Sentencing Law and Policy

Can we thank Judge Posner for the latest ACCA cert grant?

I see now from this post at SCOTUSblog that the Supreme Court's new ACCA case on its docket comes from the Seventh Circuit in a case in which, as detailed here, Judge Posner was in fine form.  The case is US v. Chambers, and SCOTUSblog as all the cert papers assembled here for those interested in seeing the back-story for the latest trip into ACCA-land.

Judge Weinstein makes notable headlines with notable jury-based ruling

Famed EDNY Judge Jack Weinstein has found a creative, questionable and headline-making way to avoid the application of a mandatory minimum federal sentence in a child porn case.  Here are the headlines:

• From the New York Post here, "Judge's Bizarre Ruling Aids Perv"
• From the New York Daily News here, "Father convicted of downloading child porn not given jail time"

Here is the start of the Post article:

In a decision that turns hundreds of years of legal precedent on its head, a judge ruled yesterday that juries should be made aware of "harsh mandatory minimum" sentencing rules in certain cases.  Maverick Brooklyn federal Judge Jack Weinstein issued the ruling in a child-porn case over which he presided - chastising himself for not telling the jury that the defendant faced a minimum five-year sentence before it found him guilty.

The drastic ruling says juries should be told what sentences certain criminals face, especially if the prison terms are particularly long.  It attempts to reverse the long-standing rule that jurors not be given sentencing information so they can decide guilt or innocence, without letting the potential punishment color their thinking.

"The judge has gone out on a limb here," said a law-enforcement source. "There's clear case law that says the jury should not be informed about mandatory minimums."

Is legislation to lower federal sentences a real possibility in 2008?

In this recent post, I hinted at my own pessimism about the prospects of legislation to lower federal sentences during an election year.  But this new article from the Houston Chronicle strike a distinctly more optimistic tone.  Here a excerpts:

The tough-on-crime crackdown of the 1980s and 1990s is getting a second look in Congress. Some lawmakers, including Houston Rep. Sheila Jackson Lee, are questioning whether the soaring incarceration rates brought about by changes in federal sentencing laws have actually deterred crimes....

Jackson Lee, who serves on the House Judiciary Committee's crime subcommittee, is part of the vanguard re-examining a criminal justice system that has seen the federal prison population double from 1.1 million inmates in 1990 to 2.3 million today [sic: these numbers are national incarceration, not the federal prison population]....

The momentum for change reaches beyond liberal lawmakers and left-leaning interest groups. The Supreme Court and the Sentencing Commission recently moved to give judges more discretion in sentencing crack cocaine offenders....

Rep. Lamar Smith of San Antonio, the top Republican on the Judiciary Committee, will be among those standing in Jackson Lee's way.  After the Sentencing Commission's decision to allow judges to retroactively reduce crack offenders' sentences slightly — though not less than the mandatory minimums — Smith introduced his own legislation seeking to block any early releases. "In addition to endangering our communities, allowing the early release of criminals back into society would cripple our re-entry programs by overburdening probation officers and flood the courts with additional litigation," Smith said....

Jackson Lee, who also is pushing to cut prison rates by half for nonviolent federal offenders who are over the age of 45 and have served at least 50 percent of their sentence, said she is hopeful that the new Democratic majority in Congress will be able to prevail on criminal justice changes.  "The question of liberty is so important to me, and the question of having faith in the integrity of the criminal justice system," she said. "There is a sense of urgency to make right which has been wrong, to improve what has not worked, and to find ways to rehabilitate, to protect the American public from crime but at the same time give people a second chance."  Her views are far from universally shared. Jackson Lee acknowledged the legislation faces a strong challenge, though the congresswoman said she has high hopes of getting it into law this year.

For lots and lots and lots of political and practical reasons, I doubt significant sentencing reforms will emerge from Congress in 2008.  But perhaps I am being too pessimistic at a time when everyone seems to be getting on the change bandwagon. 

Examining the efficacy of state mandatory minimums

This local article provides is some encouraging news from Pennsylvania, as well as a game-plan many states should follow as budgets tighten and prison populations expand:

With many of its prisons near capacity, Pennsylvania is one of 18 states that is taking steps to reform its criminal justice system, according to a national report released last week. Pennsylvania lawmakers directed the state Sentencing Commission to study whether mandatory minimum sentences — long a hot-button issue between the judiciary and the Legislature — are effective.

"We want to try to determine the purpose of mandatories and see if those objectives have been achieved," said Mark Bergstrom, executive director of the Sentencing Commission. "Clearly we have to look at overcrowding — state and local numbers are going up; the Department of Corrections budget is $1.4 billion — but we can't risk public safety to do it."....

Experts applauded lawmakers' decision to consider changes to the system.  "I think it's absolutely brilliant news from the Legislature," said Al Blumstein, a criminology professor at Carnegie Mellon University. "During the crime concerns of the '80s and '90s, they passed mandatory sentences, particularly with drug offenses. The result is the criminal justice system is overburdened and it didn't do much about drug crime."  Blumstein said when older drug dealers and users are put away, younger ones quickly take their places on the streets....

State Rep. Frank Dermody, D-Oakmont, who chairs the Sentencing Commission, said forthcoming changes are not a guarantee. "Let's see what the results of the study bring," he said. "Public safety is always No. 1, but we want to get people out of jail who don't belong there."

Some recent related state sentencing posts:

• New report on the state of sentencing in 2007
• It's the prison economy, stupid
• An effort to get politicians focused on needed sentencing reforms
• Kentucky, like so many other states, struggling with prison overcrowding

Interesting "rule of lenity" arguments in new SCOTUS brief

As noted here at SCOTUSblog, the petitioner in Burgess v. United States, No. 06-11429 — a case concerning the application of a 20-year mandatory minimum sentence imposed under 21 U.S.C. § 841(b)(1)(A) — filed this merits brief earlier this week.  Though the main statutory interpretation issue in Burgess is quite technical, the brief is quite interesting (and was authored by a veritable SCOTUS dream team).  Of particular interest is the brief's fairly extended discussion of the "rule of lenity" and its application in this case.  Here is a summary of these points from the brief's "summary of the argument" section:

A criminal statute subject to two plausible constructions, one harsher than the other, must be resolved in favor of lenity.  Congress has legislated against the backdrop of the rule of lenity for generations, aware that when it intends to make previously innocent conduct criminal, or increase the penalty for previously illegal conduct, it must make that intention plain.  Strict application of the rule of lenity is especially appropriate in the context of mandatory minimum sentencing, which alters the traditional allocation of sentencing authority among the branches and where a mistaken interpretation can result in particularly severe consequences that may be, as a practical matter, difficult for Congress to correct.  On the other hand, there is every reason to believe that Congress stands at the ready to revise an unduly lenient construction, as the history of this sentencing provision illustrates.

Effective review of politics and prison populations

Writing in the Los Angeles imes, Joe Domanick has this effective op-ed headlined "Prisoners of panic: Media hype and political quick fixes have swelled our inmate population." Here are excerpts:

How much more folly, absurdity, fiscal irresponsibility and human tragedy will we endure before we stop tolerating the political pandering that has dictated our criminal justice law and policy over the last two decades?

The pattern has become all too clear. Our politicians, fearful of being labeled "soft on crime," react to sensationalistic coverage of a crime with knee-jerk, quick-fix answers. Only years later do the mistakes, false assumptions and unexpected consequences begin to emerge, and then the criminal justice system is forced to deal with the mess created by the bad lawmaking....

Today, Californians are still paying the price for [its severe three-strikes laws] and other like-minded laws, not just in the ruined and wasted lives of people sentenced under these laws, but in other ways. There are now tens of thousands of inmates in California convicted of nonviolent crimes and serving out long second- and third-strike sentences, as well as thousands more behind bars because minor crimes were turned into felonies with mandatory minimum sentences.

All these laws have contributed to severe overcrowding in the state's prisons -- as high as 200% of capacity -- that has produced conditions of such "extreme peril" for prisoners and guards that Gov. Arnold Schwarzenegger was forced to declare a systemwide state of emergency in 2006.... A large part of the problem is that the prison population is aging because inmates are serving the longer sentences approved by lawmakers, and with aging comes more medical problems....

Faced with the huge budget deficit and judicial threats to cap the state's prison population, Schwarzenegger's office has been floating the idea of early release for about 22,000 inmates convicted of nonviolent crimes.  That 13% cut in prisoners, however, would require legislative approval, something that is by no means certain. The story of crime and punishment in California -- and the country -- since the 1980s, after all, has been quick-fix answers fueled by media hype.  Let's hope that such proposals as releasing nonviolent inmates receive serious attention rather than panicky headlines that lead to bad criminal justice laws.

Evolving images of a killer and the evolving Eighth Amendment

There are so many interesting facets of the Pittman case (first discussed here), which has now been brought to the Supreme Court.  This new National Law Journal article provides the basics and highlights the role of a law school clinic in bringing the case to the Supreme Court:

A group of University of Texas School of Law students has helped file a petition with the U.S. Supreme Court in hopes of getting a South Carolina teenager's sentence reviewed.  The petition, filed on Monday, asks the court to review the case of Christopher Pittman, who is serving a 30-year sentence without parole for murdering his grandparents when he was 12.  Five third-year law students from the school's Supreme Court Clinic in Austin teamed up with five public policy students and spent the semester working on the case.

In addition, as spotlighted in this post at Pharmalot, the Pittman case has already drawn plenty of attention from folks other than those concerned just with the operation of the criminal justice system:

[If the Supreme Court takes this case] another aspect is likely to get attention — Christopher Pittman was taking Zoloft at the time he used a shotgun to shoot his grandparents, and then set fire to their home in 2001.  During his trial four years later, his attorneys argued, unsuccessfully, that the rampage was heavily influenced by the antidepressant, which Pfizer has always denied....  Meanwhile, a [recent] Fox News program, Hannity’s America, ran a segment linking recent mass shootings by teenagers with antidepressants. The episode had its flaws — the reporter failed to include comment from anyone in pharma or at the FDA, and suggested a connection to the recent shooting at the Omaha shopping mall without offering any evidence. Nonetheless, these two items suggest the debate over the proper use of antidepressants won’t go away and, in fact, is likely to remain polarized for the foreseeable future.

While others may be primarily interested in the human and medical stories that surround this case, I am focused on legal issues concerning the interpretation and application of the Eighth Amendment in this (non-capital) context.  Of particular interest to me is how the Eighth Amendment is to be applied in non-capital cases in light of the Court's recent capital rulings in Roper and Atkins (and its forthcoming work in Baze).  Specifically, I wonder whether and how the legal concept of an "evolving national consensus" that was central in Roper and Atkins should be unpacked here.  Against this backdrop, I am especially intrigued by the different images of the defendant that can be in the mind's eye as one thinks about whether the sentence he received is unconstitutional because it would violate societal mores.  As a few shrewd commentors have already noted (and as the pictures in this post highlight) the evolving nature of a young man perhaps has already played a role in his fate, and could continue to play a role in the debate over this case.

NY Times editorial against mandatories

This morning's New York Times has this strong editorial, entitled "An Idea Whose Time Should Be Past," which calls for the elimination of all mandatory sentencing statutes.  Here are excerpts:

The mandatory sentencing craze that began in the 1970s was a public-policy disaster. It drove up inmate populations and corrections costs and forced the states to choose between building prisons and building schools or funding medical care for the indigent.  It filled the prisons to bursting with nonviolent drug offenders who would have been more cheaply and more appropriately dealt with through treatment. It tied the hands of judges and ruined countless young lives by mandating lengthy prison terms in cases where leniency was warranted. It undermined confidence in the fairness of the justice system by singling out poor and minority offenders while largely exempting the white and wealthy....

Nowhere is repeal of mandatory-sentencing policies more urgently needed than in New York, which sparked an unfortunate national trend when it passed its draconian Rockefeller drug laws in the 1970s. Local prosecutors tend to love this law because it allows them to bypass judges and decide unilaterally who goes to jail and for how long.

But the general public is increasingly skeptical of a system that railroads young, first-time offenders straight to prison with no hope of treatment or reprieve.  In an often-cited 2002 poll by The New York Times, for example, 79 percent of respondents favored changing the law to give judges control over sentencing. And 83 percent said that judges should be allowed to send low-level drug offenders to treatment instead of prison.

As I have suggested before, repealing and even resisting mandatory minimum sentences requires politicians to show courage and leadership to help the public understand the complicated but compelling reasons why crude mandatory sentencing provisions often do more harm than good in a criminal justice system.  I am hoping that, in the wake of the Supreme Court and the US Sentencing Commmission showing courage and leadership last week, some elected official will step up to the plate.

Ninth Circuit has busy day dealing with sentencing technicalities

The Ninth Circuit has there decision today dealing with three different technical sentencing questions.  Based on a very quick scan, the ruling that looks most interesting is in US v. Macias-Valencia, No. 06-10711 (9th Cir. Dec. 5, 2007) (available here), which starts this way:

Does the mandatory minimum sentence of 10 years, prescribed by 21 U.S.C. § 841(b)(1)(A)(viii), apply to a conviction for conspiracy with intent to distribute, and attempted possession with intent to distribute, 50 grams or more of methamphetamine, even when no actual contraband was involved in the commission of the offense?  Joining the Sixth Circuit, we answer “yes.”

Obama talking about serious sentencing reform

As detailed in a number of posts below, I have been wondering about when some of the presidential candidates would start talking seriously about sentencing reform.  According to this press release, which is entitled "Obama Outlines Plan to Address Disparities in America's Justice System," today is the day for Barack Obama.

Obama is giving a speech at Howard University, and the press release details these notable feature's of Obama's plan for "ensuring that every citizen is afforded equal and fair justice under the law":

• "He will ensure that we have crime policy that is both tough and smart.  This means if you are convicted of a crime involving drugs, you will be punished. However, the punishment for crack cocaine should not be that much more severe than the punishment for powder cocaine when the real difference between the two is the skin color of the people using them."

• "He will review mandatory minimum drug sentencing to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of non-violent offenders.  And he will give first-time, non-violent drug offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior."

With last week's Jena 6 march and next week's SCOTUS argument in Kimbrough, the timing for this speech seems just right.  It will be especially interesting to see what sort of national reception it gets and whether these issues have any long-term traction.

• Clinton and Obama, crime and punishment
• Will sentencing issues surface in the Clinton-Obama battle for black votes?
• Politics and the war on drugs
• Should criminal justice reform be the new civil rights movement?
• Honoring MLK by asking hard questions
• The latest BJS stats on incarceration nation

UPDATE:  A lengthy 7-page official document from the Obama campaign covering a range of equal justice issues can be accessed at this link.

New magazine launches with piece on crack sentencing

I received word today of the launch of a new publication, Human Nature magazine, which can be accessed at this link.  Included in a number of intriguing looking articles in the first issue is this piece about mandatory minimum crack sentencing, which is authored by publisher/executive editor Christopher Windham.  The story is entitled "Doing The Right Thing: After 20 Years, the Debate Over Mandatory Minimum Sentencing Laws for Cocaine Heats Up," and here is one of many notable passages:

The federal mandatory minimum sentencing laws have also had a profound affect on African-American women.  For example, the incarceration rate for African-American women for all crimes has increased by 800% since 1986 compared to 400% for women of all ethnicities, largely due to drug convictions. Since federal judges have little or no flexibility to consider the reasons why women are involved in the drug trade, such as domestic violence or financial dependency, they often receive the same or harsher sentences as major drug traffickers, policy experts say.

Interesting USSC data on mandatory minimums

Now available on line at this link from the US Sentencing Commission is the prepared statement of Ricardo Hinojosa, USSC Chair, for today's House hearing on mandatory minimum sentencing.  This statement is full of very interesting data on the application of mandatory minimum sentences during fiscal year 2006.  Here is a sample of the statement's many interesting snippets of data:

Of these 69,627 cases [with complete information from fiscal year 2006], offenders in 20,737 cases (29.8%) were convicted of a statute carrying a mandatory minimum penalty.  Of these 20,737 offenders, 2,716 (13.1%) received a statutory mandatory minimum sentence that was required to be consecutive to any other sentence imposed....

Black offenders are the only racial/ethnic group that comprised a greater percentage of offenders convicted of a statute carrying a mandatory minimum penalty (32.9%) than their percentage in the overall fiscal year 2006 offender population (23.8%)....

Excluding immigration cases, both Hispanic offenders and black offenders comprised a greater percentage of non-immigration offenders convicted of a statute carrying a mandatory minimum penalty than their percentage in the overall fiscal year 2006 offender population.

Follow-up on today's House hearing on mandatories

The Administrative Office of the U.S. Courts has just issued this news release reporting on the testimony of District Judge Paul Cassell at this morning's hearing, entitled, "Hearing on Mandatory Minimum Sentencing Laws — The Issues," before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee.  I am hopeful there will be more media coverage from the hearing, though any readers in attendence are encouraged to provide a report in the comments:

Some recent related posts:

• The safety valve solution to mandatory minimums
• Powerful attack from Judicial Conference against mandatory minimums
• IACHR hearing on federal mandatory minimum sentencing
• Might Congress move ahead with sound sentencing reforms?

UPDATE:  The Sentencing Project has a brief report on the hearing here.

The safety valve solution to mandatory minimums

As discussed here and officially detailed here, this morning the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee is holding a hearing entitled, "Hearing on Mandatory Minimum Sentencing Laws — The Issues."   As spotlighted here, US District Judge Paul Cassell, speaking on behalf of the Judicial Conference of the United States, makes a very powerful statement against mandatory minimums. 

Unsurprisingly, however, US Attorney Richard Roper's written testimony argues in support of mandatory minimum sentencing laws and asserts that they are "critical tools for combating certain serious crimes."  Interestingly, though, Roper's testimony expresses support for the federal safety valve provisions, which he says "has been successful at preventing the mandatory minimum drug provisions from sweeping too broadly." 

I concur that the statutory safety valve has helped ameliorate some of the worst excesses of some mandatory minimum sentencing provisions.  However, Judge Cassell's testimony documents that the safety valve does not help in all cases (principally because of some rigid limitations in the reach of the safety valve).  I have long thought that, if Congress lacks the political will to eliminate all broad mandatory minimum sentencing provisions, it ought to at least expand the applicability of the safety valve to all first offenders and perhaps to all other nonviolent offenders.  After all, as Roper's testimony highlights, prosecutors view mandatory minimums as most important and perhaps only justified when directed at "major drug traffickers, gang violence, predators, and those who use firearms to further violent or drug-trafficking criminal activity."

Some recent related posts:

• Powerful attack from Judicial Conference against mandatory minimums
• IACHR hearing on federal mandatory minimum sentencing
• Might Congress move ahead with sound sentencing reforms?

Powerful attack from Judicial Conference against mandatory minimums

As first noted here and as detailed officially here, tomorrow morning the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee is holding a hearing entitled, "Hearing on Mandatory Minimum Sentencing Laws — The Issues."  I have been expecting that most of the speakers would be offering testimony critical of mandatory minimum sentencing statutes.  I have just received a copy of the written statement of US District Judge Paul Cassell on behalf of the Judicial Conference of the United States, and it is even more critical than I expected. 

Judge Cassell written statement on behalf of the Judicial Conference is available for download below.  Here is how it begins:

I am pleased to be here today on behalf of the Judicial Conference of the United States and its Criminal Law Committee to discuss the damage mandatory minimum sentence do to logic and rationality in our nation's federal courts.

Mandatory minimum sentences mean one-size-fits-all injustice.  Each offender who comes before a federal judge for sentencing deserves to have [his or her] individual facts and circumstances considered in determining a just sentence.  Yet mandatory minimum sentences require judges to put blinders on to the unique facts and circumstances of particular cases, producing what the late Chief Justice Rehnquist has aptly identified as "unintended consequences."

Download statement_of_honorable_paul_cassell.pdf

UPDATE:  I now see that the full list of witnesses for the hearing is available at the official House website.  Here is the full list of scheduled witnesses:

• T. J. Bonner, President National Border Patrol Council (AFGE)
• The Honorable Paul G. Cassell, Judge Judicial Conference of the United States
• The Honorable Ricardo H. Hinojosa, Chairman United States Sentencing Commission
• Marc Mauer, Executive Director The Sentencing Project
• Serena Nunn
• Richard Roper, U.S. Attorney