and Hawaii and Island Territories regions actually showed increases in the number of drug convictions. As a result, we determined that national trends should not be interpreted in such a way as to conclude that Smart on Crime had a uniform impact across all the nation’s districts.

June 20, 2017 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, June 16, 2017

Historic criminal justice reform signed into law in Louisiana, which has historically been highest incarcerating state

As reported in this local article, "bills signed into law Thursday morning by Gov. John Bel Edwards aim to change Louisiana's reputation as the most imprisoned state in the country." Here are some the sentencing details from the press article (though the folks should be sure to check out this summary of the full package of bills which covers an array of other issues including victim services and reentry concerns):

"With this ambitious package, Louisiana is projected to reduce the prison population by 10 percent and save $262 million over the next decade," according to the bills' package summary [available here]. "Seventy percent of these savings — an estimated $184 million — will be reinvested into programs and policies proven to reduce recidivism and support victims of crime."

The legislation signed into law includes:

Senate Bill 139 [which provides] alternatives to incarceration like drug rehabilitation. Expands probation eligibility to third-time nonviolent offenders, as well as first-time, lower-level violent offenders. It also gives opportunities for release. Consolidates eligibility for parole consideration for prisoners convicted of nonviolent, non-sex offenses at 25 percent of sentence served....

Senate Bill 220 [which alters sentencing rules to make sure law] focuses prison space on serious and violent offenders. It does this by removing less serious crimes to the violent crimes list and merging redundant theft and burglary offenses.

Senate Bill 221 [which addresses] repeat offenders by lowering the mandatory minimum sentence for second and third offenses.

Senate Bill 16 [which provides that] most people sentenced to life as juveniles receive an opportunity for parole consideration after serving a minimum of 25 years in prison.

June 16, 2017 in Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Thursday, June 08, 2017

More interesting new "Quick Facts" publications from the US Sentencing Commission

The US Sentencing Commission has released two notable new Quick Facts covering "Drug Trafficking Offenses" and "Federal Offenders in Prison" as of February 2017. (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.")  Here are a few of the many intriguing data details from these two small data-filled publications:

June 8, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, June 07, 2017

Four Senators write to AG Sessions with pointed questions about the Sessions Memo on charging and sentencing

As detailed in this press release from Senator Mike Lee, "Sens. Mike Lee (R-UT), Dick Durbin (D-IL), Cory Booker (D-NJ), and Rand Paul (R-KY) sent a letter to Attorney General Jeff Sessions Wednesday, seeking answers about the Department of Justice’s May 10, 2017 memorandum, directing federal prosecutors to pursue the most serious offense possible when prosecuting defendants."  The three-page letter is available at this link, and it starts this way:

We write concerning the Department of Justice's May 10, 2017 memorandum directing federal prosecutors to "pursue the most serious, readily provable offense." The Department's new policy ignores the growing bipartisan view that federal sentencing laws are in grave need of reform.  In many cases, the new policy will result in counterproductive sentences that do nothing to make the public safer. And it appears to force the hand of the prosecutors closest to each case to seek the highest possible offense rather than enable them to determine an appropriate lesser charge, which can help guard against imposing excessive sentences.

Among the six pointed questions (with sub-questions) that end the letter are these that strike me as especially interesting:

Pursuant to the Department's new policy, prosecutors are allowed to apply for approval to deviate from the general rule that they must pursue the most serious, readily provable offense.  The memo, however, does not explain how the Department will decide whether to grant approval to deviate from the general rule.  What factors will the Department consider in making these decisions? How often do you anticipate that prosecutors will request approval to deviate from the Department's charging policy? How often do you expect such requests will be granted?  Will Main Justice track how frequently attorneys seek departures from the new policy?

Are there any federal criminal offenses carrying mandatory minimum sentences that you believe are unfair?  Do you believe that all applications of 18 U.S.C. § 924(c) result in fair sentences?  If the answer to either of those questions is "no," why do you believe the Department's new policy allows enough discretion to individual prosecutors to result in fair outcomes in cases implicating these statutes?

 Prior recent related posts: 

June 7, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, June 06, 2017

Senators Grassley and Feinstein working on enhanced federal penalties for synthetic opioid offenses

This slightly confusing new NPR story, headlined "Lawmakers Consider Tough New Penalties For Opioid Crimes, Bucking Trend," suggests that the only kind of sentencing reform being now discussed in Congress involves increasing rather than decreasing drug offense sentences.  Here are the still opaque details as reported by NPR (with my emphasis added, for subsequent comment):

For nearly four years now, an unusual coalition of Republicans and Democrats has worked to reduce mandatory prison terms for many federal drug crimes.  But that bipartisan movement may be shallower than it appears. Indeed, Republican Sen. Chuck Grassley of Iowa and Democratic Sen. Dianne Feinstein of California, who both supported a cut-back on some drug punishments, are preparing a bill that would create tough new penalties for people caught with synthetic opioid drugs.  Grassley chairs the Senate Judiciary Committee, and Feinstein is the panel's ranking member.

A draft of the legislation reviewed by NPR suggests the plan would give the attorney general a lot more power to ban all kinds of synthetic drugs, since criminals often change the recipe to evade law enforcement.  It would impose a 10-year maximum sentence on people caught selling them as a first offense. That would double if they do it again.

Michael Collins of the Drug Policy Alliance, which advocates for lighter punishments for drug offenders, has seen language in the proposal. He said he thinks it's a bad idea. "These synthetic drugs are added to heroin often outside the U.S., but the bill takes such a broad approach that it's penalizing individuals who sell drugs at a low level inside the U.S., and so it's going to do nothing to deter and stop the supply of drugs," Collins said.

Collins said drug addiction is a public health challenge. He said sending more people to prison won't help, just as it didn't help in the crack cocaine era a few decades ago. "The problem is really we've been here before with this approach in terms of the war on drugs and ramping up sentences, and we know that escalating sentences ... does nothing to help the opioid epidemic," Collins said. "In fact, it only serves to increase the prison population."

Many people inside the Justice Department disagree. Just last week, federal prosecutors in Utah announced charges against a half-dozen people in suburban Salt Lake City.  Authorities say two of them quit their jobs at eBay to embark on a new enterprise. They allegedly ordered a version of the synthetic opioid fentanyl by mail from China, then pressed the drug into counterfeit pills and sold them online to customers across the country.

U.S. Attorney John Huber brought the case. "Like much of the country, we are not escaping the heroin and opioid epidemic and this latest version or brand of it with the fentanyl danger just makes it that much more pressing of a concern for us," Huber said.  The alleged ringleader — 27-year-old Aaron Michael Shamo — could spend the rest of his life in prison if he's convicted under the current drug laws.  "Mr. Shamo faces a mandatory life minimum sentence if he's convicted and that shows how serious this is, when you're dealing in such large quantities of such a dangerous substance," Huber said. "This is as serious as it gets."

As this NPR story already indirectly indicates, severe federal sentences are already on the books for serious drug dealers who traffic in fentanyl, and I am pretty sure a first offense of even a small amount of fentanyl dealing already carries a mandatory maximum sentence of decades. Thus, I think the highlighted line from the article here meant to report that Senators Grassley and Feinstein are working on a bill that would have a 10-year mandatory minimum sentence for even low-lever, first-time dealing of fentanyl.

I am not yet going to criticize a bill I have not yet seen, nor am I going to criticize the instinct of many legislators and law enforcement officials that drastic action needs to be taken in response to the still growing opioid epidemic.  But I am certainly prepared to express disappointment that leaders like Senators Grassley and Feinstein still apparently think that new mandatory minimum sentencing provisions serve as a wise and appropriate response to a national drug problem.

June 6, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Discouraging account of the state of federal criminal justice reform come summer 2017

On the heels of big talk in summer 2013 from then-Attorney General Eric Holder about criminal justice reforms, some pundits (as noted here) were quick to suggest that momentum for major federal sentencing reform might be unstoppable. Ever the political pessimist, I was then quite hopeful but still not all that optimistic that Congress would find a way to enact some sweeping federal statutory sentencing reforms before too long.

But fast forward four years to the coming summer 2017, and there no seems to be very little reason to be hopeful or optimistic about anything getting done in this space anytime soon. This new Marshall Project feature article by Justin George highlights that this is not only a story of a new Prez and Attorney General with different criminal justice priorities, but also a story of reform voices on the left and right coming to battle each other in ways that may ensure there in no path forward. The article is headlined "Can This Marriage Be Saved?: Left and right came together on criminal justice reform. Then Trump happened." Here are a few notable excerpts:

John Malcolm [is] a legal scholar at the Heritage Foundation, the influential conservative think tank [and] a member of an unlikely alliance that hopes to end America’s status as the world’s most prolific jailer: liberals who find the criminal justice system racist, inequitable, and inhumane are joining forces with conservatives — such as Malcolm — who find it wasteful, harmful to families, and heavy-handed. Last year, reformers on both sides agreed to support a proposed law that would relax mandatory minimum sentences, giving federal judges somewhat more discretion in sentencing and helping low-level offenders avoid prison time. It was a modest proposal, compared to the size of the problem, but the bill attracted a rare amount of bipartisan support in Washington.

Despite that support, however, the measure failed to pass Congress. Some Republicans wanted the law to include a provision on “mens rea” reform, which would expand the category of crimes in which a defendant’s criminal intent is a factor in determining guilt. Democrats, convinced that such a provision would make it harder for prosecutors to go after corporate crime, resisted. The bill stalled, then died—and so did some of the spirit of common cause. Last year, as the contentious presidential election neared its conclusion, the alliance started to come undone.

Liberal members of the coalition, such as Jesselyn McCurdy, a lobbyist for the American Civil Liberties Union, say that the reform bill failed because obstructionist Republicans didn’t want to give President Obama anything he could claim as a bipartisan achievement on the verge of the election. But, as Malcolm sees it, it was Democrats, confident that Hillary Clinton would be president and that the Republican grip on Congress would be loosened, who decided that they no longer needed to compromise. “People’s positions became hardened,” Malcolm said. Conservatives, he added, also bristled at the “anti-police” rhetoric of the Black Lives Matter movement and at the left’s emphasis on the racial disparities of the criminal justice system.... Groups from the right and left still meet regularly on criminal justice issues, including at a monthly work luncheon that Malcolm hosts, at the Heritage Foundation. But momentum has been hard to regain. “Hurt feelings are impacting meaningful discussion,” Malcolm said. “For the right, the criticism of the left is ‘Your messaging stinks, and you don’t make it easy to pass stuff, because you make this difficult for conservatives to sign on to,’ ” Kevin Ring, the president of Families Against Mandatory Minimums, said. “And, for the left, the criticism of the right was ‘You didn't try that hard.’ ”...

But [Senator Mike] Lee, who still believes that a reform bill can get through Congress, said he is not so sure Sessions will be an impediment. “Jeff Sessions is in a different role now — he’s no longer a lawmaker,” Lee said. “I’ve had conversations with people in the White House and elsewhere in the administration in which I’ve explained to them this could be a really good bipartisan win, a nice bipartisan moment, and I’ve been working with the administration to figure out what level of comfort they have with it and what we need to do in order to move forward.” (The Department of Justice said that Sessions was not available for comment, and the White House did not respond to requests to interview Kushner for this story.)...

But the only notable criminal justice measures showing signs of life in the House so far this year would only create more opportunities to put people in prison or to hand out longer sentences, such as a measure expanding the powers of federal probation officers to arrest anyone who interferes with their work. Given this inhospitable climate, Ring, of Families Against Mandatory Minimums, said that perhaps the best course for reformers is to hope for “benign neglect” from the Trump administration and to focus on repairing the damage done to the alliance by the “emotional fallout” of 2016. Maybe, he said, “this is time for us to put our head down and start winning hearts and minds.”

June 6, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Sunday, June 04, 2017

Federal District Judge Mark "Bennett says 80% of the mandatory sentences he hands down are unjust"

The quote in the title of this post's headline is just one of a number of notable lines from this extended CNN article headlined "The judge who says he's part of the gravest injustice in America." Here is some of the context and particulars from the article:

[U.S. District Court Judge Mark] Bennett seems exasperated, exhausted almost, as he explains he must sentence [Susan] Rice to a full five years -- the mandatory minimum required by law. It is a sentence he deems unjust, too much for a low-level addict, just for being caught with a certain weight of drugs.  

Bennett makes sure the record reflects he felt strongly enough to request that Iowa's US Attorney consider waiving the mandatory minimum. He accepts the defense mitigation that Rice had never been in trouble before she was in her 50s, when she began drinking heavily after a bad divorce and was introduced to meth. She met a mid-level dealer who offered her a mattress in his basement and free meth if she would drive him around. A willing drug mule to feed her addiction? Yes. But not the drug trafficker or conspirator whom the charges and mandatory minimum sentences were designed to target, the judge believed.

His plea fell on deaf ears.  He was told there was no option for Rice to be treated as an exception to the law. "I strongly disagree with that decision," the judge says firmly from the bench.  It is not the first time he has felt this way. Bennett says 80% of the mandatory sentences he hands down are unjust -- but that he is handcuffed by the law, which leaves no room for judicial discretion to consider a sentence based on individual circumstances of the defendant. 

Too often, Bennett says, low-level nonviolent drug addicts dealing to feed their habit end up being sentenced like drug kingpins.  Bennett says if he had the power, he would jail Rice for perhaps a year, or 18 months.  Across the street in a state courthouse, she would have been put on probation, he says.  "I think it's a miscarriage of justice," Bennett says. "But you know people are entitled to their own sense of what justice is."

Bennett hoped the tide was turning after members of both parties began pushing for sentencing reform on both state and federal levels, arguing it had been a huge mistake.  Now Jeff Sessions, Donald Trump's attorney general, has instructed that the law governing mandatory minimums be enforced with renewed vigor. "If you are a drug trafficker," Sessions said after issuing his memo to prosecutors, "we will not look the other way. We will not be willfully blind to your misconduct."

Bennett thinks this approach is unjust. "I basically couldn't live with myself if I didn't speak out," he says, standing in the center of his courtroom only hours after sentencing Rice. "I'm compelled to talk about it because I think it's one of the gravest injustices in the history of America."  Year after year, giving out those sentences, is wearing on him.  "The burden of having given so many unjust sentences is a very heavy thing for me to carry around," Bennett says beginning to choke up. "I do not consider myself soft on crime, but I consider myself opposed to mandatory minimums for low level non-violent drug dealers who are basically addicts," he says....

The National Association of Assistant US Attorneys, made up of those who prosecute federal cases, supports Sessions' push to charge the most serious crime that is provable.  "It's an effective way of protecting the public and it has served us well for an awful long time," the group's president Larry Leiser says.  "People who were eligible for mandatory minimums are truly people who are involved in significant quantities of these very dangerous substances."  He rejects recent efforts to relax sentencing laws.  And he rejects the view the law unfairly catches non-violent addicts who are simply feeding their addiction by selling drugs.  And he hails the provision that lets offenders help themselves to lower sentences if they in turn help the authorities take serious criminals off the streets.

June 4, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4)

Saturday, June 03, 2017

NPR covers debate over federal sentencing and mandatory minimums in three parts

This past week, National Public Radio ran a notable three-part series with conversations about modern federal sentencing realities on its Morning Edition program.  Here are the links, headings and brief descriptions of who what talking about what:

Mass Incarceration Is A Major U.S. Issue, Georgetown Law Professor Says

Rachel Martin talks to Georgetown University Law professor Paul Butler about the ongoing and new challenges facing the nation regarding the criminal justice system.

Former Prosecutor On Why He Supports Mandatory Minimums

Attorney General Sessions told federal prosecutors to seek the harshest penalties possible against defendants.  Former federal prosecutor Bill Otis tells Rachel Martin why he supports the guidelines.

A Federal Judge Says Mandatory Minimum Sentences Often Don't Fit The Crime

NPR's Rachel Martin speaks to federal Judge Mark Bennett of Iowa, who opposes mandatory minimum charging and sentencing guidelines for nonviolent drug offenses.

June 3, 2017 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, May 30, 2017

Notable new talk of notable new mandatory minimum sentences in Congress

The Hill has this notable new article headlined "GOP pushes new minimum sentencing laws."  Here are excerpts:

The debate over criminal justice reform has taken a head-spinning turn on Capitol Hill.  After months of debate over whether to curb mandatory minimum prison sentences, Republicans are now going in the opposite direction.

A new border security bill includes mandatory minimum sentences for certain immigrants who try to re-enter the country after they’ve already been deported and for people convicted of violent crimes against judges and police officers. The Hill reviewed a draft copy of the legislation, which is still being hammered out by Sen. John Cornyn (Texas), the No. 2 Senate Republican, and House Homeland Security Committee Chairman Michael McCaul (R-Texas).

The legislation includes “Kate’s law,” a measure named for Kathryn Steinle, a 32-year-old woman killed in 2015 by a felon who had been deported but returned to the United States. The law effectively creates a three-strike rule. Immigrants with prior aggravated felony convictions or two prior convictions for illegal re-entry would get a mandatory 5-year sentence.

President Trump repeatedly talked about Steinle during his presidential campaign as he backed policies cracking down on legal and illegal immigration.

The legislation also incorporates Cornyn’s Back the Blue Act, which creates a 30-year mandatory minimum sentence for killing a judge or federal law enforcement officer; a 10-year minimum for assault if the judge or law enforcement officer is seriously injured; a 20-year mandatory minimum if a deadly or dangerous weapon was used in the assault; and a 10-year minimum for fleeing after killing, attempting to kill or conspiring to kill a judge or law enforcement office. The law defines a law enforcement officer as any federally funded public safety officer or judicial officer for a public agency, including firefighters.

The new legislation represents a shift in the battle over mandatory minimum sentences and criminal justice reform more broadly. Over the last several years, momentum for eliminating mandatory sentencing laws gained steam with the backing not only of former President Barack Obama, but also from conservatives such as Sen. Mike Lee (R-Utah) and Charles and David Koch, the conservative GOP mega-donors and political heavyweights.

With the election of Trump, however, there are some signs that things are now moving in a different direction. Trump and Attorney General Jeff Sessions have vowed to empower law enforcement and crack down on illegal immigration....

Cornyn’s work on the new bill appears to represent another shift given his past work on the Sentencing Reform and Corrections Act. That legislation, which Sen. Dick Durbin (D-Ill.) spearheaded alongside Lee and Sen. Chuck Grassley (R-Iowa), called for reducing mandatory minimums for certain drug crimes. Cornyn was one of the first 15 original co-sponsors of that legislation, which never made it to the floor for a vote....

Cornyn said the new legislation is in draft form and still evolving. “We don’t have a final product,” he told The Hill on Thursday. “We’ve been sharing some language with the Department of Homeland Security and the House so there isn’t a final product. I know people like to comment on leaked draft documents, but I don’t find that very productive.”

When asked for his response to claims that provisions in his bill contradict his past support for reform, Cornyn said his bill is not a statement about mandatory minimums generally. “I’m not opposed to all mandatory minimums,” he said. “For example, felons carrying guns, I like the five-year mandatory minimum because it acts as a deterrent and saves lives.”...

Kevin Ring, president of Families Against Mandatory Minimums, said he understands Cornyn's reasoning for supporting minimums for certain crimes. “But just because you support some [mandatory minimums], doesn’t mean you should support the worst,” he said. “These are incredibly broad and expensive.”

Ring claims the provisions in Cornyn’s bill will cause more damage than any good Grassley's and Durbin’s reforms would have done in terms of reducing the prison population. “These are two of the biggest prison expanding proposals we’ve seen combined into one massive bill,” he said. “We can’t possibly build prisons fast enough to keep up with the influx we’d have.”

Without seeing the particulars of the new mandatory minimums (MMs) being developed by Senator Cornyn, I am not yet prepared to weigh in on just how much of an impact they could have on the federal prison population. I am hopeful that the US Sentencing Commission might have an opportunity to analyze the possible impact of any and all new MMs before they come up for a vote in any committees or before the full Congress.

If Senator Cornyn and other GOP members are strongly and aggressively committed to moving forward with new MMs for certain violent offenses and/or repeat immigration offenders, advocates of progressive reforms might be strategically wise to urge adding to any bill parallel provisions that reduce or eliminate MMs for certain nonviolent offenses and/or first-time offenders. Like many advocates of federal sentencing reform, I generally think all forms of mandatory minimums generally do more harm than good. But lengthy mandatory minimums for nonviolent and first offenders seem to me to be especially pernicious, and thus I would urge those troubled by the lemons of new proposed MMs try to find a way to make some sentencing reform lemonade.

May 30, 2017 in Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (5)

Sunday, May 21, 2017

Reactions to Sessions Memo on DOJ charging/sentencing policies keep on coming

I highlighted in this post and this post some of the early reactions to the new charging and sentencing memorandum released earlier this month by Attorney General Jeff Sessions (basics here). Reactions in various forms and formats just keep on coming, so here I will highlight a few more from various authors and outlets that struck me as worth noting:

From CNN here, "State AGs to Sessions: Rescind criminal charging guidance"

From Crime & Consequences here, "Restoration of Honesty: Jeff Sessions' Charging Instructions"

From The Crime Report here, "Memo to Sessions: Why Treatment for Drug Addiction Makes More Sense Than Prison"

From The Federalist here, "Sessions Has Neither The Authority Nor The Evidence To Pursue A New Drug War"

From Law360 here, "Sessions Memo Could Create Friction In Plea Negotiations"

From the New York Daily News here, "The true toughness Jeff Sessions must show"

From the New York Law Journal here, "The Sessions Memo: Back to the Past?"

Prior recent related posts: 

UPDATE: A helpful reader pointed out this Washington Post commentary from a former US Attorney headlined "Jeff Sessions to federal prosecutors: I don’t trust you." It starts this way:

Last week Attorney General Jeff Sessions announced policy changes directing federal prosecutors to charge people suspected of crime with the “most serious, readily provable offense” available in every federal case.  In doing so, he promised that prosecutors would be “un-handcuffed and not micromanaged from Washington.”

That justification is laughable.  In actuality, the announcement demonstrates a stunning lack of faith in the decisions of line-level prosecutors.  It imposes — rather than removes — the handcuffs for prosecutors, returning us to the policy of the 1990s and 2000s, when incarceration and corrections spending spiked without a measurable impact on drug use or public safety.

May 21, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, May 18, 2017

Highlighting how the Sessions Memo may have particular impact for drug trafficking cases in certain districts

News2-2-Graph-SentencingWith thanks to commenter Daniel for the tip, I just saw this notable local article from New Mexico providing a notable local perspective on the potential impact of the new Sessions federal charging/sentencing memo.  The article is headlined "Two Steps Back: How Jeff Sessions’ memo on federal prosecutions could take New Mexico back to a harsher era," and here are excerpts:

A directive from newly appointed US Attorney General Jeff Sessions instructing prosecutors to seek the most severe charges available threatens to stunt recent progress toward less federal prison time for low-level drug offenders in New Mexico, defense lawyers and drug policy reform advocates tell SFR.

“Drug mule” cases make up many of the drug crimes prosecuted in federal court in New Mexico, federal public defender John Butcher says. Some low-level drug runners who get caught mid-shipment are apprehended in Albuquerque, the first overnight stop on Amtrak’s Southwest Chief train from Los Angeles to Chicago. Others are picked up throughout the federally designated “High Intensity Drug Trafficking Area,” which runs east from Farmington down to Santa Fe and into Albuquerque before blanketing most of the southern border from Roswell on. The vast majority of federal drug charges in the state are for trafficking. Possession and brokering drug deals comprise a smaller percentage of crimes.

Drug mule cases, most often involving nonviolent and low-level drug offenders, were among those singled out in a memo issued by former attorney general Eric Holder in August 2013. It encouraged prosecutors not to charge such people with crimes that could trigger stiffer mandatory minimum sentences, which prevent judges from sentencing defendants to prison for fewer than a predetermined number of years. For example, since 1986, federal law has mandated that a person convicted of holding five kilograms of cocaine with intent to distribute be sentenced to a minimum of 10 years in prison for a first offense.

Holder asked prosecutors to back off. If somebody was arrested with five kilograms of cocaine, but was not an organizer, did not have deep ties to criminal groups and wasn’t carrying a gun or another indicator of violent intent, prosecutors were asked not to charge that person with the quantity that would have triggered the 10 years. Data from the US Sentencing Commission suggests that some federal prosecutors in New Mexico may have heeded Holder’s directive. It shows that the percentage of sentenced federal drug offenders who received mandatory minimums immediately dropped from 42 percent in 2013 to 25 percent in 2014, and even fell to 20 percent in 2015, the most recent year for which information is available. That’s about half the figure from 2006, the first year the commission began tracking this data. The decrease came even as the number of people prosecuted for trafficking rose from an average of 586 between 2010 and 2012—before the Holder directive—and 646 between 2014 and 2016.

But Sessions has now directed prosecutors to reverse course. The new attorney general wants federal prosecutors to seek the most serious and readily provable charge against all defendants—regardless of circumstance. “This is going to go after the low-level minimum participants with minor records, because they’re the ones who were getting breaks [under Holder],” Butcher tells SFR. “Breaks” didn’t mean that low-level runners weren’t being charged or sentenced to prison after 2013, he says. But in some cases, they weren’t getting the book thrown at them. Butcher suggests the new policy will have an outsized effect in New Mexico, with its relatively higher number of trafficking cases involving nonviolent offenders....

Since 2013, Santa Fe’s Law Enforcement Assisted Diversion (LEAD) program, wherein police work with case managers and the local district attorney to enroll low-level offenders in treatment programs, has served as a national example for non-punitive approaches to drug use.  District Attorney Marco Serna doesn’t think there’s much overlap between those who would qualify for LEAD and those who could be charged with a federal drug crime, but he acknowledges that the city’s approach stands in contrast to Sessions’ hardline.  “For nonviolent crimes, we have our own state and local statutes, and luckily I get to influence how we handle it in the first district,” Serna says. “And we won’t be taking that approach.”

Prior recent related posts: 

UPDATE: I just saw this notable new New York Times article which drills even deeper into the impact of the Holder Memo by identifying a number of low-level federal drug offenders who seemingly benefited from more lenient charging practices.  The piece is headlined "5 Years, or 20? How Sessions’ Get-Tough Order Would Extend Prison Stays." and it is interesting to see the cases profiled in the article and even more interesting to consider whether the offenders in the article might have been able, even if charged with more serious offenses, been able to avoid the application of a mandatory minimum sentence through the statutory safety valve or through providing cooperation.

May 18, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, May 15, 2017

Senator Rand Paul criticizes new Sessions Memo while promising to reintroduce Justice Safety Valve Act

In this new CNN commentary, headlined "Rand Paul: Sessions' sentencing plan would ruin lives," Senator Rand Paul provides a lengthy criticism of the new charging and sentencing memorandum released late last week by Attorney General Jeff Sessions (basics here).  Here are a few excerpts:

The attorney general on Friday made an unfortunate announcement that will impact the lives of millions of Americans: he issued new instructions for prosecutors to charge suspects with the most serious provable offenses, "those that carry the most substantial guidelines sentence, including mandatory minimum sentences."

Mandatory minimum sentences have unfairly and disproportionately incarcerated a generation of minorities. Eric Holder, the attorney general under President Obama, issued guidelines to U.S. Attorneys that they should refrain from seeking long sentences for nonviolent drug offenders.

I agreed with him then and still do. In fact, I'm the author of a bipartisan bill with Senator Leahy to change the law on this matter. Until we pass that bill, though, the discretion on enforcement -- and the lives of many young drug offenders -- lies with the current attorney general.

The attorney general's new guidelines, a reversal of a policy that was working, will accentuate the injustice in our criminal justice system. We should be treating our nation's drug epidemic for what it is -- a public health crisis, not an excuse to send people to prison and turn a mistake into a tragedy.

And make no mistake, the lives of many drug offenders are ruined the day they receive that long sentence the attorney general wants them to have....

I want to go the opposite way from the attorney general. That's why I've partnered with Senator Leahy and once again will be reintroducing the Justice Safety Valve Act. This isn't about legalizing drugs. It is about making the punishment more fitting and not ruining more lives.

The legislation is short and simple. It amends current law to grant judges authority to impose a sentence below a statutory mandatory minimum. In other words, we are not repealing mandatory minimums on the books -- we are merely allowing a judge to issue a sentence below a mandatory minimum if certain requirements are met.

We need this legislation because while there is an existing safety valve in current law, it is very limited. It has a strict five-part test, and only about 23% of all drug offenders qualified for the safety valve.... Each case should be judged on its own merits. Mandatory minimums prevent this from happening.

Mandatory minimum sentencing has done little to address the very real problem of drug abuse while also doing great damage by destroying so many lives, and most Americans now realize it.... Pew Research found that 67% of Americans want drug offenders to get treatment, not prison, and over 60% want an end to mandatory minimum sentences.

I urge the attorney general to reconsider his recent action. But even more importantly, I urge my colleagues to consider bipartisan legislation to fix this problem in the law where it should be handled. Congress can end this injustice, and I look forward to leading this fight for justice.

I am quite pleased to see Senator Paul astutely use the new Sessions Memo to justify reintroduction and a renewed campaign for his elegant Justice Safety Valve Act (JSVA).  For a host of reasons, most notably simplicity, the JSVA has long been my favorite piece of proposed legislation to deal with the problems created by mandatory minimum sentencing statutes.   Along with Harlan Protess back in 2013, as detailed here, I even took to the pages of the Wall Street Journal to urge then President Obama to throw his support behind the JSVA. 

Given that Prez Obama never expressed support for the JSVA and that this bill never even got a vote in the Senate Judiciary Committee when under control by Democrats, I am not optimistic that the Sessions Memo will be enough to seriously enhance the JSVA's passage prospects.  But I am encouraged to see Senator Paul continuing to be an active and vocal and effective pace-setter for reform of federal mandatory minimum sentencing provisions and practices.

May 15, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, May 14, 2017

Some more notable reactions to the Sessions Memo

I highlighted in this prior post some first-cut reactions to the new charging and sentencing memorandum released yesterday by Attorney General Jeff Sessions (basics here). Now I will highlight a few more I have seen:

From NBC News here, "Attorney General Sessions Charts Course Back to Long Drug Sentences"

From BuzzFeed News here, "Former Federal Judges Say Sessions’ New Policy Will Take Power Away From The Courts"

Also from BuzzFeed News here, "Republicans And Democrats Are Blasting The "Dumb On Crime" Sessions Order For Tougher Sentencing"

From the Wall Street Journal here, "As Jeff Sessions Pushes for Tougher Drug Sentences, Previous Policy Gets Mixed Grades"

From the Washington Examiner here, "Former US attorneys hate Jeff Sessions' memo on tougher sentences"

Prior recent related posts: 

May 14, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, May 12, 2017

Some notable first-cut reactions to the Sessions Memo

The Hill already has two articles reporting on some notable reactions to the new Sessions Memo.  The reactions are not surprising, but they are still interesting:

Obama AG slams Sessions for shift to harsher sentencing

GOP senator: Sessions's push for tougher sentences highlights 'injustice'

Eric Holder is the AG referenced in the headline of the first article, and Senator Rand Paul is the one referenced in the headline of the second one. Senators Mike Lee and Tom Cotton also are quoted in the second article, and long time readers of this blog can likely guess the nature of their takes on the Sessions Memo.

Last but certainly not least, Bill Otis has reactions here at Crime & Consequences under the heading "Jeff Sessions Returns DOJ to Sound Charging Policy." Here are choice excerpts (emphasis in original):

This has been reported as "new" guidance, but it's not. It's the return of the "most serious readily provable" standard that governed charging policy during most of my 18-year tenure in the US Attorney's Office, a tenure that ended last century. The policy continued during the George W. Bush Administration.

It was right then and it's right now. It amounts to telling prosecutors to charge what the defendant actually did. This is so obviously correct -- aligning the allegations with the facts -- that I have a hard time seeing any serious objection to it.

It does allow exceptions -- that is, in practice, more lenient charging -- in unusual cases. That too seems obviously correct, together with the Attorney General's caveat that such cases must, indeed, be out of the heartland, and the reasons for leniency should be documented and approved by a more senior AUSA or the USA himself. This prevents inattentive, inexperienced or irresolute AUSA's from doing their own thing (or being bullrushed by an aggressive or smooth-talking defense lawyer).

On its face, this policy is not that much of a change from the one Eric Holder adopted, but there is an important change in emphasis and purpose....

It will be attacked by the Left as likely to produce longer sentences. That's probably so. However, there is a ready mechanism by which such sentences can be avoided: Mr. Nicey might consider quitting the smack business and getting a normal job like everybody else. I'm just not a partisan of the notion that it's always the public that has to change. Instead, in both practical and moral senses, we'll be better off when we insist that it's the criminal who has to change. We don't need less serious charging. We need less crime.

Criminals make choices. We should give them enhanced incentives to make better ones, for them and for us. The Attorney General's directive does just that.

Prior recent related post: 

May 12, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (28)

Misreporting of the Sessions Memo and the challenge of nuance in prosecutorial charging policies

I have already had the pleasure of speaking with a couple of thoughtful members of the media about the new charging and sentencing memorandum released today by Attorney General Jeff Sessions (basics here), and those conversations have already reinforced my sense of how challenging it is to fully and fairly assess the import and impact of the "Sessions Memo" in our modern sound-bite world. But while I can understand and sympathize with media members struggling to fully understand and contextualize the Sessions Memo, I felt compelled to blog my frustration with media efforts like this one from the New York Daily News that in their headline and lead get the basic story fundamentally wrong:  

Attorney General demands prosecutors seek max sentences for drug offenders

Attorney General Jeff Sessions is taking the war on drugs nuclear, ordering federal prosecutors across the country to pursue the longest prison sentences possible for drug offenders and others in a reversal of Obama-era policies.

This is just flat out wrong, as the very text of paragraph four of the short Sessions Memo makes plain (with my emphasis added): "prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553."

I think it fair (though still an incomplete short-hand) to talk about the Sessions Memo demanding prosecutors to seek tougher or harsher or longer sentences, but it is dangerously wrong to assert that the Sessions memo requires pursuit of "max sentences" or "the longest prison sentences possible."  Indeed, it seems that AG Sessions very much believes that his Memo actually provides even "more play in the joints" than pre-Holder era prosecutorial guidelines.  This is evidence by the text of this speech he gave today in New York talking about his new memo, which includes these excerpts:

Charging and sentencing recommendations are bedrock responsibilities for any federal prosecutor.  And I trust our prosecutors in the field to make good judgements.  They deserve to be unhandcuffed and not micro-managed from Washington.   Rather, they must be permitted to apply the law to the facts of each investigation.  Let's be clear, we are enforcing the laws Congress passed – that is both our fundamental mission and constitutional duty.

Going forward, I have empowered our prosecutors to charge and pursue the most serious, readily provable offense.  It means we are going to meet our responsibility to enforce the law with judgment and fairness.  It is simply the right and moral thing to do.  But it is important to note that unlike previous charging memoranda, I have given our prosecutors discretion to avoid sentences that would result in an injustice.

Prior recent related post: 

May 12, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

AG Sessions issues new tougher charging and sentencing guidelines to federal prosecutors

As reported in this official Justice Department press release, "Attorney General Jeff Sessions today issued the attached memorandum [available here] establishing charging and sentencing policies for the Department of Justice." The press release further reports:

This policy was formulated after extensive consultation with Assistant U.S. Attorneys at both the trial and appellate level, as well as U.S. Attorneys and Main Justice Attorneys. It ensures that the Department enforces the law fairly and consistently, advances public safety and promotes respect for our legal system.

Attorney General Sessions will issue further remarks on the new policy later this morning.

This memorandum is relative short and to the point, and here is some of its key language:

Charging and sentencing recommendations are crucial responsibilities for any federal prosecutor.  The directives I am setting forth below are simple but important.  They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted.  In that case, prosecutors should carefully consider whether an exception may be justified.  Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553.  In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

This AP article about this new AG Sessions' memo provides this brief and effective account of what these directions change:

The directive rescinds guidance by Sessions’ Democratic predecessor, Eric Holder, who told prosecutors they could in some cases leave drug quantities out of charging documents so as not to trigger long sentences. Holder’s 2013 initiative, known as “Smart on Crime,” was aimed at encouraging shorter sentences for nonviolent drug offenders and preserving Justice Department resources for more serious and violent criminals.

Though Holder did say that prosecutors ordinarily should charge the most serious offense, he instructed them to do an “individualized assessment” of the defendant’s conduct. And he outlined exceptions for not pursuing mandatory minimum sentences, including if a defendant’s crime does not involve violence or if the person doesn’t have a leadership role in a criminal organization.

This development is a very big deal, although it is not especially surprising and the thousands of federal prosecutors who implement this policy around the nation will ultimately determine how dramatically federal charging and sentencing practices change in the months and years ahead.  (And one interesting point for the historical record: the AG Sessions charging and sentencing memo is dated May 10, but it would seem the brouhaha over the Comey firing delayed its official public release.)

Prior recent related post: 

May 12, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, May 09, 2017

New buzz about AG Sessions considering new tougher charging guidance for federal prosecutors

I had the great honor and privilege tp speak earlier today to a terrific group of judges, along with a terrific lawyer from the US Sentencing Commissions, about federal sentencing trends and developments.  We started the discussion with a particular focus on drug cases, and I mentioned that I was expecting to see new, probably tougher, charging guidelines emerging from the Department of Justice under its new leadership.  This new Washington Post article, headlined "Sessions weighs return to harsher punishments for low-level drug crimes," suggests my informed speculation here may quite soon be reality. Here are excerpts from the piece:

Attorney General Jeff Sessions is reviewing policy changes set in place by the Obama administration that eliminated harsh punishments for low-level drug crimes and could direct federal prosecutors to again charge drug offenders with crimes carrying the most severe penalties, according to U.S. officials.

The change, if adopted, would overturn a memo by then-Attorney General Eric H. Holder Jr. that instructed prosecutors to avoid charging low-level defendants with drug offenses that would trigger severe mandatory minimum sentences. Only defendants who met certain criteria, such as not belonging to a large-scale drug trafficking organization, a gang or a cartel, qualified for the lesser charges under Holder’s instructions.

If new charging instructions are implemented, it would mark the first significant move by the Trump administration to bring back the drug war’s toughest practices — methods that had fallen out of favor in recent years as critics pointed to damaging effects of mass incarceration.

“As the Attorney General has consistently said, we are reviewing all Department of Justice policies to focus on keeping Americans safe and will be issuing further guidance and support to our prosecutors executing this priority — including an updated memorandum on charging for all criminal cases,” Ian Prior, a department spokesman, in a statement to The Washington Post.

Sessions has recently peppered his speeches to law enforcement groups throughout the country with tough-on-crime rhetoric and urged Justice Department lawyers to prosecute more drug and gun cases.

The attorney general is considering having his prosecutors bring the most severe charges against drug traffickers, whether they are low-level defendants or not, according to officials who spoke on the condition of anonymity to discuss internal deliberations. Sessions also may allow prosecutors to use more “enhancements” to make sentences even longer. Under what’s referred to as “Section 851” of the Controlled Substances Act, defendants charged with a federal drug, firearm or immigration crime may face enhancements if they have previously been convicted of a felony drug offense.

Holder told his prosecutors four years ago that they should stop using enhancements except in certain cases — such as when the defendant was involved in the use or threat of violence — in an effort, he said, to make punishments more fairly fit the crime.

Holder’s changes came in August 2013 during a growing push among lawmakers and civil rights groups to roll back the strict charging and sentencing policies created in the 1980s and 1990s at the height of the war on drugs. Sen. Rand Paul (R-Ky.) was one of the sponsors of bipartisan criminal-justice legislation that would have reduced some of the mandatory minimum sentences for gun and drug crimes — a bill that Sessions opposed and helped derail....

The Holder memo was also supported by many of the U.S. attorneys in the Obama administration. But some prosecutors across the country fought Holder’s broad effort to eliminate mandatory minimum prison sentences for certain drug offenders, saying it damaged their ability to build cases from the ground up against major drug organizations.

As I noted in this post a few months ago, the new Attorney General has already issued directives that lead me to suspect that we would be seeing a formal new "Sessions Memo" that seeks to remove some of the "play in the joints" that former AG Eric Holder introduced through prior charging memorandum issued back in 2010 and 2013. Indeed, I have been a bit surprised we have not yet seen new directives from AG Sessions yet in this arena, and this new Post article leads me to suspect a Sessions Memo could be coming out any day now.

UPDATE:  This New York Times article, headlined "Sessions to Toughen Rules on Prosecuting Drug Crimes," suggests that new charging guidance from AG Sessions could be released any day now.  Here is a key paragraph from the article that provides additional context for this important coming federal criminal justice development:

Current and former government officials have said for weeks that Mr. Sessions’s new policy could come at any time. They said Tuesday that they expected to see it finalized shortly, and Mr. Sessions himself has foreshadowed the announcement this year, calling for a return to tougher federal charging policies in speeches and issuing memos telling prosecutors to anticipate policy shifts.

May 9, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, May 05, 2017

Stories of severe federal sentences and the judges forced to impose them

Two different news sources this morning have these two equally interesting pieces about federal sentencing practices and federal judges struggling with their sentencing responsibilities:

May 5, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, May 02, 2017

Florida legislative debate provides interesting sign of the modern mandatory-minimum drug sentencing times

This new local article from Florida, headlined "Steube bill aimed at curbing overdoses sparks drug sentencing debate," highlights how legislators even in traditionally "tough" states are starting to have much more nuanced discussions about mandatory minimum sentencing proposals. Here are the interesting details:

Legislation aimed at tackling the opioid epidemic in Florida sparked a debate about mandatory minimum drug sentences in the state Senate Tuesday, prompting an amendment that put the measure sponsored by two Southwest Florida lawmakers in jeopardy.

Rep. Jim Boyd, R-Bradenton, and Sen. Greg Steube, R-Sarasota, have been pushing a bill that would establish penalties for the possession of large amounts of fentanyl — a powerful synthetic opioid often laced with heroin — and its many derivatives.  Manatee and Sarasota counties were the top two communities in the state for fentanyl-related deaths per capita in 2015, according to the Florida Medical Examiners Commission.  Fentanyl was responsible for 911 deaths across Florida in 2015, and continues to be a major health crisis across the state.

But mandatory minimum drug sentences have come under increasing scrutiny nationwide and there is bipartisan concern in the Florida Legislature about what many lawmakers view as overly harsh sentencing laws.  The fentanyl bill — with the mandatory minimums included — already has passed the House, but both Republicans and Democrats in the Senate took aim at the sentencing aspect of the bill Tuesday.

The Senate amended the bill — over Steube’s objections — to strip out the mandatory minimums, which included at least three years in jail for possession of between four and 14 grams, at least 15 years for possession of between 14 and 28 grams and at least 25 years for possession of more than 28 grams. That amendment may kill the bill. Boyd does not seem inclined to push for it now, saying in a text message: “I don’t believe the bill deals with this deadly opioid problem” as amended.

Boyd said if the House takes up the Senate bill he would seek to strip off the sentencing amendment. But that likely would keep it from clearing the Senate. Steube noted that the amended legislation still makes possession of large amounts of fentanyl a crime for the first time.  “We’re still taking — in my opinion — a good step in the right direction,” Steube said of the amended bill.

The Senate debate showed the appetite within the chamber for criminal justice reform, an issue that has been championed by Republican Senate President Joe Negron.

Some lawmakers argued that any reforms tackling mandatory minimum sentences should be done in a comprehensive way and that the fentanyl bill was not the right place to start the discussion. “I have some concerns about how we have these bills come along and we put minimum mandatories on them every year,” said Sen. Rob Bradley, R-Fleming Island. But Bradley added that the Senate needs to have a “global discussion” about the issue and argued against the amendment.

Sen. Jeff Brandes, R-St. Petersburg, countered that “it’s the right conversation to have because minimum mandatories don’t work in my opinion.”  Judges need to have discretion over when to crack down and when to show leniency added Sen. David Simmons, R-Altamonte Springs. Tough drug sentencing laws can destroy lives, he said.

Steube said he is sympathetic to concerns about mandatory minimums but believes reform efforts should start with a drug such as marijuana that is not deadly.  “I certainly didn’t want this bill to be the bill that’s talked about,” he said.

The amendment was proposed by Sen. Randolph Bracy, one of the few Democrats in the chamber to chair a committee.  The Orlando lawmaker was not expecting the amendment to generate such a robust debate.  He hopes to address the issue of mandatory minimums in a broad way in his committee next year.

May 2, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Highlighting prosecutorial efforts to prevent rolling back of mandatory minimums

This new Slate article highlights the state of debate over mandatory minimums in various states.  The piece is headlined "Mandatory Minimums Don’t Make Us Safer: Many states are realizing this and changing the rules.  But district attorneys seem intent on blocking the progress." Here is how it gets started:

Mandatory minimum sentences are among the most lasting and damaging result of previous eras of draconian drug policy.  They include, for example, laws requiring at least two years in prison for all drug crimes within 1,000 feet of a school.  Enforcement can lead to irrational outcomes, locking people up for very minor crimes and stripping away discretion from judges.

Moreover, research has shown that tough-on-crime policies like mandatory minimums have not been effective at reducing crime.  Instead, mandatory minimum laws have been shown to cause expanded racial disparities in sentencing.  States that shifted away from minimums have seen lower prison populations and bigger cost savings. And all 17 states that decreased their prison populations over the last decade saw a reduction in crime rates.

Many states are leading the charge in doing away with mandatory minimum laws.  From Massachusetts to Iowa to Florida, momentum has grown in state legislatures this year to rewrite laws that guarantee long sentences for low-level offenders.  The reform has, in most places, won broad bipartisan support, from elected officials, judges, advocacy groups on the right and the left, and law enforcement officials.

One of the only major groups to consistently oppose reforming mandatory minimums is district attorneys.  In almost every state considering reform, local DAs and DA associations have lined up against it, arguing that reducing mandatory sentences would lead to an upswing in drug abuse.  No matter that this fearmongering is likely untrue.  The national scare over opioid use and overdose is fueling the district attorneys’ campaign for tougher drug laws.

The district attorneys claim they need the threat of a long, mandatory sentence as leverage to cajole defendants into pleading guilty to lower crimes and that mandatory minimums ensure a measure of consistency in sentencing.

Boil away this rhetoric and you get to the heart of the argument: “It’s all about power,” said Kevin Ring, the president of the advocacy group Families Against Mandatory Minimums.  “Mandatory minimums have given DAs — who already had unreviewable charging authority — the ability to pick sentences and cut judges out of the picture.”

The article goes on the discuss developments and debates over mandatory minimums in Massachusetts, Iowa, Nebraska, Florida and Pennsylvania.  And, as regular readers know, this dynamic has also been on full display in the federal system in recent years where various current and former prosecutors (including the current Attorney General) have been the loudest voices opposing proposed federal statutory reforms seeking to reduce the severity of mandatory minimum sentences for certain drug offenses.

May 2, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Thursday, April 27, 2017

"Mandatory Minimum Policy Reform and the Sentencing of Crack Cocaine Defendants: An Analysis of the Fair Sentencing Act"

The title of this post is the title of this notable new article by David Bjerk just published by the Journal of Empirical Studies. Here is the abstract:

The Fair Sentencing Act of 2010 (FSA) affected the U.S. federal mandatory minimum sentencing laws for crack cocaine offenders, and represented the first congressional reform of sentencing laws in over 20 years.  A primary goal of this legislation was to lessen the harshness of sentences for crack cocaine offenders and decrease the sentencing gap between crack defendants and powder cocaine defendants.  While the mean sentence length for crack offenders fell following the implementation of the FSA, these changes appear to primarily reflect the continuation of ongoing sentencing trends that were initiated by a variety of noncongressional reforms to federal sentencing policy that commenced around 2007.  However, the FSA appears to have been helpful in allowing these trends to continue past 2010.

April 27, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact | Permalink | Comments (0)

Sunday, April 16, 2017

Reviewing the realities of a new sheriff in charge at the US Department of Justice

The Hill has this lengthy new article, headlined "Sweeping change at DOJ under Sessions," reviewing various ways in which the new Attorney General has set forth new policies and set a new tone for the work of the Department of Justice. Regular readers will find everything in the article familiar, but some of the commentary about DOJ changes are still new and notable. Here are excerpts:

Attorney General Jeff Sessions has brought sweeping change to the Department of Justice. In just two months as the nation’s top cop, Sessions has moved quickly to overhaul the policies and priorities set by the Obama administration....

Alex Whiting, faculty co-director of the Criminal Justice Policy Program at Harvard Law School, said it appears Sessions is resurrecting the tough on crime policies last seen during the George W. Bush administration.  “Obama moved away from that approach, and I think in the criminal justice world there seemed to be a consensus between the right and left that those policies, those rigid policies of the war on drugs and trying to get the highest sentence all the time, had failed,” he said.  “I don’t know if he is really going to be able to persuade the department to follow his lead on this.”

In March, Sessions asked the remaining U.S. attorneys appointed by former President Obama to resign.  While previous administrations took the same step, Whiting questioned whether Sessions would be able find 94 prosecutors who will back the DOJ’s new approach.  “He can order and it will have an effect, but how far this gets implemented and with what kind of energy I think is really an open question, and if they will be able to persuade the rank and file to return in a full-fledge way to those policies,” he said.

In a statement to The Hill, DOJ spokesman Ian Prior said Sessions and the Justice Department are focused on fighting violent crime and protecting the public. “When it comes to sanctuary cities, all we are requiring is that they, just like every other individual in the United States, follow Congress’ duly enacted laws,” he said. “If requiring individuals and entities to follow the law and combating violent crime are seen as dramatic reversals, then we fully support such a sea change.”

While the attorney general has acknowledged that overall crimes rates are at historic lows, he has warned that trend is about to reverse. Even if that’s true, Inimai Chettiar director of the Justice Program at the Brennan Center for Justice argued that arresting and incarcerating people is not the solution. “Mass incarceration is not contributing to mass crime declines, but it doesn’t appear Jeff Sessions knows that,” she said.

Advocates of scaling back mandatory minimums for prison sentences are expecting to see a major shift in the way crimes are prosecuted. “To the extent the Obama administration was saying, let’s be a little more judicious in the use of mandatory minimums, I think Sessions plans to put his foot on the gas and apply them anywhere and everywhere,” said Kevin Ring, vice president of Families Against Mandatory Minimums.

President Trump’s son-in-law and senior adviser Jared Kushner raised eyebrows late last month when he took a meeting with Sens. Chuck Grassley (R-Iowa), Dick Durbin (D-Ill.) and Mike Lee (R- Utah), the lead sponsors on the criminal justice reform bill that stalled in the last session of Congress.  While Sessions has never been a fan of efforts to reduce mandatory minimums, Chettiar called the meeting encouraging. “Kushner is supportive of criminal justice reform. … I think it’s possible there’s a strong advocate there,” she said.

Ring, however, isn’t holding his breath. “One day he’s on the Hill talking sentencing reform then next day he’s visiting the Middle East,” Ring said of Kushner. “He’s got two easy gigs — passing sentencing reform and bringing peace to the Middle East. Good luck with that.

Law enforcement groups that support Sessions, meanwhile, say the new attorney general is focused on the right things. “I think Sessions has brought a new focus to the core mission of the department, which is to make sure the nation is safe and secure in its law and make sure law enforcement operations are focused on the thing that matters most, preventing crime,” said Jonathan Thompson, executive director of the National Sheriffs’ Association.

Thompson said Sessions is taking a more holistic approach in preventing crime. “I think there’s a tendency to look at people who are incarcerated and say I really wish they weren’t there, but unfortunately they make personal choices,” he said. “The attorney general is saying you have to look at that end. You have a crime problem that could be growing and how do we respond to it? Obviously something worked.”

UPDATE: Over at Crime & Consequences, Bill Otis has this lengthy new post discussing at length everything that he thinks is wrong about the comments by Alex Whiting reprinted above near the start of the excerpt.  Everyone interested in the work of DOJ should check out Bill's post, and here is how it concludes:

Finally, I don't know who Prof. Whiting talks to at DOJ, but the career people I talk to are thrilled with Jeff Sessions' priorities, and are chomping at the bit -- not reluctant -- "to follow his lead on this."

If the sentencing "reform" people had a good case on the merits, why do they need to resort to this amount of deceit?

April 16, 2017 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, April 04, 2017

How many prior sentenced federal prisoners might now have "Dean claims" (assuming Dean is retroactive)?

As reported in this post from yesterday, and as explained a bit more via this write-up I provided to the fine folks at SCOTUSblog, the Supreme Court yesterday in Dean v. United States, No. 15-9260 (April 3, 2017) (available here) ruled that the Eighth Circuit had been wrong to hold that, "in calculating the sentence for [a] predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)."  According to the government's briefing in Dean, most of the circuits had also ruled like the Eighth Circuit (incorrectly) on this statutory sentencing issue — though I suspect that, in practice, a number of district courts did not consistently ignore 924(c) mandates when sentencing predicate offenses.

Given this background, I was surprised I did not think of the question in the title of this post until former AUSA Steven Sanders sent me an email with this query: "Any thoughts on whether Dean applies retroactively on 2255, on the (Montgomery) theory that the decision opens up the range of punishment and thus is substantive for Teague purposes?"   Regular readers familiar with my views about finality rules and sentencing errors (basics here, law review article here) should expect me to have plenty of thoughts about Dean retroactivity, most of which center around the view that Dean qualifies as retroactive.  Put simply, Dean seems to me to be a substantive ruling that applies retroactively.

Assuming Dean is retroactive, this recent "Quick Facts" publication from the US Sentencing Commission suggests there could be thousands (perhaps even tens of thousands) of federal prisoners with plausible Dean claims.  Specifically, that publication indicates that, in Fiscal Year 2015, over 1100 federal defendants were convicted under both section 924(c) and another predicate offense not carrying a mandatory minimum, and that the average sentence for this group was over 11 years in prison. Assuming 2015 was a fairly representative year — and the USSC publication actually suggests a larger number of defendants getting longer sentences in prior years — it is possible that well over 10,000 defendants (and maybe many more) could be in federal prison serving sentences that were imposed based on an understanding of applicable sentencing principles that Dean has now disrupted.

For various procedural and practical reasons, I doubt we will see thousands of "Dean resentencings" in the federal courts in the coming months even if thousands of prisoners got sentenced based on the wrong understanding of the applicable laws here.  But I do expect that there will be many more than just a handful or "Dean resentencing" efforts.

April 4, 2017 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, March 30, 2017

White House adviser Jared Kushner and Senate Judiciary Chair Charles Grassley meet on federal criminal justice reform

This new AP article reports that "Senate Judiciary Committee Chairman Chuck Grassley met with White House adviser Jared Kushner about criminal justice reform Thursday, giving supporters a small sign of encouragement that the issue could be revived under President Donald Trump."  Here is more context (but not much of substance) about the meeting:

[A reform] bill died in the Senate last year over conservative opposition, and its future has seemed unclear under Trump.  Attorney General Jeff Sessions, then a senator from Alabama, was a fierce opponent.  Former President Barack Obama was an enthusiastic backer of the effort, and supporters were skeptical that Trump would be as well, since he had dubbed himself "law-and-order candidate" and talked about a country in crisis, with terrorism in big cities and attacks on police.

Grassley, R-Iowa, confirmed the meeting with Kushner, Trump's adviser and son-in-law, which was first reported by BuzzFeed News, but would not comment on its substance.  The White House did not have immediate comment.  On whether the bill could be revived, Grassley said, "We're trying to reach some accommodation, if there needs to be any adjustment to the bill we had last year."

An unusual coalition — including the American Civil Liberties Union and the conservative Koch Industries — says the system is broken and supports changes.  Grassley and Texas Sen. John Cornyn, the No. 2 Republican in the Senate, and Illinois Sen. Dick Durbin, the No. 2 Senate Democrat, were sponsors of the bill.  House Speaker Paul Ryan, R-Wis., has also been a strong supporter of the effort.

Advocates were encouraged by the meeting.  Holly Harris of the Justice Action Network said she is hopeful that lawmakers in Congress are paying attention to several successful state efforts to make similar changes.  And given the bipartisan support, she said, it's legislation that has a real chance of passing. "Congress needs to prove it can accomplish something, and this is the perfect issue," she said.

I am disinclined to call this one meeting a sign that federal statutory sentencing reform is in the works again, but it is an encouraging developments nonetheless for those eager to see Congress do some more reform work in this space.

March 30, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4)

Monday, March 20, 2017

Split Louisiana Supreme Court refuses to allow jury to hear about potentially applicable mandatory minimum sentence for habitual offender

I just learned today about an interesting set of opinions handed down last week by the Louisiana Supreme Court in Louisiana v. Guidry, No. 2016-KK-1412 (La. March 15, 2017) (available here).  This lengthy local article about the decision, headlined "Jurors shouldn't be told possible mandatory minimums for repeat offenders, La. Supreme Court rules," provides this basic summary of the ruling and its context:

Louisiana jurors should not be told of possible mandatory minimum sentences defendants might face under the state's habitual offender law, because the knowledge could distract from their duty to determine guilt or innocence in a case, the Louisiana Supreme Court said in a split decision issued late Wednesday (March 15).

In a 5-2 ruling, the high court said the issue of possible mandatory minimums for repeat defendants "is too far attenuated from the guilt phase of trial to be discussed before a jury," and for a trial judge to allow such disclosure constitutes error. Chief Justice Bernette J. Johnson and Justice John L. Weimer dissented.

The decision comes in response to the Orleans Parish case of Corei Guidry, an accused drug dealer whose trial before Criminal District Court Judge Byron C. Williams has been stayed over this issue since last July.  Guidry, 29, faces 10 to 50 years if found guilty of possession with the intent to distribute heroin. Should he be convicted of what would be his fourth felony offense, District Attorney Leon Cannizzaro's office would have the post-trial option to file a multiple-offender bill.  If Guidry's prior history of three or more felony convictions can be proven at a post-conviction hearing, the judge would be required under state law to impose a mandatory minimum sentence of 50 years to life.

Here is how the majority opinion in this case begins:

The issue presented in this case is whether the trial court may allow a criminal jury to be informed of the possible mandatory minimum sentence faced by the defendant if, after a conviction on the offense being tried, he were to be sentenced under the Habitual Offender Law. For the reasons set forth below, we find the district court erred in denying the State’s motion in limine, which sought to disallow the defendant from mentioning in argument the mandatory minimum sentence the defendant could be subject to under the Habitual Offender Law should the State seek to enhance his sentence under that law and should the court find the State has proved all of the elements to warrant enhancement of the sentence. We find the issue of the possible mandatory minimum sentences that may be imposed if the defendant is convicted and the State successfully pursues enhancement of the sentence under the Habitual Offender law is too attenuated from the guilt phase of trial to be discussed before a jury, because it shifts the focus of the jury from its duty to determine guilt or innocence to issues regarding sentencing, possibly causing confusion of the issues and inviting the jury to speculate as to why a defendant may be facing such a term of imprisonment. Accordingly, we reverse the district court’s ruling.

And here is how the chief dissenting opinion starts:

I respectfully dissent and would deny the writ because the state has shown no abuse of discretion in the trial court’s denial of the state’s motion to prohibit the defense from referencing the possible life sentence that defendant will all but certainly face if convicted and adjudged a habitual offender. It has long been settled that it is within the trial judge’s discretion, in instances in which a specific punishment is not statutorily mandated, to permit or deny instruction or argument as to sentencing. The majority has accepted the invitation of the Orleans Parish District Attorney’s Office to establish a new per se rule which will substantially limit trial court discretion to control the information given to the jury. Under this new rule, any reference — whether by the court or in argument from the parties — to the enhanced sentence a defendant will face if he is convicted and adjudged a habitual offender, will be impermissible, unless perhaps the defendant elects to testify and subject himself to cross-examination about his prior convictions.

The trial court has the discretion to permit or prohibit references to sentencing, other than for those sentences automatically mandated by statute, because the trial judge sits in the best position to determine whether the penalty provisions at issue, including those applicable under the Habitual Offender Law, constitute “law applicable to the case,” of which the jury should be apprised under the circumstances of the particular prosecution.

I am unpersuaded that the trial court abused its discretion here by refusing to prohibit the defense from referencing the potential habitual offender sentence, especially in light of the overwhelming evidence that the Orleans Parish District Attorney’s Office almost reflexively (through his assistant district attorneys) institutes habitual offender proceedings upon securing the conviction at trial of a defendant with a prior felony. The prosecuting attorneys in Orleans Parish routinely wield the Habitual Offender Law, both during pre-trial plea negotiations and, in the event that tactic fails to yield a guilty plea, after obtaining a conviction at trial, to secure the harsher punishment of even non-violent offenders.

As the start of the dissenting opinion hints, there is a significant back-story to both the substantive and procedural issues surrounding this Louisiana case and the application of the state's Habitual Offender law.  Because various opinions in Guidry engage in that back-story in various ways, the full opinion is definitely worth a full read.

March 20, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, March 08, 2017

AG Sesssions issue memo directing US Attorneys focus on "drivers of violent crime" ... and indicating change to Holder's charging memos forthcoming

As reported via this official DOJ Press release, "Attorney General Jeff Sessions today directed federal prosecutors nationwide to engage in a focused effort to investigate, prosecute and deter the most violent offenders." Here is more from the release:

This builds on the announcement last week of the creation of the U.S. Department of Justice Task Force on Crime Reduction and Public Safety, which is central to the Attorney General’s commitment to combatting illegal immigration and violent crime, such as drug trafficking, gang violence and gun crimes, and to restoring public safety to all of the nation’s communities.

“Turning back our nation’s recent rise in violent crime is a top priority for the Department of Justice, and it requires decisive action from our federal prosecutors,” said Attorney General Sessions. “I’m urging each of them to continue working closely with their counterparts at all levels, and to use every tool we have to put violent offenders behind bars and keep our citizens safe.”

In a memo to federal prosecutors in the department’s 94 United States Attorney’s Offices, the Attorney General made clear that prosecuting violent criminals is a high priority and prosecutors should work closely with their federal, state, local and tribal law enforcement partners to target the most violent offenders in each district. Working together, law enforcement at every level should determine which venue – federal or state – would best get those identified immediately off our streets and punished appropriately for their crimes.

The memo states when federal prosecution is determined appropriate, federal prosecutors should ensure the individuals driving violent crime in their district are prosecuted using the tools at their disposal, which may include firearms offenses, including possession and straw purchasing offenses; possession of a firearm during and in relation to a violent crime or drug trafficking offense; Hobbs Act robbery; carjacking; violent crime in aid of racketeering; Racketeering Influenced and Corrupt Organizations Act; and drug offenses under the Controlled Substances Act, among others.

The memo is available at this link, and hard-core federal sentencing fans might be most intrigued by a line that appears at the end of the memo which states that "an updated memorandum for charging in all criminal cases will be forthcoming."  That line suggests to me that pretty soon we will be seeing a formal new "Sessions Memo" that seeks to remove some of the "play in the joints" that former AG Eric Holder introduced through prior charging memorandum issued back in 2010 and 2013.

March 8, 2017 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (10)

Sunday, March 05, 2017

"Women in Prison: Should they be treated differently from men?"

The title of this post is the title of a lengthy new examination of the incarceration rates of women in recent years just published here by the CQ Researcher, which seeks to provide "in-depth reporting on issues in the news." The full report requires a subscription, but here is the preview via the CQ Researcher website:

The number of women in state and federal prisons has surged since 1978 by nearly 800 percent — twice the growth rate for men.  Mandatory sentences for drug offenses enacted during the 1980s and 1990s have hit women particularly hard, many experts say.  But some prosecutors and Republicans dispute the claim that the so-called war on drugs has disproportionately hurt women.  They say mandatory sentencing has reduced crime, helped break up drug rings and ended sentencing disparities.

Reformers hope states' recent efforts to reduce prison populations and spend more on drug treatment will help women. But they say women still remain an afterthought in the penal system.  For example, reformers say courts and prisons rarely recognize women's responsibility as mothers or the factors underlying their participation in crime, such as domestic abuse.  The justice system, women's advocates say, needs to think creatively about how to help female prisoners.  Meanwhile, in the juvenile system, girls often receive harsher punishments than boys who commit similar offenses.

March 5, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, March 01, 2017

Justices seem disinclined to limit federal judicial sentencing discretion in Dean

The US Supreme Court yesterday heard oral argument in Dean v. United States.  The case will resolve a circuit split over whether federal district judges, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the firearm mandates.  The oral argument transcript, available here, is a interesting read for a bunch of reasons.  And I have a little summary of the argument posted here at SCOTUSblog.  Here is how that posting starts: 

It has now been more than a year since Justice Antonin Scalia passed away, but his jurisprudential spirit seemed to fill the courtroom yesterday as the Supreme Court heard oral argument in Dean v. United States At issue in Dean is whether a trial judge, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the severity of the mandated consecutive sentences.  During the oral argument, several justices endorsed the government’s contention that allowing a judge to give a nominal sentence for the underlying predicate offenses in these circumstances would largely negate Congress’ purpose in enacting Section 924(c).  But, echoing statutory interpretation principles that Scalia often championed in federal criminal cases, the justices also stressed that the text of the applicable sentencing statutes did not clearly foreclose the trial judge’s exercise of judicial sentencing discretion.  This textualist point may carry the day for the defendant. 

March 1, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, February 23, 2017

Florida legislators talk of repealing mandatory minimums for nonviolent offenses

As reported in this local article, headlined "In major Tallahassee reversal, mandatory sentences called a waste of taxpayer money," there is a notable movement to repeal some mandatory minimum sentences in the Sunshine State.  Here are the details:

Cynthia Powell is serving a 25-year sentence for selling 35 pills for $300 in 2002. Her incarceration at Homestead Correctional Institution costs taxpayers an average of $18,064 per year — or $451,600 by the time she is released in 2023.

The Florida Senate Criminal Justice Committee concluded Tuesday that’s money poorly spent. It voted unanimously for SB 290, which would end minimum mandatory sentences for nonviolent offenses like Powell’s.  The measure represents a major shift from the tough-on-crime bills of the last two decades that filled prisons and created what both liberals and conservatives now believe has been a subclass of lifers in jail and a waste of tax money.  The “prison diversion bill” would save the state $131 million in avoided costs and put 1,001 fewer people in jail, said Sen. Daryl Rouson, D-St. Petersburg, the bill’s sponsor.

The measure would allow judges to depart from the 118 minimum mandatory sentences in Florida law but excludes drug traffickers.  It restores the Florida Sentencing Commission, which existed from 1982 to 1997, but limits its scope to determining the severity ranking that adds points to an offender’s record based on certain offenses. Anyone who commits a violence offense, is not eligible for the court’s leniency.

Reforming Florida’s legacy of harsh sentencing is one of several reforms being pushed by a coalition of liberal and conservative advocates that were passed unanimously by the Senate committee on Tuesday. “We are in an interesting juncture in our society and the Legislature, where Democrats and Republicans in both chambers agree that it’s really time to look at our criminal justice system and start to make some reforms,” said Sen. Randolph Bracy, D-Orlando, chairman of the committee....

Greg Newburn, director of Families Against Mandatory Minimums, a conservative group that supports ending mandatory minimum sentences for nonviolent crimes, said “dozens of states have already made the decision to move in this area.” They include Georgia, Oklahoma and North Carolina. “The results are uniform,” he said. “We get lower crime. We get smaller prison populations. They’ve closed prisons and saved tens of millions of dollars.”

If Powell, the Homestead inmate, had sold two fewer pills in 2002, she would have gotten a 15-year sentence, he said. If she sold them today, it would be a seven-year sentence. Instead, she won’t be released until 2023. “There are many other people in similar situations who simply don’t need to be there,” he said. “It’s a waste of money. We receive no public safety benefit whatsoever.”

His organization supports full repeal of mandatory minimum drug laws — as states such as Michigan, New York and Delaware have done — but he considers the piecemeal progress proposed by the Senate “a good reform.”

Jim DeBeaugrine of the Center for Advanced Justice, a sentencing reform advocacy group, warned the committee that giving drug offenders shorter sentences will only keep them out of prison if they receive treatment for substance abuse and mental health issues. “If you try to do it on the cheap, the results of this outcome are compromised,” he said. “The only way you will ever end the issue of mass incarceration is you’ve got to stop putting so many people in prison.”

February 23, 2017 in Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (23)

Sunday, February 19, 2017

"I sentenced criminals to hundreds more years than I wanted to. I had no choice."

13FRISK-master675The title of this post is the headline of this recent Washington Post commentary authored by former federal judge Shira Scheindlin. Here are excerpts from a lengthy piece that merits a full read:

In my nearly 22 years as a U.S. district judge in New York, I sentenced roughly 1,000 defendants. Thankfully, not all were subject to “mandatory minimum” sentences — in which Congress has imposed a required statutory punishment for a particular crime. But many were; 145 federal crimes still require a minimum sentence, including distribution of narcotics, immigration violations and identity theft, just to name a few.

Every first-year law student learns that sentencing has four goals: retribution, incapacitation, deterrence and rehabilitation. Yet thanks mostly to the Sentencing Reform Act of 1984 and the Anti-Drug Abuse Act of 1986, I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge. And I was not alone. Over the years, many of my colleagues on the federal bench felt the same frustrations.

This problem upset me as soon as I was appointed in 1994. Mandatory minimums were almost always excessive, and they made me feel unethical, even dirty. After seven years, my patience had run thin and my conscience was troubled; I began to consider resigning. I sought the advice of a revered mentor, a federal judge with more than 30 years of experience. He pointed out that quitting would serve nobody, as another judge would be required to impose identical sentences anyway. He also said that if I left, the bench would lose a judge who could advocate for criminal justice reform through her decisions. So I remained. But to this day, I am pained by many of the sentences I was required by law to impose. While I bore the title “Honorable Judge,” I felt less than honorable and more like a complicit tool of an unjust system....

Judicial discretion in sentencing matters. Many judges, including me, routinely sentence below the guidelines, particularly for first-time, nonviolent drug offenders. Indeed, in 2015 only 36.5 percent of all drug offenses nationwide resulted in a guideline-compliant sentences. Between 2005 and May 2016, when I retired from the bench, I sentenced more than 200 defendants convicted of narcotics offenses and imposed a lighter-than-advised sentence more than 80 percent of the time. Had I sentenced at the top of the guidelines’ range, these defendants would have served more than a millennium of additional prison time.

After I left the bench, Peter Dubrowski — my last law clerk — and I decided that we would review the sentencing protocols for each of those 200 defendants. As I expected, we found strikingly similar storylines. The overwhelming majority of the defendants were indigent. Seventy-two percent had children to support, and many of the defendants were under the age of 25 — barely adults themselves. More than half had not graduated from high school, most had not obtained a GED, and barely 5 percent had attended college. A majority battled alcohol addiction, drug addiction or both, and had begun abusing substances by age 14. Most were unemployed. Most came from single-parent homes, and most had at least one parent who was, or had been, incarcerated....

Does the length of the sentence deter people outside the courtroom from committing crimes? This is a popular idea in our country. Over time, I came to believe it is fiction. If this effect was real, my fellow judges and I would have seen narcotics arrests and prosecutions decline over the years. They never did. No young man on the street was ever deterred from criminal activity by the sentence given to a buddy. “Contrary to deterrence ideology and ‘get tough’ rhetoric,” says a report from the Sentencing Project, a nonprofit that studies criminal punishment, the evidence “fails to support” deterrence.

February 19, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (11)

Thursday, February 09, 2017

Prez Trump signs three crime-fighting executive orders, including one to create a “Task Force on Crime Reduction and Public Safety”

As reported and summarized in this CBS News report, this morning "President Trump signed three executive actions Thursday aimed at bolstering law enforcement and targeting violent crime and criminal drug cartels." Here is more:

The first executive order, according to what Mr. Trump outlined during the signing ceremony in the Oval Office, is meant to direct the Departments of Justice and Homeland Security to “undertake all necessary and lawful action to break the back of the criminal cartels that have spread across our nation and are destroying the blood of our youth and many other people.” The president signed the action Thursday after swearing in Attorney General Jeff Sessions. Among other powers, the action gives broad authority to increase intelligence and lawn enforcement information sharing with foreign powers in order to crack down on “transnational criminal organizations” and their subsidiaries. It also instructs an interagency panel to compile a report on crime syndicates within four months.

“These groups are drivers of crime, corruption, violence, and misery,” the order reads. “In particular, the trafficking by cartels of controlled substances has triggered a resurgence in deadly drug abuse and a corresponding rise in violent crime related to drugs.”...

The president signed two other actions Thursday, including one that creates a task force within the Justice Department dedicated to “reducing violent crime in America.” The “Task Force on Crime Reduction and Public Safety” will have administrative and financial support from the Attorney General’s office, according to the text of the order.

The last action directs the DOJ to implement a plan to “stop crime and crimes of violence against law enforcement officers.” The order itself instructs the department to “pursue appropriate legislation...that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers.” That recommended legislation could include “defining new crimes of violence and establishing new mandatory minimum sentences for existing crimes of violence.” The order also directs a thorough evaluation of all grant funding programs currently administered by the Justice Department.

I am intrigued by all three of these orders, but I want to read the full orders before I comment on these.  Helpfully, the White House now has them available via these links:

Presidential Executive Order on a Task Force on Crime Reduction and Public Safety

Presidential Executive Order on Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking

Presidential Executive Order on Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers

February 9, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5)

Thursday, February 02, 2017

House Judiciary Chair Goodlatte says sentencing reform is part of his agenda

As detailed in this press release, House Judiciary Committee Chairman Bob Goodlatte yesterday discussed his agenda for the 115th Congress in a speech given to the Federalist Society at the National Press Club. Only a small section of the prepared remarks addressed criminal justice and sentencing reform, but what was said was still somewhat encouraging:

The Judiciary Committee also has the solemn responsibility to ensure our laws are fair, efficient, and enforced. Under my leadership, the Committee will continue to advance an agenda that ensures our federal criminal laws are designed to appropriately punish wrongdoers, are effectively and appropriately enforced, safeguard civil liberties, increase public safety, and work as efficiently as possible.

Both Ranking Member Conyers and I remain committed to passing bipartisan criminal justice reform. We must rein in the explosion of federal criminal laws, protect innocent citizens’ property from unlawful seizures, and enact forensics reforms to identify the guilty and quickly exonerate the innocent. We must also reform sentencing laws in a responsible way and improve the prison system and reentry programs to reduce recidivism.

Additionally, it’s imperative that we continually examine federal criminal laws to ensure they protect civil liberties while also providing law enforcement with the tools needed to fight crime and keep us safe.

February 2, 2017 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Monday, January 30, 2017

Is VP Pence going to be a key player for possible federal sentencing reform?

The question in the title of this post is prompted by this interesting new Daily Caller article headlined "Want Drug-Sentencing Reform? Look To Mike Pence, Congressman Says. Here are the details:

Criminal-sentencing reform proponents in Congress are “hopeful” that Vice President Mike Pence will be an ally, helping them to work with the new law-and-order administration to pass legislation to cut mandatory minimum sentencing for drug-law offenders. “I’ve got reason to be hopeful,” House Oversight Committee Chairman Jason Chaffetz told reporters at a morning session of the Seminar Network, a large group of wealthy libertarian and conservative donors gathered in Palm Springs by Charles and David Koch....

Speaking to reporters alongside Sen. Mike Lee, also of Utah, Chaffetz said, “Gov. Pence, having been a governor, he understands this. In the end, he’s done some wise things. And I also think you will see concerted support from conservative governors who will buoy up any support in the White House.”

“If you’re going to be tough on crime, you better be smart about it.  And there are hardened criminals who do need to spend the rest of their lives in prison.” But, he added, we need to fix the problem of repeat offenders spending years in prison for drug crimes.

Doug Deason, a Seminar Network donor with an interest in sentencing reform, highlighted the White House’s new legislative director, Marc Short, as another reason to be hopeful. Before joining the administration, Short was a longtime adviser to Pence and a lead deputy in the libertarian Koch network. “He cares passionately about criminal justice reform,” Deason said.  Deason, a Texas businessman who is president of Deason Capital Services, was less enthusiastic about Sessions, telling reporters, “I’m glad they got him out of the Senate, they got him out of the way!”

Chaffetz defended Sessions, however, pointing to the Fairness in Sentencing Act the Alabama senator shepherded through in 2010, reducing the difference between sentences for crack cocaine and powder cocaine. “I think last year we were caught up in presidential politics… and I think he’s in a different position now,” Chaffetz said....

“We were so close last time,” Lee, a member of the Senate Committee on the Judiciary, lamented to reporters at the seminar.

January 30, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Sunday, January 22, 2017

Making the case again against mandatory minimums

Mark Holden has this new op-ed, given the headline "Mandatory minimums are a crime in themselves," which discusses the well-known case of Weldon Angelos and then articulates the effective arguments against mandatory minimum sentencing statutes generally. Here are excerpts:

America's criminal justice system is broken. Too many of our fellow citizens are rotting behind bars, unable to atone for their mistakes, contribute to their communities and lead lives of meaning and fulfillment. It's not just a crisis — it's a crime in and of itself.

If you don't believe us, just go to the Sundance Film Festival this weekend. There you'll see a trailer for a new documentary about Weldon Angelos and his firsthand experience with the criminal justice system.  As a lawyer with Koch Industries, I learned about Weldon Angelos when he became the poster child for the unfair and unjust sentences that are all too common, especially for low-level and nonviolent offenders....

Even though he was a first-time, nonviolent offender [convicted of multiple marijuana distribution and gun possession charges], Weldon Angelos received a staggering 55-year prison sentence with a release date of October 2051. He would have received a shorter sentence for being a murderer or terrorist....

Weldon's story, thankfully, has a happy ending. Last May, after 12 years in prison, a federal court granted him an immediate reduction to his sentence. In a show of true compassion, the federal prosecutor who prosecuted him in the first place initiated this effort. Weldon has since returned to his family and his life — a life that only months ago seemed would be spent behind bars.

Yet the laws behind such grossly unjust punishments are still on the federal books. So are many other mandatory sentencing laws. Rolling them back — or repealing them outright — is one of the most important reforms before Congress.

This is especially important for federal drug offenders, over 260,000 of whom have been sentenced under mandatory minimums. Distressingly, 86 percent of current drug offenders in federal prison committed nonviolent crimes, and the same number were low-level offenders.

The case against mandatory minimum sentencing laws is simple. While initially created with good intentions, they typically do far more harm than good. Mandatory minimums empower prosecutors to a dangerous degree. They alone have the power to bring charges against offenders — if they bring ones associated with high mandatory minimums, the judge has little choice but to accept it, even if other charges might be more appropriate. Nowhere else in America's criminal justice system are judges and juries so powerless.

And while they are supposed to lower crime rates, studies have shown that mandatory minimums have had only a minor effect at best. Hardened criminals — the real bad guys — are still usually able to get favorable deals, while low-level ones get stuck with the harshest possible sentences. Last but not least, mandatory minimums create perverse incentives for the police themselves. If authorities truly felt Weldon was a threat to public safety, they would have arrested him the first time he sold marijuana to the informant. Instead, law enforcement allowed him to sell drugs two more times to enhance the sentence. This is fundamentally unjust.

The evidence points to the inescapable conclusion that mandatory minimums must be reformed, and fast. Congress has an opportunity to make law enforcement jobs less dangerous, enhance public safety for all, bring communities together, and help countless people improve their lives — people like Weldon Angelos. It's time to restore justice to America's criminal justice system.

January 22, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (14)

Friday, January 06, 2017

An optimistic accounting of many areas for bipartisan federal criminal justice reform ... and good lines of inquiry for AG nominee Jeff Sessions

The week brought this extended commentary by Mark Holden at The Hill under the headline "Criminal justice reform is ripe for bipartisan achievement." I recommend the piece in full, and here are highlights of the reforms urged (with Holden's accounting of "reason it could pass" left out so readers will be encouraged to click through):

Criminal justice reform has been one of the few policy areas where Republicans and Democrats have forged bipartisan consensus.  They have come close to passing reform the past two years, and now it’s up to GOP lawmakers to pick up where they left off. Leaders as diverse as Sens. Cory Booker (D-N.J.) and Mike Lee (R-Utah) agree that the current system is broken....

That’s why it’s critical that leaders in Congress take up criminal justice reform. If they focus on six key areas of reform, there’s a real possibility that legislation could pass in both the House and Senate, even with the Senate’s 60-vote threshold, a bar not easily achieved on other issues.

Here are the six areas of reform — and the reasons they have a viable path to becoming law.

First, we need to reform the grand jury process and rein in prosecutorial overreach. As Judge Kozinski has advocated, lawmakers should require open file discovery, so prosecutors hand over all evidence favorable to an accused person, and also establish truly independent prosecutorial review units to investigate abuses....

Second, we must protect every citizens’ Sixth Amendment rights.  When it comes to federal cases, Congress should ensure that all individuals — regardless of income level – have an adequate chance to retain counsel before they appear in court.  It should also explore the model that some states have moved to, which allows defendants to choose a private lawyer from a list of options, rather than being appointed a lawyer who may not offer a competent defense....

Third, the punishment must fit the crime. Congress should reform mandatory minimums that don’t make sense and increase the use of “safety valves,” which allow judges to use their discretion for non-violent offenses if the offender meets certain requirements. These reforms are particularly important for low-level and non-violent offenders (mostly involving drug crimes), who too often languish in prison for years or even decades at a time at great cost to their families and our society at large.....

Fourth, prisons should leave individuals better off than when they came in. Prison rehabilitation programs have proven to reduce the chance of re-offense and save taxpayer dollars....

Fifth, Congress should give worthy individuals a chance to rejoin society and find fulfillment in their lives.  Lawmakers could start by “banning the box” from federal employment applications so that individuals with a record can be considered for government jobs.  Congress, however, should not mandate that companies “ban the box,” but should allow them to voluntarily do so.  Congress should also clear the record of qualifying youth and non-violent federal offenders; limit solitary confinement for juveniles; and establish effective rehab, educational, and vocational programs so that every individual leaves prison a better person than when they came....

Finally, Congress needs to dramatically scale back the federal criminal code and ensure that all criminal laws have adequate criminal intent, also known as “mens rea.”  The criminal code is a stunning 27,000 pages and comprises an estimated 4,500-6,000 criminal laws — and that doesn’t even include the thousands of additional federal regulations that impose criminal punishments. Many penalize people who had no idea they were committing a crime — missing a basic historical requirement that once existed in the criminal law to protect people from being unfairly prosecuted....

Any one of these reforms would improve our federal justice system — and have a profound effect on our society.  Taken together, they will make communities safer, support our brave law enforcement officers, save taxpayer dollars, and empower individuals in need of a second chance.  That’s precisely why Republicans and Democrats alike will have a difficult time answering to their constituents if they resist such reforms.  Doing so would be a clear political move that overlooks the millions of Americans who would be better off as a result of this bipartisan achievement.

If President-elect Trump and the GOP Congress take up criminal justice reform, it will be a sure sign that they are willing to look beyond party lines in order to improve people’s lives.  That would be good start to putting individuals’ safety and wellbeing ahead of partisan politics.

As the title of this post suggests, I think this piece's accounting of six areas in need of reform would provide a fantastic guide for questions for Senator Jeff Sessions during his hearings to serve as Attorney General. These questions can be softball (e.g., do you believe prison rehabilitation programs can be valuable?) or tough (e.g., do you think there should be more means for federal inmates to earn sentence reduction for participating in prison rehabilitation programs). And I welcome readers to use the comment to make more suggestions for additional soft or tough questions on these or other fronts.

Critically, and as I hope to outline more fully in a post over the weekend, I feel very strongly that those Senators who support federal criminal justice reforms ought to use the Sessions' confirmation hearing to do much more that just simply attack the Senator for long-ago acts or statements claimed to be evidence of racism or insensitivity.  Instead, by crafting astute questions concerning specific area of the federal criminal justice system in need of reform, members of the Judiciary Committee could and should be able to get Sessions to express support for — or at least a lack of opposition to — many of the bipartisan reforms discussed above and widely embraced inside the Beltway in recent years.

January 6, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Wednesday, January 04, 2017

GOP Senate Judiciary Chair Chuck Grassley says federal sentencing reform a priority after Trump nominations completed

This lengthy new Politico article, headlined in full "Senators plan to revive sentencing reform push: Senate Judiciary Chairman Chuck Grassley says he's not done yet pressing a cause with broad bipartisan support," brings some welcome new year good news for advocates of federal sentencing reform.  Here are the details, with a couple of lines emphasized for subsequent commentary:

Criminal justice reform — the great bipartisan hope of 2016 that ended in disappointment — may not be dead just yet. Senate Judiciary Committee Chuck Grassley (R-Iowa) plans to take up a bill to revamp U.S. sentencing laws and reform prisons soon after his panel clears the high-profile nominations from Donald Trump. A similar measure passed his committee overwhelmingly last year before stalling out in the face of opposition from law-and-order conservatives.

But Grassley told POLITICO he will soon try again. "The committee will begin the year working through the attorney general and Supreme Court nominees, but criminal justice reform will be one of the legislative bills I plan to bring up early on,” he said in a statement. “It cleared the committee with a broad bipartisan majority in the last Congress, and I don't expect that to change.”

The chief authors of the criminal justice overhaul, led by Grassley and Senate Minority Whip Dick Durbin (D-Ill.), will continue to try to drum up more support among senators, while “educating” the Trump administration about their bill’s merits, Grassley said.  The legislation isn’t expected to be substantially different than last year’s version.

Criminal justice reform could’ve been one of the bright, bipartisan spots in an otherwise contentious election year. But despite support from President Barack Obama, powerful congressional Republicans, and a sprawling network of groups from the left and right, the legislation never made it to the floor.  That was partly due to the determined efforts of law-and-order conservatives to steamroll it — and there's little to suggest that if the legislation heads to the Senate floor, that dynamic would change.

Nevertheless, Durbin approached Grassley after the election and pressed the chairman about whether the duo should make another run at it this year, Durbin recalled in a recent phone interview. Grassley was in. And once the chairman tees up the bill this year in his committee, its supporters expect a bipartisan vote similar to the 15-5 tally it received in October 2015.

Durbin and Grassley’s aides have been discussing a strategy to advance the bill in 2017. Aiding their cause is the fact that three opponents — GOP Sens. David Vitter of Louisiana, Jeff Sessions of Alabama and David Perdue of Georgia — are leaving the committee this year, stirring hope that the vote count in favor of the measure could be higher. Vitter no longer serves in the Senate, Sessions is expected to be confirmed as attorney general and Perdue is shifting committees. Replacing them on the influential panel are Sens. Ben Sasse of Nebraska, Mike Crapo of Idaho and John Kennedy of Louisiana. “I think the committee will be just as strong. It may be stronger,” Durbin said. “When you have people like Grassley and Durbin and [Senate Majority Whip John] Cornyn and [Sen. Patrick] Leahy for goodness sakes … it ought to be enough for us.”...

Senate Majority Leader Mitch McConnell (R-Ky.) is rarely eager to take up policy fights that divide his conference — and Democrats point a finger at him as a prime reason why criminal justice reform stalled last year. “The problem we ran into is Sen. McConnell, who didn’t want to call the bill to the floor. He was concerned about the impact on the election and also that the House wasn’t going to take it up,” Durbin said. The question remains going forward, he added, "whether McConnell will give us a chance.” McConnell aide Don Stewart responded that the majority leader spoke several times about the issue in 2016 and “doesn’t need Sen. Durbin to be his spokesman.”

The president-elect ran on a law-and-order platform, but Trump doesn't appear to have weighed in on the Senate measure during his campaign. Another wildcard factor is Sessions, Trump’s pick to become the attorney general.  As a senior member of the Senate Judiciary Committee, he was a fervent opponent of the sentencing overhaul and one of the five votes against it.

But Sen. Thom Tillis (R-N.C.), another supporter of the criminal justice reform effort, speculated that once Sessions becomes the attorney general, his chief objective will be on enforcing what Congress sends him — even if he disagrees with it — rather than slipping into the role of legislator and try to change the laws. “He’s going to be focused on being the nation’s top law enforcement official,” Tillis said. “I don’t necessarily see him weighing in heavily on public policy choices that President Trump makes.”

Durbin said he intends to press Sessions on his views of criminal justice reform and how he’ll handle the issue at the Justice Department when the two meet privately to discuss about his bid to become attorney general on Wednesday.  Though Sessions had wanted to meet earlier, Durbin said Senate Democrats decided as a caucus to not meet with any Cabinet selections until the new year. “I want to know after all of the speeches he gave on the floor against criminal justice reform, what we can expect of him as attorney general,” Durbin said. “I don’t know what he’ll say.”

Still, others speculate that after Washington endures partisan wars over repealing Obamacare and confirming polarizing presidential nominees, Trump will be looking for a bipartisan win. Criminal justice reform could deliver one. “I know we have enough votes to send this to the president’s desk,” Tillis said. Stressing his desire to avoid legislative gridlock, Tillis added: “The election was not a Republican mandate. The election was a results mandate.”

This story is both encouraging and not all that surprising given the events of the last few years surrounding the proposal, debates and modifications of the Sentencing Reform and Corrections Act. The two lines I have emphasized reflect two coming developments that I think are crucial to this developing 2017 federal sentencing reform story:

1. I think it would be a policy mistake, despite the 2015 Judiciary Committee success of the SRCA, for that bill to serve the essential template for new Senate reform legislation. In my view, there are a host of ways a new and improved federal sentencing reform bill could and should be much more streamlined AND I think a new bill could and should garner even more bipartisan support if it also were to include some modest (or even aggressive) mens rea reforms.

2. I think Senators Sessions and Durbin are really critical players here, especially over the next few weeks, as Sessions develops and articulates his priorities as Attorney General and as Durbin seeks to explain why the horrific uptick in violent crime in his own Chicago (Which Prez-Elect Trump has been tweeting about) should not be a reason to tap the brakes on any further federal sentencing reforms.

January 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, December 21, 2016

"The Obama Legacy: Chipping Away at Mass Incarceration" ... but ...

The quoted portion of the title of this post is the headline of this notable new commentary authored by Marc Mauer.  Perhaps appropriately given the "Obama Legacy" label, the piece is focused mostly on the federal sentencing system.  And, in my view inappropriately, the piece gives Prez Obama a little too much credit for some of what I consider to be his "day late and dollar short" work in this arena.  With that set up, here are excerpts (with two lines emphasized that really rankles me, as I will explain after the excerpt):

As President Obama prepares to leave office, the United States still holds the dubious honor of having the highest incarceration rate in the world, with 2.2 million people behind bars. In order to assess his impact on the criminal justice system, it’s necessary to examine the policy shifts that got us here in the first place.

In 1980 there were 24,000 people in the federal prison system, about 25% of whom were serving time for a drug offense. By the time Obama was elected in 2008, that number had ballooned to 201,000 people, nearly half of whom were locked up for a drug offense.

There are two key reasons for the population explosion — both rooted in the war on drugs.  First, President Reagan encouraged federal law enforcement agencies and prosecutors to emphasize drug arrests. Second, Congress adopted mandatory sentencing policies — frequently applied to drug offenses — that established a “one size fits all” approach to sentencing. Federal judges were obligated to impose prison terms of 5, 10, 20 years — or even life — largely based on the quantity of drugs involved. They were not permitted to take any individual factors, such as histories of abuse or parenting responsibilities, into account to mitigate those sentences. The racial disparities from these sentencing policies were particularly extreme.

The most egregious of these policies were tied to crack cocaine offenses.  Someone possessing as little as five grams of the drug (about the weight of a sugar packet) would face a minimum of five years in prison.  That threshold was significantly harsher than the mandatory penalty for powder cocaine, which required a sale of 500 grams of the drug (a little over a pound) to receive the same penalty.  Since 80% of crack cocaine prosecutions were brought against African Americans, the racial disparities from these sentencing policies were particularly extreme.

Momentum for reforming the crack cocaine mandatory minimum laws predated the Obama administration, and had growing bipartisan support when the President took office.  The President signed the Fair Sentencing Act into law in 2010, reducing sentencing severity in a substantial number of crack cases.  Then in 2013, Attorney General Eric Holder issued a memorandum to federal prosecutors calling on them to avoid seeking mandatory prison terms in low-level drug cases, which has cut the number of cases with such charges by 25%.

While the changes in sentencing laws have helped to reduce the federal prison population, the highest profile of Obama’s reforms is his use of executive clemency to reduce excessively harsh drug sentences.  That is a story of both politics and policy.  During Obama’s first term he used his clemency power far less than his predecessors — a pattern that was sharply criticized by many reform groups and editorial  boards. But after launching a “clemency initiative” in 2014, the President has commuted the drug sentences of more than 1,100 individuals (with promises of substantially more by the time he leaves office).  Notably, in about a third of these cases, the individuals had been sentenced to life without parole due to mandatory sentencing policies....

Perhaps the most significant aspect of President Obama’s work in regard to criminal justice reform has been his role in changing the way we talk about the issue. After a disappointing first term in which these issues received only modest attention, Obama’s last years in office framed criminal justice reform as a top priority. Among a series of high-profile events during his second term was the President’s address on mass incarceration at the NAACP national convention, at which he concluded that “mass incarceration makes our country worse off.”

Mass incarceration did not come about because there is a shortage of ideas for better approaches to public safety — it was the result of a toxic political environment where legislators favored political soundbites over evidence. By using the bully pulpit to frame justice reform as a major issue, Obama provided some coverage for mainstream legislators to support sound policy options.

It is difficult to be optimistic that the incoming administration will look favorably on criminal justice reform.  Leading Republicans, such as House Speaker Paul Ryan, may be persuasive in making the conservative argument for reform.  But President-elect Trump’s “tough on crime” rhetoric, which paints many incarcerated people as “bad dudes,” suggests progress at the federal level will be a challenge.  Realistically, opportunities for justice reform are more likely at the state level. Many local officials are already convinced of the need for sentencing reform and reentry initiatives, and they may be less influenced by the political climate in Washington. If so, such changes at the local level may ultimately gain traction in a Trump White House as well.

1.  The first line emphasized above makes me extra crazy because it falsely portrays Prez Obama as a bold leader who used the bully pulpit in order to provide "coverage for mainstream legislators to support sound policy options."  This could not be more backwards: Prez Obama was a timid and disappointing follower here, as his July 2015 NAACP speech about the need for reform came only AFTER "mainstream" politicians ranging from Rand Paul to Corey Booker, from Ted Cruz to Patrick Leahy, from Rick Perry to Deval Patrick, from Bobby Jindal to Jim Webb, from Chuck Grassley to Dick Durbin, from Jim Sensenbrenner to Bobby Scott, from Raul Labrador to Elijah Cummings, from Judy Chu to Mia Love, from Newt Gingrich to even Chris Christie had all spoken in some significant ways about the need for significant criminal justice reform and especially sentencing reform (and I am sure I am leaving out many others).

2.  The second line emphasized above makes me crazy for more "inside baseball" reasons: given that this commentary makes much of the "egregious" crack/powder cocaine sentencing policies that were only partially fixed by the FSA, the commentary ought to take a moment to note that Prez-Elect Trump has nominated as Attorney General the most prominent and vocal GOP Senator who was complaining loudly about the 100-1 crack/powder laws before doing so was popular or comment.  As noted in this post and recently reported by the Wall Street Journal, " Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime."  

I really respect so much of the work Marc Mauer does in his commentary and through The Sentencing Project, but these troublesome statements reflect what I am seeing as the worst tendencies of the "commentariat class" since the election.  Specifically, even though Prez Obama's record on sentencing reform is relatively unimpressive (especially as compared to his record on lots of other issues), many on the left seem eager to assert that Prez Obama really achieved a lot in this arena and then go on to gnash teeth about reform momentum being halted now that there is a new sheriff in town.  This narrative entirely misses, in my opinion, not only (a) the reality that Prez Obama himself retarded reform momentum in many ways (e.g., by getting such a late start on clemency, by resisting mens rea reforms that could have been included in bipartisan sentencing reform bills), but also (b) the (significant?) possibility that many GOP leaders in Congress who have actively promoted and worked hard on federal sentencing reform bills will keep up that work in the years to come.

December 21, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17)

Friday, December 16, 2016

"Why Congress May Bring Criminal Justice Reform Back to Life"

The title of this post is the headline of this effective new Marshall Project analysis by Bill Keller, which carries the subheadline " Four reasons a bipartisan bill has a better chance than you think." Here are excerpts:

It’s no wonder criminal-justice reformers woke up from Election Day 2016 with a sense of existential gloom. Given candidate Donald J. Trump’s law-and-order bluster, his dystopian portrayal of rising crime and an ostensible war on the police, and a posse of advisers who think the main problem with incarceration is that we don’t do enough of it, the idea that justice reformers have anything to look forward to is at best counterintuitive.

It is reasonable to expect that President Trump and his choice for attorney general, Jeff Sessions, will dismantle at least some of what their predecessors leave behind. Based on what they have said, the Trump-Sessions Justice Department may well roll back federal oversight of troubled police forces, escalate the war on drugs, enlarge the share of the corrections business that goes to private companies, accelerate deportations of undocumented immigrants and use the threat of financial sanctions to challenge so-called sanctuary cities....

But those inclined to look for silver linings may find one on Capitol Hill.... I can think of four reasons the prospects of federal reform are actually better in 2017.

First, it is not an election year. Nothing makes members of Congress squirm like the specter of attack ads portraying them as coddlers of criminals. There is reason to think those Willie Horton-style gotchas have lost some of their potency, but the prospect tends to make members of Congress more risk-averse in even-numbered years. And the lobbying alliance in favor of reform has grown and diversified and offers supportive candidates some political cover. It now includes significant numbers of police executives and prosecutors, who say our tendency to over-criminalize and over-punish wastes money and human potential without making us safer.

Second, President Obama will be gone. Some of the resistance to this year’s sentencing bill was a reluctance to give the president a parting victory. His heartfelt embrace of criminal-justice reform in the final years of his presidency was — through no fault of his own — the kiss of death in a hostile Congress.

Third, at least one of the hard-core Senate opponents of sentencing reform will no longer be there. That would be Jeff Sessions, the Republican senator from Alabama. True, as attorney general he will be in a position to encourage a presidential veto. But he will not be joining the obstructionists who this year never let a bill come to a vote at all. The chairman of the Senate Judiciary Committee, Charles Grassley, said in October that if his party leadership had brought the bill to the floor, it would have garnered 65 to 70 votes — enough to override a veto.

And fourth, the Republican leadership will be looking very hard for bipartisan successes to demonstrate that Washington is no longer in a state of ideological paralysis. On the short list of things Congress could do to reassure voters that government is back in business, criminal justice ranks near the top. The subject attracts libertarians who have come to see the machinery of criminal justice as another example of overbearing government, conservative Christians who see the criminal justice morass as dehumanizing, fiscal conservatives who have noticed that incarceration is expensive, and policy wonks who see a “corrections” system that largely fails to correct.

December 16, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)