Thursday, December 05, 2013
Remarkable new HRW report details massive "trial penalty" due to mandatory minimums in federal system
As highlighted in this press release discussing a new important report, in federal courts "drug offenders convicted after trial receive sentences on average three times as long as those who accept a plea bargain, according to new statistics developed by Human Rights Watch." Here is more from the press release about the report and its findings:
The 126-page report, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty,” details how prosecutors throughout the United States extract guilty pleas from federal drug defendants by charging or threatening to charge them with offenses carrying harsh mandatory sentences and by seeking additional mandatory increases to those sentences. Prosecutors offer defendants a much lower sentence in exchange for pleading guilty. Since drug defendants rarely prevail at trial, it is not surprising that 97 percent of them decide to plead guilty.
“Prosecutors give drug defendants a so-called choice -- in the most egregious cases, the choice can be to plead guilty to 10 years, or risk life without parole by going to trial,” said Jamie Fellnew, senior advisor to the US Program at Human Rights Watch and author of the report. “Prosecutors make offers few drug defendants can refuse. This is coercion pure and simple.”...In one of hundreds of cases Human Rights Watch reviewed, Sandra Avery, a small-time drug dealer, rejected a plea of 10 years for possessing 50 grams of crack cocaine with intent to deliver. The prosecutor triggered a sentencing enhancement based on her prior convictions for simple drug possession, and she was sentenced to life without parole.
In addition to case reviews, the report is also based on numerous interviews with federal prosecutors, defense attorneys, and judges. It also includes new statistics developed by Human Rights Watch that provide the most recent and detailed measure of what the report calls the “trial penalty” -- the difference in sentences for drug defendants who pled guilty compared with those for defendants convicted after trial. The trial penalty is, essentially, the price prosecutors make defendants pay for exercising their right to trial. “Going to trial is a right, not a crime,” Fellner said. “But defendants are punished with longer sentences for exercising that right.”
Prosecutors are able to impose the trial penalty because judges have been reduced to virtual bystanders in cases involving mandatory sentences. When prosecutors choose to pursue mandatory penalties and the defendant is convicted, judges must impose the sentences. They cannot exercise their traditional role of tailoring sentences to each defendant’s conduct and culpability and of making sentences no longer than necessary to serve the purposes of punishment....The new statistics Human Rights Watch developed for the report, based on raw federal sentencing data for 2012, include the following:
• The average sentence for federal drug offenders who pled guilty was five years, four months; for those convicted after trial the average sentence was sixteen years.
• For drug defendants convicted of offenses carrying mandatory minimum sentences, those who pled guilty had an average sentence of 82.5 months compared with 215 months for those convicted after trial, a difference of 11 years.
• Among drug defendants with prior felony convictions, the odds of receiving a sentencing enhancement based on those convictions was 8.4 times greater for those who went to trial than for those who pled guilty.
• Among drug defendants with a gun involved in their offense, the odds of receiving the statutory gun sentencing enhancement were 2.5 times greater for those who went to trial than for those who pled guilty.
Wednesday, December 04, 2013
"The wrong people decide who goes to prison"
The title of this post is the headline of this notable new CNN commentary authored by US DIstrict Judge Mark Bennett and Prof. Mark Osler. Here are some of the on-the-mark views coming today from these Marks:
Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law. Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors. After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.
This change ignored the fact that federal judges are chosen from the ranks of experienced members of the bar precisely because their long legal careers have shown the ability to exercise discretion. It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.
The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.
After nearly 30 years, we know how Congress' experiment turned out, and the results are not good. Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way. Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities....
Let's look at just one way that prosecutors exercise this discretion: the enhancement of narcotics sentences under 21 U.S.C. 851, or proceedings to establish prior convictions. These enhancements, at a minimum, double a drug defendant's mandatory minimum sentence and may raise the maximum possible sentence.... [O]ur analysis of the way these enhancements have been used reveals a deeply disturbing dirty little secret of federal sentencing: the stunningly arbitrary application of these enhancements by prosecutors within the Department of Justice.
The numbers tell the story. Our home states are fairly typical in their wild disparities: A federal defendant in Iowa is more than 1,056% likely to receive a 851 enhancement than one in Minnesota. Nor are these Midwestern neighbors an anomaly. In the Northern District of Florida, prosecutors apply the enhancement 87% of the time, but in the bordering Middle District of Georgia, they are used in just 2% of relevant cases.
There is also breathtaking disparity within federal district within the same state (PDF). For example, in Florida, prosecutors in the Northern District apply the enhancement 87% of the time, but in the Southern District, it is used only 14% of the time. In the Eastern District of Tennessee, offenders are 3,994% more likely to receive an enhancement than in the Western District of Tennessee. In the Eastern District of Pennsylvania, a defendant is 2,257% more likely to receive the enhancement than in the Middle District of Pennsylvania. The disparities are startling.
In August, Attorney General Eric Holder announced steps to establish more discipline within the Department of Justice in how this discretion is used. It is a promising step but only that: a step. It is unclear how firm the attorney general is willing to be in tracking and constraining the use of this kind of discretion by prosecutors in different areas.
The larger lesson, and the more important one, is that after nearly 30 years, we still have gross and tragic disparities in federal sentencing, with the added burden of too many people put in prison, caused by mandatory sentencing and harsh sentencing guidelines. Tentative steps at reform will not be enough. It is time for a radical rethinking of the project as a whole and a recognition that this grand experiment in shifting discretion to prosecutors has failed.
December 4, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack
Tuesday, December 03, 2013
In lengthy split opinions, en banc Sixth Circuit rejects all efforts to give any relief to pre-FSA crack defendants still serving mandatory minimums
The Sixth Circuit this morning has handed down a lengthy set of opinion in the closely-watched Blewett litigation. All the opinions, which can be accessed here, run a full 79 pages. It appears the vote to reject providing any relief to pre-FSA defendants still serving now-repealed mandatory minimums was 10-7, and here is the complicated accounting of the votes and opinions:
SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C. J., BOGGS, GILMAN, GIBBONS, COOK, McKEAGUE, GRIFFIN and KETHLEGE, JJ., joined, and MOORE, J., join ed in the result. MOORE, J. (pp. 21–33), delivered a separate opinion concurring in the judgment. MERRITT, J. (pp. 34–37), delivered a separate dissenting opinion, in which DONALD J., joined. COLE, J. (pp. 38–43), delivered a separate dissenting opinion. CLAY, J. (pp. 44–58), delivered a separate dissenting opinion, in which DONALD, J., joined. ROGERS, J. (pp. 59–67), delivered a separate dissenting opinion, in which WHITE and STRANCH, JJ., joined, MERRITT, J., joined in part, and COLE, J., joined except for the last paragraph. WHITE, J. (pp. 68–79), delivered a separate dissenting opinion.
I am not at all surpsised by the line-up here, which notably seems to go down party lines save for Clinton appointees Judges Gilam and Moore with the Republican-appointee-heavy marjority, and Bush appointees Judges Rogers and White voting with the Democratic-heavy dissenting minority. Here is how the opinion of the Sixth Circuit majority ends:
At the end of the day, this is a case about who, not what — about who has authority to lower the Blewetts’ sentences, not what should be done with that authority. In holding that the courts lack authority to give the Blewetts a sentence reduction, we do not mean to discount the policy arguments for granting that reduction. Although the various opinions in this case draw different conclusions about the law, they all agree that Congress should think seriously about making the new minimums retroactive. Indeed, the Fair Sentencing Act, prospective though it is, dignifies much of what the Blewetts are saying as a matter of legislative reform and may well be a powerful ground for seeking relief from Congress. Yet the language of the relevant statutes (the Fair Sentencing Act, § 109 and § 3582(c)(2)) and the language of the relevant decisions (Dorsey, Davis and Harmelin) leave us no room to grant that relief here. Any request for a sentence reduction must be addressed to a higher tribunal (the Supreme Court) or to a different forum altogether (the Congress and the President).
Especially because I have a very busy teaching week, I am unlikely to find the time to read and assess these opinions in full for a little while. Moreover, because I have a much more robust view of the limits of the Eighth Amendment than most members of the federal judiciary, I suspect I will not be moved by how the majority disposed of this matter with reference to Harmelin and other cases which do not involve the sui generis reality of sustaining lengthy federal prison terms that have been resoundly and repeatedly rejected and disavowed by all other branches of the federal government and by all the states in the Union as well.
December 3, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Calling out DOJ for talking the talk, but not walking the walk, on mandatory minimums
Andrew Cohen has this lengthy and effective new piece via The Atlantic highlighting a case in the SCOTUS cert pool that highlights the ways federal prosecutors are able to use mandatory minimums to force judges to impose lengthy prison terms for drug offenders. The piece's headline and sub-head highlight its themes: "Attorney General Mean What He Says About Sentencing Reform?: Eric Holder has spent a great deal of time and energy lately advocating for reforms to mandatory minimum sentences. So why is the federal government trying to stiff Clarvee Gomez in court?". And here is how piece starts and concludes:
When the justices of the United States Supreme Court confer Friday morning to consider new cases they will have the opportunity to accept for review a dispute that tests not just the meaning of their own recent Sixth Amendment precedent but the viability of a major new policy initiative implemented this summer by the Justice Department to bring more fairness to federal sentencing while reducing the terrible costs of prison overcrowding.
In Gomez v. United States, a Massachusetts case, the justices have been asked to determine whether they meant what they wrote about juries and drug sentences in Alleyne v. United States, decided just this past June, and at the same time whether Attorney General Eric Holder meant what he said, in August, when he promised to curb the ways in which his federal prosecutors abuse "mandatory minimum" sentences in drug cases to obtain guilty pleas (or higher sentences).
The justices should accept this case for review. And the Court should affirm the just principle that a man cannot constitutionally be sentenced based upon charges that are not brought or upon facts a jury does not even hear. But even if the justices aren't willing to muster up that level of indignation, they ought to at least take the opportunity to call out federal prosecutors for saying one thing in front of the microphones and another in court papers....
The government's positions in this case — both the tactics employed by Gomez's prosecutors and the arguments made now by federal attorneys — are utterly inconsistent with the much-publicized policies the Attorney General himself promulgated this summer....
Even after the Court's mandate in Alleyne, even after the Attorney General's pointed memorandum, even after all the public speeches about sentencing reform, federal attorneys still are trying to argue that the result in the Gomez case is both fair and constitutional. It is neither and the Supreme Court ought to say so — or at least expose the incoherence and hypocrisy of the government's position. If true sentencing reform is going to come it's going to come one case at a time — and this is as good a case as any to start.
Friday, November 29, 2013
Louisiana Supreme Court at crosshairs of strong gun rights and tough drug laws
As reported in this effective local article, headlined "Court considering second major gun law: La. drug-gun statute latest to face review," the top court in the Pelican State has a lot of interesting legal issues to sort out in the wake of state voters having last year approved by a gun-rights constitutional amendment backed by the National Rifle Association. Here are the particulars:
Amid the growing confusion over whether Louisiana’s litany of gun crimes violates its residents’ turbocharged right to bear arms, the state Supreme Court has decided it will try to settle one of the most consequential questions: Does it remain constitutional to charge a person with a high-grade felony for having a gun at the same time as illegal drugs, no matter what kind of drugs or how much?
Rico Webb, a 22-year-old caught in a car with one marijuana cigar and a gun, points to a state constitutional amendment passed last year, applauded by conservatives and the National Rifle Association, that for the first time in American history declared gun ownership a fundamental right in Louisiana, subject to the same level of judicial scrutiny as free speech and voter equality.
The amendment provoked an avalanche of legal challenges to the state’s major gun-crime laws. At least three judges have declared various criminal statutes unconstitutional. The Louisiana Supreme Court is tasked with sorting out the mess.
The high court already is considering the statute that forbids certain felons from possessing firearms. It heard oral arguments last month, and its decision is pending. In the meantime, the court agreed on Friday to take up Webb’s challenge to the law that punishes the possession of guns and drugs with five to 10 years in prison without the possibility of parole....The constitutional amendment sailed through the Legislature last year and received overwhelming support from voters at the ballot box. Its proponents, both inside and outside the Legislature, defended the measure as a guarantee of freedom if federal gun protections were to somehow fall.
But critics described it as an unnecessary law that solved no problem. Louisiana already had among the most liberal gun laws in the nation. All the amendment has accomplished, they say, is widespread constitutional chaos that could endanger public safety and waste hundreds of courthouse hours on the taxpayers’ dime.
The measure was pitched by conservative legislators as a state equivalent to the Second Amendment. But in practice, it goes far past the protections offered by the U.S. Constitution. The amendment erased language in the law that allowed the Legislature to prohibit carrying a concealed weapon and specified that, for the first time anywhere in the nation, gun laws would be subject to a “strict scrutiny” test, the highest level of judicial review.
“What the Legislature did is it took discretion away from itself,” said Raymond Diamond, a LSU law professor and Second Amendment scholar. “This pro-gun Legislature voted to bind itself, and future Legislatures that might not be so pro-gun, from undertaking gun control. It has similarly binded local communities in ways that right now we really don’t understand.” He has described the amendment as “a can of worms.”
It pushed the Louisiana Supreme Court to become the first in America to analyze criminal gun statutes using a strict scrutiny test. That test presumes that every person has the right to be armed. Any law that seeks to infringe that right must pass a grueling legal test that kills more than two-third of the laws that come up against it. The state must show that the law serves a compelling government interest, and that it is so narrowly defined that there is no less restrictive way of achieving that interest.
The arguments against the current statutes are similar, in that they equally dole out “heavy-handed penalties” to vast groups of people. The drug statute treats people caught with small amounts of marijuana the same as those with large amounts of more serious drugs. The felon-with-a-gun statute equates burglars with murderers. It includes a list of 150 felony offenses, characterized as drug or violence crimes, and says that anyone convicted of any of them is barred from possessing a firearm for 10 years after being released from prison.
The state supports that law by arguing that those with a demonstrated capacity to break the law are more dangerous when armed. Its position on the drugs-and-gun statute is the same: Drugs beget violence and guns make volatile situations deadly.
But Webb’s attorney, New Orleans public defender Colin Reingold, argues that the state cannot prove, under a strict-scrutiny test, that a single marijuana blunt makes him more dangerous when armed than anyone else, particularly since the possession of alcohol and guns is not equally restricted. “The true danger of a firearm comes not from the manner in which its owner keeps or bears it, but rather from how the citizen uses the weapon,” Reingold wrote in his appeal to the Supreme Court.
Webb, who has no criminal record, was arrested on Sept. 10, 2012, when police pulled over his girlfriend for having a broken taillight. He confessed to police that he had the blunt in his backpack and said the gun on the floorboard was his, too. The gun was legal and the marijuana alone would have amounted to a misdemeanor, prosecuted in Municipal Court and typically punished with a fine and probation. But combined, the gun and pot became a felony with a minimum sentence of five years and a maximum of 10 years, without the possibility of parole.
Webb appealed his charge to the Louisiana Supreme Court, which announced on Friday it would hear the case. Over the years, the courts will have to sort out which of the 80 other gun crimes on Louisiana law books remain constitutional under the new amendment.
The state has become an experiment. “This is an exciting time because there is some risk that some of the laws will be declared unconstitutional,” Diamond said. “Everybody’s very interested to see what the court’s going to do with it.”
Various prior Second Amendment and gun policy posts:
- Big (ugly?) NY Times report on felons getting back gun rights
- "Should pardoned felons have gun rights?"
- North Carolina Supreme Court finds state constitutional right for some felons to bear arms
- Notable new Alaska appellate decision on denying gun rights to non-violent felons
- "Convicted Felon Sues State Over Right To Bear Arms"
- Fourth Circuit suggests people must be "responsible" to get full Second Amendment protection
- Might restoration of felon gun rights actually reduce recidivism?
- Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
- "Why Can’t Martha Stewart Have a Gun?"
- Should NRA care more about gun rights for non-violent felons or those accused of domestic violence?
- "Is the Supreme Court only willing to work at the fringes of the Second Amendment?"
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
Friday, November 22, 2013
Two notable Sixth Circuit rejections of notable sentencing appeals by notable defendants
While I was distracted by teaching responsibilities, the Sixth Circuit yesterday handed down two notable (and lengthy) opinions rejecting two distinct defendants' intriguing claims concerning two distinct sentencing outcomes. The first paragraphs of each opinion highlights why both cases are worthy of full reads:
US v. Volkman, No. 12-3212 (6th Cir. Nov. 21, 2013) (available here):
When a doctor first enters the practice of medicine, he or she swears to abide by a prime directive of the profession: “First, do no harm.” Paul Volkman breached this sacrosanct tenet when he prescribed narcotics to addicts and individuals with physical, mental, and psychological frailties. A federal jury looked at Volkman’s actions and found him guilty of breaking several laws, chief among them the law prohibiting the unlawful distribution of controlled substances. After receiving the jury’s verdict, the district court sentenced Volkman to four consecutive terms of life imprisonment, to be served concurrently with a number of less-lengthy terms.
Volkman now appeals, contending that several errors arose throughout the course of his trial and sentencing. We disagree, and we AFFIRM Volkman’s convictions and sentence.
US v. Marshall, No. 12-3805 (6th Cir. Nov. 21, 2013) (available here):
Dylan Marshall pled guilty to receiving child pornography over a period of 5 years, from the time he was 15 un til he was 20. The district court varied downward from the guideline range and sentenced him to 5 years in prison — the mandatory minimum sentence for the offense — expressing its concerns with the perceived harshness of that sentence as it did so. Marshall has a rare physiological condition called Human Growth Hormone Deficiency, which he believes entitles him to the Eighth Amendment protections accorded to juveniles. But despite his condition, Marshall was an adult at the time of the offense. We therefore affirm his sentence.
November 22, 2013 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Sunday, November 17, 2013
"Sentenced to a Slow Death"
The title of this post is the headline of this new New York Times editorial discussing this week's noteworthy new ACLU report on the thousands of persons serving LWOP sentences for non-violent offenses in the United States (first discussed here). Here are excerpts:
If this were happening in any other country, Americans would be aghast. A sentence of life in prison, without the possibility of parole, for trying to sell $10 of marijuana to an undercover officer? For sharing LSD at a Grateful Dead concert? For siphoning gas from a truck? The punishment is so extreme, so irrational, so wildly disproportionate to the crime that it defies explanation.
And yet this is happening every day in federal and state courts across the United States. Judges, bound by mandatory sentencing laws that they openly denounce, are sending people away for the rest of their lives for committing nonviolent drug and property crimes. In nearly 20 percent of cases, it was the person’s first offense.
As of 2012, there were 3,278 prisoners serving sentences of life without parole for such crimes, according to an extensive and astonishing report issued Wednesday by the American Civil Liberties Union. And that number is conservative. It doesn’t include inmates serving sentences of, say, 350 years for a series of nonviolent drug sales. Nor does it include those in prison for crimes legally classified as “violent” even though they did not involve actual violence, like failing to report to a halfway house or trying to steal an unoccupied car....
As in the rest of the penal system, the racial disparity is vast: in the federal courts, blacks are 20 times more likely than whites to be sentenced to life without parole for nonviolent crimes. The report estimates that the cost of imprisoning just these 3,278 people for life instead of a more proportionate length of time is $1.78 billion....
Several states are reforming sentencing laws to curb the mass incarceration binge. And Congress is considering at least two bipartisan bills that would partly restore to judges the power to issue appropriate sentences, unbound by mandatory minimums. These are positive steps, but they do not go far enough. As the report recommends, federal and state legislators should ban sentences of life without parole for nonviolent crimes, both for those already serving these sentences and in future cases. President Obama and state governors should also use executive clemency to commute existing sentences. Just one-fifth of all countries allow a sentence of life without parole, and most of those reserve it for murder or repeated violent crimes. If the United States is to call itself a civilized nation, it must end this cruel and ineffective practice.
Recent related posts:
- New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms
- New York Times op-ed asks "Serving Life for This?"
Wednesday, November 13, 2013
Fourth Circuit rejects effort to use Miller to assail ACCA enhancements based on juve priors
In a not surprising but still noteworthy panel opinion, the Fourth Circuit today in US v. Hunter, No. 12-5035 (4th Cir. Nov. 13, 2013) (available here), rejected a federal defendant's effort to use the Supreme Court's Miller ruling to contest a lengthy mandatory minimum sentence for an adult crime based on prior offenses committed when the defendant was a juvenile. Here is how Hunter begins:
In Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the Supreme Court announced that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Relying on Miller, Defendant Jimmy Eliab Hunter appeals from his sentence for being a felon in possession of a firearm, asserting that the district court erred in sentencing him as an armed career criminal based on violent felonies he committed as a juvenile. But unlike the juveniles in Miller, Defendant’s sentence here punishes him for an offense he committed at the age of thirty-three, well past an age when “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences.” Id. at 2465. Thus, proportionality concerns expressed in Miller regarding youthful offenders are not implicated here. Finding Miller, Defendant’s sole basis for his Eighth Amendment challenge, inapplicable, we affirm.
New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms
The ACLU has released a huge new report giving focused attention to the thousands of prisoners serving life without parole sentences in the United States for nonviolent drug and property crimes. This massive new report, which can be accessed at this link, is titled "A Living Death: Life without Parole for Nonviolent Offenses." This related webpage highlights some specific defendants and cases with this introduction:
For 3,278 people, it was nonviolent offenses like stealing a $159 jacket or serving as a middleman in the sale of $10 of marijuana. An estimated 65% of them are Black. Many of them were struggling with mental illness, drug dependency or financial desperation when they committed their crimes. None of them will ever come home to their parents and children. And taxpayers are spending billions to keep them behind bars.
Here is an excerpt from the 200+ page report's executive summary:
Using data obtained from the Bureau of Prisons and state Departments of Corrections, the ACLU calculates that as of 2012, there were 3,278 prisoners serving LWOP for nonviolent drug and property crimes in the federal system and in nine states that provided such statistics (there may well be more such prisoners in other states). About 79 percent of these 3,278 prisoners are serving LWOP for nonviolent drug crimes. Nearly two-thirds of prisoners serving LWOP for nonviolent offenses nationwide are in the federal system; of these, 96 percent are serving LWOP for drug crimes. More than 18 percent of federal prisoners surveyed by the ACLU are serving LWOP for their first offenses. Of the states that sentence nonviolent offenders to LWOP, Louisiana, Florida, Alabama, Mississippi, South Carolina, and Oklahoma have the highest numbers of prisoners serving LWOP for nonviolent crimes, largely due to three-strikes and other kinds of habitual offender laws that mandate an LWOP sentence for the commission of a nonviolent crime. The overwhelming majority (83.4 percent) of the LWOP sentences for nonviolent crimes surveyed by the ACLU were mandatory. In these cases, the sentencing judges had no choice in sentencing due to laws requiring mandatory minimum periods of imprisonment, habitual offender laws, statutory penalty enhancements, or other sentencing rules that mandated LWOP. Prosecutors, on the other hand, have immense power over defendants’ fates: whether or not to charge a defendant with a sentencing enhancement triggering an LWOP sentence is within their discretion. In case after case reviewed by the ACLU, the sentencing judge said on the record that he or she opposed the mandatory LWOP sentence as too severe but had no discretion to take individual circumstances into account or override the prosecutor’s charging decision.
As striking as they are, the numbers documented in this report underrepresent the true number of people who will die in prison after being convicted of a nonviolent crime in this country. The thousands of people noted above do not include the substantial number of prisoners who will die behind bars after being convicted of a crime classified as “violent” (such as a conviction for assault after a bar fight), nor do the numbers include “de facto” LWOP sentences that exceed the convicted person’s natural lifespan, such as a sentence of 350 years for a series of nonviolent drug sales. Although less-violent and de facto LWOP cases fall outside of the scope of this report, they remain a troubling manifestation of extreme sentencing policies in this country.
November 13, 2013 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (16) | TrackBack
Monday, November 11, 2013
Two notable SCOTUS criminal law arguments (with federal mandatory minimums at issue)
The Supreme Court Justices could have perhaps benefited from this long weekend by hanging out with my terrific first-year Criminal Law students because they return to work on Tuesday to hear two interesting cases raising classic issues relating to the basic doctrines of substantive criminal law. thanks to Congress, though, these issue arise for SCOTUS with severe mandatory minimum sentencing terms hanging in the balance.
SCOTUSblog, of course, is the place to go for a quick primer on Burrage v. United States and Rosemond v. United States, and here are the links and introduction for the argument previews now posted there:
Law school hypos about criminal law mens rea by Rory Little
At 10:00 a.m. on Tuesday, November 12, the Court will consider a philosophical question that has troubled the criminal law for centuries: what mens rea (mental state) is required to prove “aiding and abetting” liability? The question in Rosemond v. United States arises under 18 U.S.C. § 924(c), the federal law that provides significant mandatory minimum imprisonment terms for carrying, using, brandishing, or discharging a firearm during and in relation to a narcotics offense. Arguing for petitioner Justus Rosemond, seeking to overturn his conviction, will be John P. Elwood, a former Assistant to the Solicitor General who is now a partner in the Washington, D.C., office of Vinson & Elkins. Arguing for the federal government will be Assistant to the Solicitor General John F. Bash.
Crime and death’s cause By Lyle Denniston
At 11 a.m. next Tuesday, the Supreme Court will hold one hour of oral argument on the proof that federal prosecutors must offer to get an enhanced prison sentence for a drug dealer when a customer who bought heroin died. Arguing for the convicted Iowa man in the case of Burrage v. United States will be Angela L. Campbell, of the Des Moines law firm of Dickey & Campbell. Arguing for the federal government will be Benjamin J. Horwich, an assistant to the Solicitor General.
Thursday, November 07, 2013
"Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing"The title of this post is the title of this notable new paper by Crystal Yang now available via SSRN. Here is the abstract:
The Federal Sentencing Guidelines were created to reduce unwarranted sentencing disparities among similar defendants. This paper explores the impact of increased judicial discretion on racial disparities in sentencing after the Guidelines were struck down in United States v. Booker (2005). Using data on the universe of federal defendants, I find that black defendants are sentenced to almost two months more in prison compared to their white counterparts after Booker, a 4% increase in average sentence length. To identify the sources of racial disparities, I construct a dataset linking judges to over 400,000 defendants. Exploiting the random assignment of cases to judges, I find that racial disparities are greater among judges appointed after Booker, suggesting acculturation to the Guidelines by judges with experience sentencing under mandatory regime. Prosecutors also respond to increased judicial discretion by charging black defendants with longer mandatory minimums.
I am always interested in sophisticated analyses of the post-Booker sentencing system, so I am looking forward to finding time to review this article closely. But, as with lots of "disparity" sentencing scholarship, I worry that this article is among those spending lots of time worrying about and trying to figure out whose sentences may be longer after Booker rather than worrying about and trying to figure out if all sentence remain way too long in the federal sentencing system.
November 7, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack
Monday, November 04, 2013
"Use of tough federal sentencing laws varies widely nationwide"The title of this post is the headline of this notable new Los Angeles Times article, which carries this subheading: "Some U.S. attorneys have begun to ease up on policies that have led to lengthy sentences for low-level drug criminals. But change has been slow for others." Here are excerpts from the piece:
Under mandatory sentencing laws, it has become a not-so-hidden fact of life in federal courthouses that prosecutors — not judges — effectively decide how long many drug criminals will spend behind bars. The result has been federal prisons packed with drug offenders.
But Atty. Gen. Eric H. Holder Jr. is now trying to steer the Justice Department away from the get-tough policies that have led to lengthy sentences for what one judge called the "low-hanging fruit" in the drug war — dime-a-dozen addicts and street dealers.
Prosecutors have considerable discretion under the laws. If they cite the amount of drugs seized in the charging document, that can trigger the mandatory minimum; if they leave it out, it doesn't. For offenders with prior drug convictions, prosecutors can file a so-called 851 motion, named after a section in the federal code that automatically doubles a sentence — or makes it mandatory life.
Although the mandatory laws were supposed to lead to uniformity, statistics show huge variations across the country in how often prosecutors use them. Holder has instructed prosecutors to avoid using these powerful weapons against lower-level, nonviolent offenders, but, even so, they retain the authority to decide which small players get a break and which get slammed....
In the two months since Holder issued his new policy, some U.S. attorneys ... have begun to pull back, according to judges and attorneys. "We had some terribly harsh sentences," said Randy Murrell, federal public defender in the northern district of Florida. "It's gone on for years, and no one had the courage and gumption to change it. I do think they are changing the policy now."
But elsewhere, change has been slower in coming. "We are hopeful that this will loosen up some of the policies, but we have certainly not seen it yet," said Jonathan Hawley, the federal public defender in central Illinois, another district with a history of tough prosecutions.
A study by the U.S. Sentencing Commission found that more than 47% of all drug defendants in Iowa's southern federal court district ended up with mandatory minimum sentences in 2010 — the third-highest rate in the country. In the northern district, it was more than 40%, the sixth-highest rate. There's even greater inconsistency in the use of 851 motions. In Iowa, they landed on about 80% of eligible offenders, according to sentencing commission data. In bordering Nebraska, the figure was 3%.
In a recent opinion, [Judge Mark] Bennett criticized the Justice Department for the "jaw-dropping, shocking disparity" in how prosecutors wielded the motions. He called the process "both whimsical and arbitrary, like a Wheel of Misfortune."
Some say prosecutors will be reluctant to give up a powerful tool to break open cases — the ability to threaten recalcitrant witnesses with a long federal sentence if they don't play ball....
One federal judge in Brooklyn, N.Y., said Holder's policy didn't go far enough to rein in prosecutors who routinely wielded 851 sentence enhancements as a "2-by-4 to the forehead" to force defendants to accept plea deals. If the Justice Department "cannot exercise its power … less destructively and less brutally, it doesn't deserve to have the power at all," wrote District Judge John Gleeson, a former prosecutor, in a sentencing opinion last month.
A few prior related posts:
- AG Holder to announce new charging policies to avoid some drug mandatories
- US District Judge Bennett documents prosecutor-created disparity from § 851 enhancements in yet another potent opinion
- US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleas
- Don't federal mandatory minimums preserve a lawless (and perhaps discriminatory) "luck-of-the-draw system" of sentencing?
Thursday, October 31, 2013
New report (from small government groups) urges Louisiana to reform its toughest sentencing lawsAs reported in this AP article, headlined "New study calls on La. to change sentencing laws," a notable group of libertarian-leaning organizations has produced a big report urging the state with the highest rate of incarceration to significantly scale back its most extreme sentencing laws. Here are the basics:
The full 36-page report, titled "Smart on Sentencing, Smart on Crime: An Argument for Reforming Louisiana’s Determinate Sentencing Laws," is available at this link. The reports executive summary can be accessed here, and it gets started this way:
Louisiana should shrink its prison population and costs by repealing minimum mandatory sentences for nonviolent crimes, said a study released Tuesday by several right-leaning policy organizations. The groups suggest that Louisiana could maintain public safety while also reducing a per capita incarceration rate that is the highest in the nation, by making changes to the habitual offender law and locking up fewer people for nonviolent offenses.
The Reason Foundation, a libertarian organization based in California, made the suggestions along with the Pelican Institute for Public Policy, a Louisiana-based conservative organization, and the Texas Public Policy Foundation. "Harsh, unfair sentences are putting too many Louisianans in jail for far too long, and at a terrible cost to taxpayers and society," Julian Morris, vice president of Reason Foundation and co-author of the study, said in a statement.
Nonviolent offenders account for the majority of the state's inmates, the report says. By shrinking its prison population, the study says Louisiana could invest more money in rehabilitation programs for those who remain in jail.
Gov. Bobby Jindal's administration said it has asked the state's sentencing commission to review the report's recommendations. Any changes would need approval from state lawmakers.
Over the past several decades, Louisiana legislators have passed a number of determinate sentencing laws aimed at reducing crime and incapacitating certain types of offenders. Because these laws have been disproportionately applied to nonviolent crimes, nonviolent offenders now account for the majority of inmates and admissions to prison in the state. This has produced a number of unfortunate consequences, such as an increase in the state’s prison population from 21,007 in 1992 to 39,709 in 2011 and a $315 million increase in correction expenditures during the same time period, from $442.3 million (in 2011 dollars) in 1992 to $757.4 million in 2011. Meanwhile, there is little evidence that the laws have done anything to reduce Louisiana’s violent crime rate, which remains considerably above both the national average and the rates in its neighboring states. Today, Louisiana has the highest incarceration rate in the country, with 868 of every 100,000 of its citizens in prison.
Louisiana’s citizens could benefit considerably from changes to the way in which convicted criminals are sentenced. As things stand, nonviolent offenders who pose little or no threat to society are routinely sentenced to long terms in prison with no opportunity for parole, probation or suspension of sentence. In most cases, this is a direct result of the state’s determinate sentencing laws. These prisoners consume disproportionate amounts of Louisiana’s scarce correctional resources, which could be better utilized to ensure that violent criminals are more effectively kept behind bars.
Wednesday, October 23, 2013
Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?The silly title of this post is my first reaction to seeing this new report in the Wall Street Journal about the plans and priorities of US Senator-elect from New Jersey Cory Booker. The piece is headlined "On Booker's To-Do List: Revamp Drug Laws; New Jersey's Senator-Elect Face Challenges Once He Takes Office," and here are the excerpts that caught my special attention:
Senator-elect Cory Booker sees revamping drug policies as one of the principal issues he can champion once he takes office in Washington, D.C., and he believes he can draw bipartisan support on the issue—even among those who supported his Republican challenger in the special-election race.
Mr. Booker said he has had initial conversations with Senate Majority Leader Harry Reid about his opinions on the issue—such as eliminating mandatory minimum-sentencing laws for nonviolent offenders and reducing incarceration rates as a way to help save tax dollars.
In the special-election race that wrapped up last week, Mr. Booker campaigned on working across the aisle despite the bitter partisan divide in Washington. Drug policy could be one area where he finds some success, according to those who work in the field. He singled out Sen. Rand Paul of Kentucky, a libertarian, as someone who sees eye-to-eye with him on the issue.
"I want to work with him," said Mr. Booker, about Mr. Paul, during an interview Tuesday at his campaign office in the city he led as mayor for seven years. "I take everybody in the Senate as sincere people who want to make a difference."
Mr. Paul — a tea-party leader seen as a possible 2016 Republican presidential contender — endorsed Mr. Booker's challenger, Steve Lonegan, in the Oct. 16 Senate election. But a spokeswoman for Mr. Paul on Tuesday welcomed Mr. Booker's gesture.
"Senator Paul would be pleased to work with any member who believes that mandatory minimum sentencing is unnecessary," the spokeswoman said. "He looks forward to Senator Booker's assistance on this important issue."
I am very pleased to see Booker talking up federal sentencing reform as he heads inside the Beltway, and I am especially excited to see him calling for a partnership with Senator Rand. Indeed, if the two of them truly seek to make sentencing reform a priority in the weeks and months ahead, the momentum toward reform may really become unstoppable.
And, of course, the notable irony of another person with the surname Booker shaking up federal sentencing perhaps mertis some special attention by clever wanna-be-headline-writing commentators.
Some recent and older related posts:
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
- Is it too early want the new Senator from NJ to get going on sentencing reform?
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Senators Durbin and Lee come together to introduce "Smarter Sentencing Act"
- Does Senator Ted Cruz agree with GOP Senators Mike Lee and Rand Paul about the need for federal sentencing reform?
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
- Another notable GOP member of Congress advocating for federal sentencing reform
October 23, 2013 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6) | TrackBack
Monday, October 21, 2013
Chicago Sun-Times editorial explains why "Mandatory-minimum sentencing doesn’t work"Continuing an important on-going debate in Illinois over use of mandatory minimum sentences to deal with the problem of violent gun crimes, the Chicago Sun-Times today has this extended editorial headlined "Mandatory-minimum sentencing doesn’t work." Here are excerpts:
Mandatory minimum sentences, touted by some as a cure for gun crimes, are little more than a power grab by prosecutors. The intent of a mandatory minimum sentence is to make sure that people convicted of certain serious crimes get prison time and not a slap on the wrist, such as probation. But in the real world, that’s not what happens.
In the real world, this is what happens: Mandatory minimums, dictated by law, make it impossible for judges to use common-sense discretion when imposing sentences, so judges must nail some poor sap who simply made a foolish mistake with the same harsh sentence they would impose on a hardened criminal. But those mandatory minimums do nothing to reduce the ability of prosecutors to use discretion when deciding what charges — light or heavy — to file against a defendant. The indirect result is that prosecutors, not judges, set the sentence.
Mandatory sentencing is a fiction. It simply takes the decision-making for sentencing away from judges sitting in open court, where their actions can be questioned by higher courts, and hands that huge power and responsibility to prosecutors, who make their decisions behind closed doors, never to be challenged.
Legislation that might be called to a vote this week in Springfield would triple Illinois’ mandatory minimum sentence from one to three years for people convicted of the illegal use of a weapon, and it would broaden the kinds of crimes covered. An earlier version advanced out of committee in the spring legislative session, but ultimately died. The bill is backed by Mayor Rahm Emanuel, Police Supt. Garry McCarthy and the families of some gun crime victims. McCarthy says 108 shootings or murders so far in 2013 would have been prevented had the bill already been a law this year. He cited the case of Bryon Champ, convicted in 2012 of the unlawful use of a weapon, who is accused of taking part in a September drive-by shooting that injured 13 in Chicago’s Cornell Square Park.
Clearly, we all wish Champ — if in fact he was one of the drive-by shooters — had still been behind bars. But what about other sorts of gun-possession offenders who would qualify for same mandatory minimum sentence? Would we really send an 87-year-old woman who lives in a dangerous neighborhood to prison for three years for illegally keeping a gun as protection? Should state Sen. Donne Trotter really have gone to prison for three years when a gun was found in his luggage at O’Hare Airport?
It’s a question that will come up more often in Illinois when the concealed carrying of weapons becomes legal next year, and people — forgetting they are armed — try to carry guns into prohibited places. Should those people go to prison for three years as well?
The thinking behind mandatory minimum sentences is that prosecutors can be better trusted than judges to mete out tough punishment. Cook County State’s Attorney Anita Alvarez criticizes judges for being “quite lenient.” But most judges in the criminal court system are former prosecutors. And from 2010 through 2012, about 14,000 people were charged in three categories of unlawful use of a weapon, but the number of convictions was less than half of that. Changing sentences in cases where there is no conviction wouldn’t make any difference.
In analyzing the bill, the University of Chicago Crime Lab estimated that putting more people in prison would lead to 3,800 fewer crimes per year, including 400 fewer serious violent crimes. But the Sentencing Policy Advisory Council calculates that had the stricter mandatory minimum law been in effect from 2010 through 2012, it would have boosted prison costs by about $393 million. A Department of Corrections note attached to the legislation last spring estimated the bill would result in an increase of 3,860 inmates, with additional operating costs of $701,712,300 and construction costs of $263,130,300 over 10 years. That money would have to come from somewhere. If that leads to smaller police forces or cutting out effective programs to prevent recidivism, we might wind up with more gun crime than before.
Julie Stewart, president of Washington-based Families Against Mandatory Minimums, noted in a Feb. 17 Chicago Sun-Times op-ed that Chicago’s murder rate actually jumped 16 percent after Illinois imposed its current one-year mandatory minimum in 2011. And a report released Thursday by the Northwestern School of Law Bluhm Legal Clinic concludes mandatory sentences would not deter crime....
On the national level, the Obama administration is trying to curb mandatory minimum sentencing, which is an idea that goes back to the 1980s. Illinois should be doing so as well.
October 21, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Friday, October 18, 2013
What the heck is NYC doing so right to reduce murders, and why can't Chicago replicate it?The question in the title of this post is prompted by this notable little news item from the New York Times headlined "New York Today: Murder Milestone." Here are the encouraging details:
The city’s murder rate keeps plummeting. So far this year, it’s down 26 percent, officials said.
If that trend holds, it would be the biggest one-year drop yet. And last year had the fewest murders in at least 50 years.
We asked the police bureau chief of The New York Times, Joseph Goldstein, to explain the decline. Some credit goes to a focus by the police on informal youth gangs known as crews, Mr. Goldstein told us.
The police, he said, “make the point that murders attributable to street violence are down even more significantly.” Last week, there were no murders at all.
The drop comes even as officers are doing only about half as many stop-and-frisks as they did at the beginning of last year.
Michael Jacobson, a former city correction commissioner and now a sociology professor at City University of New York, noted that last year’s total of 419 murders was down from 2,245 in 1990.
“If you asked any criminologist 20 years ago, ‘Can it go from 2,200 to 400?’ they would have thought you were insane,” he said. “But if it can go from 2,200 to 400, why can’t it go from 400 to 200?”
This wonderful reality should be celebrated by everyone, though it ought to be especially cheered by those who claimed that recent violent crime declines in the NYC were attributable primarily to very aggressive stop-and-frisk policies and practices. Also of note, especially for sentencing fans, is that this continuing decline in NYC murders is taking place within in a state without the death penalty and with a relatively low (and recently declining) prison population.
Of course, correlation does not mean causation, and a major city in a major state (Chicago, Illinois) is having continuing big problems with violent crime during the same period. Indeed, while folks in Chicago are now very busy having an interesting and robust debate over whether a law proposing mandatory minimum sentences for gun possession is a good way to fight violent crime (as documented in this effective op-ed and this prior post), I wonder if they might use their time and energy more effectively by trying everything they can to replicate everything that folks in NYC are doing lately.
Some related posts on modern crime rates, especially in urban areas:
- Is there really a simple explanation for record-low homicide rate in NYC (or the increase in Chicago)?
- So far in 2013, more investment in cops means less homicides in Chicago
- Is the great US crime decline now finally over?: BJS reports crime up in 2011
- FBI reports crime was down yet again in 2011 (though BJS said it was up)
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Still more (and still puzzling) crime rate declines reported by FBI
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
Tuesday, October 15, 2013
Fascination and frustration with "finality fixation" in en banc Sixth Circuit Blewett argumentsAs mentioned in this recent post, I have so far resisted writing up my thoughts concerning last week's remarkable Sixth Circuit en banc Blewett oral argument on crack sentencing modifications. I have done so in part because I wanted to be able to devote a block of time to the task, and in part because via the Sixth Circuit website folks can (and should) listen for themselves to the audio recording of the hour-long argument via this link.
Now that I have had more time to think about last week's oral argument and the broader issues in Blewett, I continue to find myself (as the title of this post suggests) fascinated and frustrated by what I will call a "finality fixation" in the context of sentencing issues. A variation of this fixation made me a bit batty in the FSA pipeline debate that culminated in the Supreme Court's Dorsey ruling, and it also comes to play in the on-going dispute over whether the Supreme Court's Miller ruling will apply retroactively to final juve murder sentences. I am likely fixated on this notion of a "finality fixation" because I am currently working on a symposium article on this topic. Still, the tenor of much of the Blewett oral argument, and other arenas where concerns about sentencing finality seem often now to trump interests in sentencing fitness and fairness, have a way of driving me to fits of fascination and frustration.
At the risk of repeating parts of the brief on Eighth Amendment issues which I helped file on behalf of the NACDL (and which is discussed and linked via this prior post), let me try here to explain what still makes me a bit nutty about cases like Blewett.
Point 1: Each and every federal criminal justice policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive and ineffectual, AND Congress enacted the "Fair Sentencing Act" to lower all federal crack sentences by raising the trigger quantity for mandatory minimum prison terms and by mandated that the US Sentencing Commission significantly lower all crack guideline prison ranges.
Point 2: When it reformed modern sentencing rules and eliminated parole release, Congress created a express statutory sentencing modification mechanism — in 18 U.S.C. § 3582(c)(2) — through which offenders still in prison who were "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission [can move for a court to] reduce the term of imprisonment," AND thousands of the most serious crack offenders sentenced before the FSA have had their prison sentences reduced through this stautory mechanism. (This latest USSC report indicates not only that 7,300+ pre-FSA crack offenders have had their prison terms reduced by an average of 29 months, but also that thousands of these crack offenders got reduced sentences despite having extensives criminal histories and/or having used a weapon in their offense and/or having a leadership role in the offense. See Table 6 of USSC report.)
Point 3: Congress, the Prez and his Justice Department, and the US Sentencing Commission have all ordered, authorized and/or not objected to thousands of more serious pre-FSA crack offenders being eligble for (and regularly receiving) reduced prison terms via the statutory sentencing modification mechanism of 3582(c)(2). The Blewetts and other less serious pre-FSA crack offenders whose sentences were impacted by the 100-1 mandatory minimum terms and who are still in federal prison serving (now-repealed) pre-FSA crack sentences that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual are now simply arguing that they, too, should be eligible to use the same statutory sentence modification mechanism that thousands of the most serious crack offenders have already benefitted from.
Point 4: Nobody has, to my knowledge, even tried to offer a substantive defense or penological justification as to why the Blewetts and only those less serious pre-FSA crack offenders should not even be eligible for the statutory sentencing modification mechanism of 3582(c)(2) and thus must serve the full duration of (now-repealed) pre-FSA crack sentences. Indeed, it seem to me at least that it is not just unjust, but irrational and cruel and unusual, to require only the least serious pre-FSA crack offenders to serve out prison terms that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual, especially given that thousands of the most serious pre-FSA crack offenders can and have already benefitted from the statutory sentencing modification mechanism of 3582(c)(2). (Critically, Congress has never stated nor even suggested, either expressly or implicitly, that it wanted the Blewetts and only those less serious pre-FSA crack offenders to be catergorically ineligible for sentence modification. Indeed, I think the fair implication of the express provisions of the FSA is that all pre-FSA crack offenders should at least have a chance for sentence modification pursuant to 3582(c)(2).)
In light of all these points, in my view the only plausible rationale for denying the Blewetts and other less serious pre-FSA crack offenders a chance for sentence modification is the oft-stated, but rarely thought-through, idea of "finality." And though I think finality is an important policy concern when defendants are attacking long-final convictions, I do not think this concept of finality historically has or now should be given great weight when a defendant is only seeking to modestly modify a sentence. Further, when a federal defendant is seeking only a modest prison sentence modification under an express statutory provision created by Congress, the comity and separation of powers concerns that might also give finality interests extra heft are not present.
Thus my contention that only a "finality fixation" fully accounts for why so many judges seem resistant to the various legal arguments that the Blewetts and other less serious crack offenders are making in these FSA cases. As I see it, given the text and purposes of the FSA and the text and purposes of 3852(c)(2), the eagerness of judges to deny relief to the Blewetts and other less serious crack offenders reflects a fixation on the notion that, even in this remarkable and unique setting, concerns about sentencing finality should still consistently and conclusively trump the need to achieving sentencing fitness and fairness. And that reality fascinates and frustrates me.
Am I silly, dear readers, to be so fascinated and frustrated by all this? I am hoping, especially from those eager to see the Blewett panel decision undone (which I now fear a majority of the Sixth Circuit is planning to do), for responses in the comments that might help me better see what my analysis above is missing and/or why I should not be so nutty about these "finality fixation" matters.Related posts on Blewett:
- On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
- "Crackheaded Ruling by Sixth Circuit"
- How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
- Two weeks later, has there been any significant and noteworthy Blewett blowback?
- As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling
- Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case
- My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett
- Full Sixth Circuit grants en banc review in Blewett
- Audio of Sixth Circuit en banc Blewett oral argument available (and drinking game suggestion)
October 15, 2013 in Examples of "over-punishment", Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Monday, October 14, 2013
Intriguing research and debate surrounding talk of increasing mandatory minimum sentence for illegal gun possession in ChicagoThis new Chicago Sun-Times article, headlined "U. of C. study bolsters call for stiffer firearms sentences: police supt.," reports on some notable new crime research concerning a proposal to increase the mandatory minimum sentence for certain gun possession crimes. Here are excerpts:
Mayor Rahm Emanuel’s argument for stiffer firearms sentences is bolstered by a new study showing gun possession offenders placed on probation are more likely to get re-arrested for murder than other felons, his police superintendent says.
The University of Chicago Crime Lab studied whether those convicted of aggravated unlawful use of a weapon — a gun possession charge — have higher arrest rates for murders and non-fatal shootings than other felons. Using Chicago Police arrest data, the study found that aggravated UUW offenders were four times more likely to be re-arrested on murder charges and nearly nine times more likely to be locked up for nonlethal shootings than other felons.
The U of C study focused on all felons — and a subset of aggravated UUW offenders — who have been sentenced to probation between 2008 and 2011 in Cook County. The study tracked any re-arrests within two years of their probation date.
“This data makes clear that we have to treat illegal gun possession as the violent crime that it is,” police Supt. Garry McCarthy said on Friday.
A bill backed by the Emanuel administration and Cook County State’s Attorney Anita Alvarez would raise the mandatory minimum sentence for aggravated UUW from one to three years and would require offenders to serve 85 percent of their sentences — a “truth in sentencing” provision.
“No matter how you look at it, this bill will save lives,” McCarthy said. “Every illegal gun on our street is a potential murder and the bill pending in Springfield is narrowly tailored to stop violent criminals.”...
Todd Vandermyde, a lobbyist for the National Rifle Association in Illinois, said he remains opposed to the legislation because he’s concerned first-time offenders could get trapped in the same net as felons.
Meanwhile, the Illinois Department of Corrections last week warned of the steep cost of getting tougher on gun-possession offenders. The department said it would cost about $1 billion to house an additional 3,860 prisoners over 10 years. Those costs would include the $21,000 annual cost of housing each prisoner plus the cost of building new prisons or retrofitting existing ones to accommodate them....
Vandermyde said he doesn’t have a problem with boosting the penalties for felons caught with guns. But he’s worried about first-time offenders getting three-year prison terms....
Aggravated unlawful use of a weapon involves a person who possesses a gun on his person or vehicle, isn’t on his property, and one of the following circumstances exists: the gun is loaded and immediately accessible; the gun is uncased and unloaded, but the ammunition is immediately accessible; or the person doesn’t have a state Firearm Owner’s Identification Card.
The seven-page University of Chicago Crime Lab report referenced in this press article is available at this link (which a kind and helpful reader sent my way).
In addition, John Maki, Executive Director of the John Howard Association of Illinois, has authored a lengthy response here to the UC Crime Lab report titled "Mandatory Minimums Will Not Solve Chicago’s Epidemic of Gun Violence: A Response to the University of Chicago Crime Lab’s Support of HB2265." Here is how this interesting reponse starts and ends:
As Illinois’ only non-partisan prison watchdog, the John Howard Association (JHA) believes that the state needs to do everything in its power to use evidence-driven laws, policies, and practices to address Chicago’s epidemic of gun violence. This must include the appropriate use of the state’s prison system, particularly for the serious offense of illegal gun possession. However, as we debate how we should use prison, we should do so with a clear understanding that the deeper we send a person into the justice system, the more we trade the possibility of the long-term benefit of rehabilitation for the short-term effect of incapacitation....
JHA opposes HB2265 because we agree with the consensus of experts and practitioners who have found that the wise use of judicial discretion is more effective at preventing crime than mandatory minimum sentences. At the same time, it is clear that Mayor Emanuel’s administration and its supporters will continue to lobby for HB2265. JHA would therefore like to recommend two amendments. First, as supporters have argued that the costs of HB2265 will be minimal and that mandatory minimums could even save taxpayer money by deterring crime, JHA proposes that the City of Chicago should pay for the costs of increased incarceration that stem from the bill, which would otherwise fall entirely on the state. Second, if supporters believe that the law will work, they should demand a three-year sunset be placed upon the bill. This would allow analysts to isolate and evaluate its impact. In three years, if the evidence shows that HB2265 works in the way that the Crime Lab argues it will, no one will oppose re-authorizing it, including JHA.
Saturday, October 12, 2013
Audio of Sixth Circuit en banc Blewett oral argument available (and drinking game suggestion)I have been busy and distracted by a variety of work (and non-work) activities ever since attending the remarkable Sixth Circuit en banc Blewett oral argument concerning crack sentencing modifications, and I have not wanted to write up my thoughts on the argument until I had a big block of time to devote to the task. Ergo, I expect I will be posting commentary on the oral argument in this space sometime toward the end of this weekend.
In the meantime, thanks to the tech-friendly Sixth Circuit website, everyone can listen to an audio recording of Wednesday afternoon's hour-long argument via this link. I encourage everyone interested in these issues to take time to listen to the recording. (And, if one is eager to make the listening experience even more exciting, I would recommend using the audio as a drinking game during which a listener must take a big drink every time someone says "Professor Berman." The brief I helped file on behalf of the NACDL, which is discussed and linked via this prior post, was subject to discussion during the argument even though there was, disappointingly, very little focused consideration of the Eighth Amendment jurisprudence I stressed in that brief.)
October 12, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Thursday, October 10, 2013
US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleasRegular readers have of late become familiar with the remarkable series of opinions being issued by US District Judge John Gleeson in which he forcefully expresses his deep concerns with how federal prosecutors can and will use mandatory minimum sentencing provisions to distort the operation of the federal criminal justice system. Judge Gleeson's latest opinion in this series was handed down yesterday in US v. Kupa, No. 11-CR-345 (E.D.N.Y. Oct. 9, 2013) (available for download below), and its full 60 pages are must-read material for federal sentencing fans. The opinion can not be easily summarized, but its conclusion provide a flavor of what comes before:
Some prior posts noting Judge Gleeson's recent sentencing opinions:
I sentenced Lulzim Kupa to a 132-month term of imprisonment for a variety of reasons. The most important by far was because I could, that is, I was not required to impose a sentence of life in prison for his nonviolent drug trafficking offense. And the only reason for that is Kupa buckled under the enormous pressure that looming sentence placed on him. The prior felony information ushered that 800-pound gorilla into the case at the eleventh hour and it took the case over. Once it was filed, everything that followed was done with all eyes on the draconian sentence that a jury’s verdict of guilty would require me to impose. It snuffed out an imminent trial at which Kupa wanted to do what our Constitution and Bill of Rights guarantee him: hold the government to its burden of proving him guilty beyond a reasonable doubt. And indeed the desire to snuff out that trial was reason the sole reason the prosecutor filed it.
Throughout, I have assumed that both the drug offense mandatory minimums and the onerous enhancements triggered by prior felony informations are here to stay, at least in some form. After all, as a circuit judge wrote in 2009, “[t]he Judicial Conference of the United States for almost 20 years, and the Sentencing Commission for almost 10 years, have pleaded with the judiciary committees of Congress to do something about the serious injustices that these long, mandatory minimum sentences impose -- to no avail.” [footnote citing Gonzalez-Ramirez, 561 F.3d at 31 (Merritt, J., concurring).] I have also assumed the constitutionality of using prior felony informations as bludgeons in federal prosecutors’ efforts to get defendants to plead guilty. But arguing that it is not illegal for prosecutors to use prior felony informations to produce the guilty pleas and sentences described above is no way to defend such a wayward policy. Attorney General Holder’s admirable leadership toward sentencing reform should lead him to refocus his attention on prior felony informations. If DOJ cannot exercise its power to invoke recidivist enhancements in drug trafficking cases less destructively and less brutally, it doesn’t deserve to have the power at all.
- Former US Attorney, and now District Judge, makes pitch to AG Holder on mandatory minimum charging
- Former federal prosecutor urges "Mandatory minimums for kingpins only"
- US District Judge Gleeson assails drug guidelines in another potent opinon
October 10, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (32) | TrackBack