Sunday, November 01, 2015

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

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

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

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

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

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

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

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

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

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

Thursday, October 29, 2015

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

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

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

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

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

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

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

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

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

Recent prior related posts on SRCA 2015:

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

Noting the potential sentencing reform benefit from the latest budget deal

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

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

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

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

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

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

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

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

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

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

Friday, October 23, 2015

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

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

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

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

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

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

Thursday, October 22, 2015

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

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

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

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

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

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

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

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

Recent prior related posts on SRCA 2015:

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

Monday, October 19, 2015

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

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

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

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

Recent prior related posts on SRCA 2015:

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

Friday, October 16, 2015

Notable new polling on distinct sentencing/punishment issues

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

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

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

Wednesday, October 14, 2015

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

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

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

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

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

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

BILL HEARING

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

BILL REVIEW

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

Recent prior related posts on SRCA 2015:

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

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

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

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

Monday, October 12, 2015

"The Reverse Mass Incarceration Act"

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, October 10, 2015

Via the National Review, an unintended parody of various arguments against modest federal sentencing reform

Tumblr_mr31fpWYLB1qzpxx1o1_500I generally respect and benefit form the work Bill Otis does over at Crime & Consequences criticizing sentencing reform movements because, despite sometimes overheated rhetoric, he generally uses sound data and reasonable aguments to make out the best case in defense of the modern federal sentencing status quo.  Though I think Bill is often wrong on the merits, especially with respect to federal statutory sentencing reform issues, he is justifiably seen as an important voice in the public-policy debate because he regularly makes responsible and sober claims in support of his various positions.

I bring all this up as a prelude to spotlighting this notable new National Review commentary by Andrew McCarthy, headlined "Keep Minimum Sentencing, to Discourage Criminals." This lengthy piece, in my view, reads almost like a parody (unintentionally, I assume) of many arguments against federal sentencing reform that Bill and some other prosecutors make much more soundly in other settings. Here are some few passages from the piece that strike me as especially cringe-worthy:

Young Americans for whom the Reagan administration is ancient history, New Yorkers who grew up in the post-Giuliani City — they have no memory of what it was like from the Sixties into the early Eighties. For them, the revolution in crime-fighting that so dramatically improved the quality of American life is not revolutionary. It is simply ... life. There is nothing hard-won about it. It is not informed by the dark days when rampant crime was fueled by a criminal-rights campaign premised on many of the same loopy ideas that undergird Washington’s latest fetish, “sentencing reform.”

The worst of those ideas is to roll back “mandatory minimum” sentences. These are terms of imprisonment, often harsh ones, that must be imposed for serious crimes. Mandatory minimums tie the hands of judges, mandating that they take hard criminals off the streets rather than slap them on the wrists. Before the Reagan era, federal penal laws prescribed potentially severe sentences for serious offenses ...[but a] judge was also free to impose the minimum sentence of no time whatsoever. What punishment to impose within that expansive statutory range from zero to 50 years was wholly the judge’s call. In effect, this nearly boundless discretion transferred control over punishment for crime from the public to the courts.

Federal judges tend to be very good at the difficult job they are trained to do: apply law, which is frequently arcane and sometimes inconsistent, to factual situations, which have their own complexities. This skill, however, does not necessarily translate into expertise in making punitive judgments that are governed less by legal rules than gut feeling — gut feeling being what controls broad discretion....

Even if many judges were not instinctively sympathetic to arguments in favor of harsh sentencing, sympathy comes with the institutional territory. The judge’s duty is not to promote public safety; it is to ensure that parties before the court receive justice. It is a bedrock conceit of those who toil in the justice system that the public perception of justice is just as vital as the objective reality of justice. Thus, the judge has great incentive to bend over backward to give convicted defendants every bounce of the due-process ball.

It is a lot easier to call for a harsh sentence from the peanut gallery than to be the judge who has to impose a sentence after a desperate plea for leniency has been made and while the defendant’s mother, wife, and kids weep in the first row. So whether the pressures were ideological, institutional, or rooted in human nature, judges were often weak sentencers. That weakness translated into the inadvertent promotion of crime by failing to disincentivize it and failing to sideline career criminals. Mandatory minimums were thus enacted by overwhelming congressional margins in order to divest judges of the discretion to impose little or no jail time for serious crimes and habitual criminals.

It is the latest Beltway fashion to demand that mandatory minimums be rolled back, if not repealed, on the theory that incarceration causes rather than drastically reduces crime. Or, since that claim doesn’t pass the laugh test, on the theory that incarceration is racist — the great American conversation ender. Beyond the in terrorem effect of the racism smear, the latter rationale relies on the overrepresentation of minorities, particularly blacks and illegal aliens, in the prison population — and banks on your being too cowed to bring up the overrepresentation of minority communities in the crime-victim population.

Alas, a “reform” that reduces mandatory minimums will benefit only one class of people — serious felons who commit many more crimes than they are prosecuted for. And racism? Please. We have, to take one pertinent example, a harsh mandatory minimum sentence for predators who are convicted of a felony after having previously being convicted of three other serious crimes. Congress wasn’t targeting race; it was targeting sociopaths.

Understand, I am not contending that the criminal-justice system is without flaws badly in need of correction. But the main problem is not severe sentencing. It is over-criminalization.

Too much formerly innocent private conduct has become prohibited, making criminals out of essentially law-abiding people. Law is supposed to be a reflection of society’s values, not a tool by which society is coerced to transform its values. Moreover, when the statutes, rules, and regulations proliferate to the point that it becomes unreasonable to expect average people to know what is forbidden, we no longer have a nation of laws; we have a nation of men arbitrarily deciding which of the presumptively guilty get punished and which go unscathed.

If a problem is not accurately diagnosed, it will not be cured. There is a prescription for what ails us, but it is most certainly not a repeal of the severe sentences enacted to address serious crime. Nothing that rewards real criminals at the expense of the people they victimize should trade under the name of “reform.”

I share the closing sentiment that a problem need to be accurately diagnosed to be solved. But there are so many problems in the arguments before that sentiment, I almost feel unable to unpack them all in the space. What I find especially peculiar are the suggestions here that sound sentencing is necessarily only about "gut feeling," that it is problematic judges consider "every bounce of the due-process ball," and that sentencing would be better if more attentive to every "call for a harsh sentence from the peanut gallery." Also remarkable is the suggestion that any and everyone subject to an existing federal mandatory minimum is a "sociopath" that must be subject to severe punishment because surely they have committed "many more crimes than they are prosecuted for."

All these curious contentions aside, I find it especially remarkable how McCarthy concludes after saying nothing is wrong with the harsh mandatory drug and gun sentences created in recent decades by Congress and applied (inconsistently) by federal prosecutors. He says the "main" problem is other federal criminal laws created in recent decades by Congress and applied (inconsistently) by federal prosecutors which creates, so he claims, a "nation of men arbitrarily deciding which of the presumptively guilty get punished and which go unscathed." In other words, it seems, when it comes to imposing punishment for crimes, we should continue to distrust modern judges and trust old mandatory sentencing laws created by Congress in the 1980s, but when it comes to defining what is a crime, we should not trust Congress because somehow they enact criminal laws (but not "severe sentences") that are not really "a reflection of society’s values."

I trust I am not the only one who see how backward a lot of what is being said here. But apparently the folks at the National Review see reasonable logic or some kind of wisdom here that perhaps requires spending more time in the Beltway to understand. Or maybe I just need to go re-watch Breaking Bad, which NR has extolled, so I can better understand the "sociopaths" federal judges cannot be trusted to sentence properly because they have the wrong "gut feeling" while concerned with "every bounce of the due-process ball."

October 10, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (4)

Thursday, October 08, 2015

Basic elements of House's Sentencing Reform Act of 2015

As noted in this prior post, a bipartisan group of Respresentatives today introduced a version of sentencing reform in the form of this 18-page bill called the Sentencing Reform Act. This press release from the House Judiciary Committee provides this introduction:

The Sentencing Reform Act of 2015 reduces certain mandatory minimums for drug offenses, reduces the three-strike mandatory life sentence to 25 years, broadens the existing safety valve for low-level drug offenders, and provides judges with greater discretion in determining appropriate sentences while ensuring that serious violent felons do not get out early. The bill also contains sentencing enhancements for Fentanyl trafficking, a highly addictive and deadly drug that is becoming a growing epidemic in the United States.

The Sentencing Reform Act of 2015 is the first bill that is a result of the House Judiciary Committee’s criminal justice reform initiative. The Committee continues to work on additional bills that address other aspects of our criminal justice system, including over-criminalization, prison and reentry reform – including youth and juvenile justice issues – improved criminal procedures and policing strategies, and civil asset forfeiture reform. The Committee will roll out more bills addressing these topics over the coming weeks.

The press release also includes quotes from various House members and has links to a "one-pager on the Sentencing Reform Act [that] can be found here and section-by-section [that] can be found here."

October 8, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

House Judiciary leaders set to introduce (distinct?) big bipartisan sentencing reform bill

As detailed in this press release from the House Judiciary Committee, this morning Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) are going to release the detail of the House Judiciary Committee’s bipartisan criminal justice reform initiative.  Here is the statement from the pair:

For the past several months, the House Judiciary Committee has been working on a bipartisan basis on several bills to ensure our federal criminal laws and regulations appropriately punish wrongdoers, are effectively and appropriately enforced, operate with fairness and compassion, protect individual freedom, safeguard civil liberties, work as efficiently as possible, do not impede state efforts, and do not waste taxpayer dollars.

As a result of this work, we are pleased to announce that we, along with Crime Subcommittee Ranking Member Sheila Jackson Lee and a bipartisan group of leaders on this issue, will introduce companion legislation to the sentencing reform portion of the Senate bill unveiled last week by Senators Grassley, Durbin, Cornyn, Leahy, Booker and others.

We are also continuing our work on additional bills that address other aspects of our criminal justice system, including over-criminalization, prison and reentry reform, including youth and juvenile justice issues, improved criminal procedures and policing strategies, and civil asset forfeiture reform and we expect to roll out more bills addressing these topics over the coming weeks.

I am very excited to learn that the House is going to have its own version of the Senate's SRCA 2015 making the rounds. This news makes me a bit more optimistic that Congress could get a sentencing reform bill passed at to the desk of the President before the end of 2015.

Recent prior related posts on SRCA 2015:

October 8, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Monday, October 05, 2015

Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015

I am quite pleased to see that, in the wake of introducting in the US Senate the remarkable Sentencing Reform and Corrections Act of 2015 (basics of SRCA here), two prominent GOP Senators (one old guard, one new guard) have taken to the op-ed pages to explain what they are doing.   Politics_Grassley_620Here are links to these op-eds:

From (old guard) Senate Judiciary Chair Charles Grassley in the Des Moines Register here, "I'm working for criminal justice reform."  Excerpts:

For the last several months, I’ve listened, worked, negotiated and built consensus with my colleagues on an important public policy that governs crime and punishment and has a sweeping effect on the citizenry.  The nation’s criminal justice system serves the accused and the aggrieved in our society. And the taxpaying public foots the bill for our courts, law enforcement and prisons that protect public safety and serve justice....

Notwithstanding the merits of mandatory minimums that are designed to promote the public good and public safety, federal sentencing has come under increased scrutiny for locking up low-level offenders and incarceration rates that are running up an unsustainable tab to American taxpayers, roughly $80 billion annually. There’s no doubt that drug and human trafficking and gang-related crimes continue to persist and poison the well of civic life, endangering public safety daily.  And yet, there’s room for sensible reforms that improve the criminal justice system so that it’s fair and just to victims, the accused and taxpayers.  The right policy mix of reforms can give low-level offenders who have paid their debts to society a second chance to rejoin their families and find employment in their communities.

This week I introduced the bipartisan Sentencing Reform and Corrections Act of 2015. It reflects carefully crafted sentencing reforms to achieve fairness, justice and fidelity to the rule of law.

Our proposed reforms give the courts more flexibility in federal sentencing laws for non-violent, low-level drug offenders, including the elimination of the three strikes mandatory life provision.  We also expand the existing safety valve and add a second safety valve that provide relief from the 10-year mandatory minimum for certain low-level offenders.  It would retroactively apply the Fair Sentencing Act of 2010 that reduced the sentencing disparity between crack and powder cocaine criminal drug offenses.

We also target and expand some of the existing mandatory minimums so that law enforcement can continue to pursue violent repeat offenders and gun criminals.  And we create new mandatory minimums for crimes involving interstate domestic violence and the export of weapons and other defense articles to prohibited countries and terrorists.

The scales of justice require equal rights under the law for the accused and for victims of crime.  Fairness in a criminal justice system also must consider the opportunity for reintegration.  Our bill would require the Department of Justice to classify all federal inmates and assign qualifying prisoners to a recidivism reduction program.  This may include job training, drug recovery, faith-based and work and education programs that provide eligible inmates an opportunity to earn early release.

There’s a fine line between leniency and levelheadedness.  That’s why I’m working for balanced reforms that do not compromise public safety and national security.

From (new guard) Senator Mike Lee in the Washington Examiner here, "The conservative case for criminal justice reform."  Excerpts:

The problem today is not simply that penalties are too harsh or sentences too long — though in many cases they are.  The problem is that, over the past several decades, we have industrialized and bureaucratized our criminal, judicial and penal systems.

Which is to say, we've turned them into unaccountable, short-sighted, input-oriented, self-interested institutions — immune to common sense — that treat offenders as statistical cases rather than human beings.

For conservatives, criminal justice reform is not a venue for the airing of ideological grievances or the testing of fashionable theories.  It's about helping our communities stay as safe and secure as possible, while infringing as little as possible on the God-given, equal rights of all Americans and their pursuit of happiness.

It's about designing our laws, our court procedures and our prison systems on the basis of a clear-eyed and time-tested understanding of human nature — of man's predilection toward sin and his capacity for redemption — as well as an uncompromising respect for the fundamental dignity of the human person.  Criminal justice reform, properly understood, is an invitation for principled conservatism at its best.  Our bill expands judicial discretion, so judges can treat offenders like human beings, not statistics, and punish them according to their particular circumstances, instead of indiscriminate bureaucratic guidelines.

It broadens the federal "safety valve" — a provision that allows federal judges to sentence a limited number of offenders below the mandatory minimum sentence.

The bill also improves the quality of our federal prison system, so that we have fewer first-time offenders turning into career criminals. It will expand inmates' access to vocational training, therapeutic counseling and reentry services that help offenders who have fulfilled their sentences return to their families, their communities, and lawful, steady jobs.

Reforming our federal criminal justice system doesn't require us to avert our eyes from a person's crimes, or make excuses that blame someone, or something, else for the choices he made.  No, it requires looking squarely at the facts of the case, no matter how ugly or wicked; holding offenders directly and personally accountable for their crimes; and devising a punishment that fits both the crime and the criminal.

We do this all the time in our daily lives when we recognize the humanity of hating the sin, not the sinner.  It's called forgiveness.  Forgiving is not the same thing as excusing. Nor is it incompatible with punishment.

Forgiveness requires assigning blame and, when necessary, imposing punishments — which is to say forgiveness requires treating offenders as morally responsible individuals — as human beings who, like the rest of us, have the propensity for vice and for virtue, and who must be held accountable for their choice of one or the other.

We know that no man is without sin.  Now, we must remember — in our hearts and in our laws — that no man is without hope.  This is why I'm involved — and invite you to join me — in the conservative movement for criminal justice reform.

The two lines I will remember from the pieces are sure to be "There’s a fine line between leniency and levelheadedness," and "we must remember — in our hearts and in our laws — that no man is without hope."

Recent prior related posts on SRCA 2015:

October 5, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Sunday, October 04, 2015

"Toward Saner, More Effective Prison Sentences"

The title of this post is the headline of this New York Times editorial discussing the Sentencing Reform and Corrections Act of 2015 (SRCA 2015) introduced by US Senate leadership late last week. Here are excerpts:

The sentencing reform bill introduced in the Senate on Thursday falls far short of what is needed, but it is a crucial first step on the long path toward unwinding the federal government’s decades­long reliance on prisons as the answer to every ill....

Among the most significant are those that would reduce mandatoryminimum sentences for many drug crimes.  These sentences are jaw-droppingly long — from five years for a first offense up to life without parole for a third.  The new bill would cut the life sentence to a 25­year minimum, and would cut the 20­year sentence for a second offense to 15 years.

These may seem like minor tweaks to pointlessly long sentences, and for the most part they are.  But when half of all federal inmates are in for drug crimes, even small changes can make a real difference.

In addition, the bill would give federal judges more power to impose sentences below the mandatory minimum in certain cases, rather than being forced to apply a strict formula. This would shift some power away from prosecutors, who coax plea deals in more than 97 percent of cases, often by threatening defendants with outrageously long punishments.

Other provisions would give more inmates the chance to earn early release by participating in educational and other rehabilitative programming; seal or expunge juvenile records, so people are not burdened for life because of crimes they committed when they were young; and make it easier for older inmates to seek early release — a smart idea because they are by far the costliest to keep imprisoned and the least likely to commit new crimes.

Finally, and critically, many parts of the bill are retroactive, which means thousands of current federal inmates could benefit immediately.  In particular, 6,500 prisoners are still serving time under an old law that punished crackcocaine offenses far more severely than powder­cocaine offenses.  When the law was altered to reduce the disparity in 2010, the change applied only to new cases, leaving thousands of inmates serving unjustly long sentences for no good reason....

So much of American sentencing policy has been driven by irrational, fact­free scare­mongering.  This new bill would, at the very least, provide volumes of data that could show — as other legislative efforts have already shown — that it’s possible to reduce both prison populations and crime at the same time.

Recent prior related posts:

October 4, 2015 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Thursday, October 01, 2015

Can and should the US Sentencing Commission try quickly to help everyone take stock of the SCRA 2015?

I am about to go off-line for the afternoon in order to (try to) read closely the full text of the Sentencing Reform and Corrections Act of 2015 (SRCA 2015) which was introduced today by US Senate leadership.   The full bill, which runs 141 pages and is available at this link, has so many notable parts;  I am already struggling to figure out what is what and to assess the good, the bad and the ugly of what can be found in this massive legislative proposal.  Moreover, without some basic (and not-so-basic) data about how many past, present and future federal cases could be readily impacted by various provisions, it is hard to know which are the most consequential elements of the bill from just a basic reading to the SRCA text .

Ergo, the question in the title of this post, which jumped into my head as I started to think about what to think about SRCA 2015.  I am sure it would take a very long time for the US Sentencing Commission to do a comprehensive analysis of all that appears in the SRCA 2015.  But I suspect the USSC and its terrific research staff might be able to compose quickly one of its terrific "Quick Facts" publications to aid those of us trying to better figure out what needs still be to figured out about this massive bill.

Notably and fittingly, in the press event announcing the SRCA 2015, Senator Chuck Schumer astutely described the sentencing and prison reform problem as a kind of Rubik's Cube with lots of interlocking and moving parts.  I am sincerely hopeful the US Sentencing Commission will commit itself in the days ahead to helping all of us fans of federal sentencing reform better figure out whether and how the different-colored pieces of the proposed SRCA 2015 match up.

Today's prior related posts:

October 1, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5)

Basic elements of Sentencing Reform and Corrections Act of 2015

As I write this, I am watching (at this link) the tail end of speeches being given by a series of US Senators discussing their pleasure and thanks concerning the bipartisan agreement to propose the Sentencing Reform and Corrections Act of 2015 (which I will start calling SRCA 2015).  Here are links to two documents provided by the Senate Judiciary Committee summarizing what appears in this bill:

Here ais the full text of the summary document:

WOWSA!!  And the more detailed section-by-section analysis suggests that lots and lots of badly over-sentenced federal offenders subject to extreme mandatory minimum sentencing provisions in not-so-extreme cases (including folks I have represented or filed amicus briefs on behalf of like Weldon Angelos and Edward Young) might be able to get retroactive relief if this legislation becomes law!!  Thus, to summarize, just the introduction of SRCA 2015 is a huge development, and I strongly believe its provisions can will significantly reshape the federal sentencing and prison system if (and I hope when) it becomes law.

Though I will still need to see the precise text before I will be in a position to really assess all that appears in this bill, these summary documents confirm my hope that this bill was likely to be among the biggest and most ambitious federal sentencing reform efforts we have seen since the enactment of the Sentencing Reform Act more than three decades ago.  Mega-kudos to all involved, Senators and staffers and advocates of all stripes, and now let's see if all the good mojo that this SRCA 2015 represents might get this bill through the Congress in the coming weeks!!

UPDATE The full text of the SRCA runs 141 pages, and the folks at FAMM have it available at this link.

October 1, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

Bipartisan federal sentencing reform bill due to emerge from Senate today

In part because October is my favorite month, I am likley to remember that a potentially historic federal sentencing reform bill emerged from behind the Senate negotiating curtain on the first day of October 2015.  This New York Times article, headlined "Senators to Unveil Bipartisan Plan to Ease Sentencing Laws," previews some of what we should expect to see in the bill.  Here are excerpts:

A long-­awaited bipartisan proposal to cut mandatory prison sentences for nonviolent offenders and promote more early release from federal prisons is scheduled to be disclosed Thursday by an influential group of senators who hope to build on backing from conservatives, progressives and the White House.

The comprehensive plan, which has the crucial support of Senator Charles E. Grassley, the Iowa Republican who heads the Judiciary Committee, is the product of intense and difficult negotiations between Republicans and Democrats who hope to reduce the financial and societal costs of mass incarceration that have hit minority communities particularly hard.

The push has benefited from an unusual convergence of interests in an otherwise polarized Washington and has become a singular issue that usually warring groups have rallied around. Progressive advocacy groups have embraced the possibility of less jail time and better preparation for offenders when they are released; conservatives have championed the potential savings in reducing prison populations and spending on the strained criminal justice system.

According to those familiar with the still­-secret agreement, the legislation proposes an extensive set of changes in federal sentencing requirements. Those changes include a reduction in mandatory minimum sentencing to five years from 10 for qualified cases; a reduction in automatic additional penalties for those with prior drug felonies; and more discretion for judges in assessing criminal history.

The legislation would also ban solitary confinement for juveniles in nearly all cases, and allow those sentenced as juveniles to seek a reduction in sentencing after 20 years. Many of the new rules could be applied retroactively to people now serving time.

The authors also took steps to deny any new leniency to those who committed serious violent crimes or drug felonies. And the bill would put some new mandatory minimum sentences in place for those convicted of interstate domestic violence or providing weapons or other material to terrorists or certain countries.

Lawmakers hoping for more sweeping changes did not win the across­theboard reductions in mandatory minimum sentences they had sought when the negotiations began. They compromised to win the backing of Mr. Grassley, who in the past has been critical of broad efforts to reduce prison time.

If the authors wish to push the legislation through this year, it will require an aggressive effort and a decision by Senator Mitch McConnell, Republican of Kentucky and the majority leader, to make the measure a priority. The bill is most likely to be considered by the Judiciary Committee this month, with a committee vote possible on Oct. 22. Congressional consideration could also be kicked into 2016....

Backers of a criminal justice overhaul were not aware of the details of the legislative deal, which senators were trying to keep under wraps until the announcement Thursday, but they welcomed the movement toward getting the debate in the public arena.

“This sounds good to us,” said Mark Holden, general counsel for Koch Industries, which has led conservatives in calling for new sentencing laws and is part of the bipartisan Coalition for Public Safety. “It is a good place to start, and hopefully this will be the impetus that gets things moving.”  Holly Harris, the executive director of the U.S. Justice Action Network, another part of the coalition, noted that “the devil is in the details.”

I share the sentiments that this sounds like a pretty good deal and that the devil is really in the details. But, absent the details looking very ugly, I am going to be a vocal and aggressive advocate for this bill because it seems like the only federal sentencing reform proposal with any realistic chance of getting to President Obama's desk while he is still President Obama.

October 1, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Tuesday, September 29, 2015

Long-awaited bipartisan federal criminal justice reform bill to emerge from Senate this week

A helpful reader alerted me to this notable new NPR story headlined "Bipartisan Criminal-Justice Overhaul Proposal Expected As Soon As Thursday."  Here are the details: 

A bipartisan group of senators on the Judiciary Committee is preparing to unveil a criminal-justice overhaul proposal as early as Thursday, two sources familiar with the deal told NPR.  The plan follows months of behind-the-scenes work by the staffs of Sen. Charles Grassley, the Iowa Republican who chairs the committee, and several other lawmakers representing both political parties.

Senior members of the Obama administration, including the second-in-command at the Justice Department, also have been nudging senators on the sentencing plan, viewing the proposal as one of the capstones of a legacy on criminal-justice issues for this president. Barack Obama famously became the first sitting president to visit a prison in July.

An unusual left-right coalition formed earlier this year to drive action in Congress and in state houses across the country. The Coalition for Public Safety, which includes Koch Industries, the American Civil Liberties Union and others, is said to support the Senate plan, as well, a third source said.

The proposal will not go as far as some reform advocates may like, the sources say. For instance, the plan would create some tough new mandatory minimum sentences, after pressing from Grassley. It stitches together proposals that would allow inmates to earn credits to leave prison early if they complete educational and treatment programs and pose a relatively low risk to public safety along with language that would give judges some more discretion when sentencing non-violent offenders....

Despite the optimism among advocates and lawmakers, it's unclear whether the full Senate has the time to act before the presidential election intensifies. In the House, meanwhile, Reps. Bobby Scott, D-Va., and James Sensenbrenner, R-Wis., are pressing their own legislation, known as the SAFE Justice Act. The two leaders of the House Judiciary Committee, Chairman Bob Goodlatte, R-Va., and John Conyers, D-Mich., are writing their own bills, staff members said.

I am giddy with anticipation to see the specifics of this bill and I am cautiously hopeful that all the time spent working through the details will greatly increase the likelihood that a bill actually makes it through the Senate and perhaps all the way to the desk of Prez Obama.  As I have long said in this space and others, hopeful visions of "the best" possible reform should not stand in the way of any "good" reform that has a real chance of becoming law.  And since just about any reform emerging from a bipartisan deal is likely to have good elements, I am extra hopeful that this news means we getting ever closer to an improvement of existing federal sentencing law and policy.

September 29, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Is the "don't blame the drug war for mass incarceration" counter-narrative problematically incomplete?

As more serious folks have started to take the problem of modern mass incarceration more seriously, I see a couple key narratives about the problem and potential solutions emerging.  The predominant narrative, espoused by Michelle Alexander in The New Jim Crow and by long-time critics of the so-called "war on drugs," is that mass incarceration is principally a product of the drug war and its associated severe sentencing laws.  This narrative always struck me as a bit too simplistic and incomplete. 

Lately an important counter-narrative has taken hold: fueled by prison population data and prosecutorial practices stressed by John Pfaff and a few others, more folks are asserting that the drug war and its severe sentencing laws are not central to mass incarceration and that their reversal is not really a solution to the problems of mass incarceration.  This counter-narrative is today well-explained in this New York Times column by David Brooks.  Here are highlights:  

Pretty much everybody from Barack Obama to Carly Fiorina seems to agree that far too many Americans are stuck behind bars.  And pretty much everybody seems to have the same explanation for how this destructive era of mass incarceration came about.

First, the war on drugs got out of control, meaning that many nonviolent people wound up in prison. Second, mandatory­minimum sentencing laws led to a throw­-away-­the-­key culture, with long, cruel and pointlessly destructive prison terms....

The popular explanation for how we got here, however, seems to be largely wrong, and most of the policy responses flowing from it may therefore be inappropriate.  The drug war is not even close to being the primary driver behind the sharp rise in incarceration. About 90 percent of America’s prisoners are held in state institutions.  Only 17 percent of these inmates are in for a drug­-related offense, or less than one in five.

Moreover, the share of people imprisoned for drug offenses is dropping sharply, down by 22 percent between 2006 and 2011.  Writing in Slate, Leon Neyfakh emphasized that if you released every drug offender from state prison today, you’d reduce the population only to 1.2 million from 1.5 million.

The war on drugs does not explain the rocketing rates of incarceration, and ending that war, wise or not, will not solve this problem.  The mandatory-­minimum theory is also problematic.  Experts differ on this, but some of the most sophisticated work with the best data sets has been done by John Pfaff of Fordham Law School....

His research suggests that while it’s true that lawmakers passed a lot of measures calling for long prison sentences, if you look at how much time inmates actually served, not much has changed over the past few decades.  Roughly half of all prisoners have prison terms in the range of two to three years, and only 10 percent serve more than seven years.  The laws look punitive, but the time served hasn’t increased, and so harsh laws are not the main driver behind mass incarceration, either.

So what does explain it?  Pfaff’s theory is that it’s the prosecutors.  District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges.  Twenty years ago they brought felony charges against about one in three arrestees.  Now it’s something like two in three.  That produces a lot more plea bargains and a lot more prison terms.

I asked Pfaff why prosecutors are more aggressive.  He’s heard theories.  Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office.  Maybe the police are bringing stronger cases.  Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.

Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box.  He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.

Some politicians and activists suggest that solving this problem will be easy — just release the pot smokers and the low­-level dealers.  In reality, reducing mass incarceration means releasing a lot of once-­violent offenders.  That may be the right thing to do in individual cases, but it’s a knotty problem.

Generally speaking, the "don't blame the drug war for mass incarceration" counter-narrative makes important points and is an essential consideration for serious researchers and reform advocates. Pfaff's data highlights critical factual realities that fully justify the essential message that modern mass incarceration is, in Brooks' phrase, a "knotty problem."

But I fear that the counter-narrative is also too simplistic and incomplete as it fails to consider sufficiently how the the drug war and associated sentencing laws remain at the beating heart of the mass incarceration knot.  In my view, federal and state prosecutors were only able to become "more aggressive" in recent decades because the drug war and associated severe sentencing laws made their jobs much, much easier in various ways.  The relative simplicity of securing drug convictions (and of threatening severe sanctions for those who fail to plea and cooperate) has made it much, much easier for prosecutors to turn more arrests for drugs and many other crimes into many more charges and convictions.   (Tempered constitutional limitations on police, prosecutors and severe sentences through the Rehnquist Supreme Court era is also a part of this story, which I also think can and should be linked directly to the drug war.)

This chart has charging data for the federal system from 1982 to 2010, and it shows federal the number criminal cases commenced (i.e., when federal prosecutors brough charges) doubling from under 33,000 in 1982 to 67,000 in 2002.  During those two decades, the number of drug cases commenced jumped from 4,200 in 1982 to over 19,000 in 2002.  In my view, the drug war and severe federal sentences not only significantly accounted for why federal prosecutors had the ability/resources to bring 15,000 more drug cases in 2002 than in 1982, but it also significantly contributed to why federal prosecutors had the ability/resources to bring 15,000 more other federal criminal cases in 2002 compared to 1982.  I think we would see somewhat similar dynamics playing out in many states during this period, and the federal data further shows that once prosecutors got really good at bringing lots of charges thanks to the help of the drug war, they became consistently adept at bringing lots more of other charges even as the number of drug prosecutions started to level off.

I make these points not to contend that "ending the drug war" (whatever that means) and/or repealing all mandatory minimums will alone "solve" the problem of mass incarceration.  The counter-narrative remains very important in highlighting that modern incarceration levels in the US are a complicated matter requiring complicated solutions.  But I am now growing concerned that, especially as the counter-narrative grows in significance, serious researchers and reform advocates may sometimes under-appreciate how critical the drug war and associated sentencing laws have been as the source of many troublesome elements in the growth of criminal justice expenditures and significance over the last four decades.

September 29, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Friday, September 25, 2015

How might House speaker John Boehner's resignation announcement impact prospects for federal sentencing reform?

The question in the title of this post was my first reaction to this remarkable and unexpected news via Politico

Speaker John Boehner, who rose from bartender's son to the most powerful man in Congress, will retire at the end of October, ending a tumultuous five-year tenure atop the House of Representatives.

Boehner, 65, planned to leave Congress at the end of 2014, one of his aides said Friday morning, but returned because of the unexpected defeat of Eric Cantor.

"The Speaker believes putting members through prolonged leadership turmoil would do irreparable damage to the institution," the Boehner aide said. "He is proud of what this majority has accomplished, and his speakership, but for the good of the Republican Conference and the institution, he will resign the Speakership and his seat in Congress, effective October 30."...

Boehner came into power on the power of the 2010 tea party wave, but it was that movement that gave him the most problems. Boehner's tenure will be remembered for his internal political battles, but also his complicated relationship with President Barack Obama. He and Obama tried — but repeatedly failed — to cut a deal on a massive fiscal agreement. But Boehner has had some significant victories, including the free-trade deal that Congress passed this year, and changes to entitlement systems....

Boehner's decision, relayed in a closed Republican meeting Friday morning, will set off one of the most intense leadership scrambles in modern Congressional GOP politics. Second in line is House Majority Leader Kevin McCarthy (R-Calif.), who is widely expected to serve as the next speaker. But there is serious unrest in the House Republican ranks, as a small clutch of conservatives have continuously clashed with more establishment Republican types. But it is unclear if any of these figures can win a leadership election.

Of course, the easy answer to the hard question in the title of this post is "it depends." As regular readers know, the younger, more conservative and libertarian-leaning members of Congress within the GOP have generally been more supportive of federal sentencing reform than older establishment GOP officials. Thus, I think the prospects for federal sentencing reform could grow a bit brighter with new blood in the speaker seat.

Then again, any power struggle for leadership positions in the House is almost sure to take time and attention away from other legislative duties.  And diverted attention likely means any existing and future federal sentencing reform bills will have a hard time getting to and through a full vote in the House (and perhaps also the Senate).

September 25, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Former prosecutors' provocative pitch for preserving tough federal drug mandatory minimums

This new commentary authored by J. Douglas McCullough and Eric Evenson, two former North Carolina federal prosecutors, makes notable arguments against reform of federal drug sentencing statutes. The piece is headlined "Keep drug sentencing laws to keep communities safe," and here are excerpts:

The U.S. Senate is finalizing a criminal reform bill that will alter federal drug trafficking laws. Changes center on the mandatory minimum sentencing requirements which have been a key part of federal laws for more than 30 years. As former federal prosecutors, with more than 40 years combined experience, we have seen first-hand the benefits of mandatory minimum sentencing when properly used as a tool in the fight against drug traffickers. We urge Congress to leave this tool intact.

Many of our drug laws were passed by Congress in the 1980s, in response to a growing drug epidemic. These laws, which included mandatory sentences based on drug quantity and criminal history, were part of reform designed to rescue cities from the grip of drug traffickers and the danger it caused to our most vulnerable citizens. Congress correctly recognized that this goal could only be accomplished if sentences were tough for those controlling the distribution of drugs. Incentives were created for lower-level participants to provide evidence against higher-level traffickers in the form of a companion reward for testimony against other traffickers. Tough sentences were designed to remove the worst offenders from our communities; the opportunity to provide evidence in return for a lower sentence mitigated the effect of those sentences for those willing to help investigators get to the leaders of the drug organizations.

In our own district (which include cities, as well as rural areas) we saw crime rates decline, neighborhoods were revitalized, and violence was reduced. As we interviewed hundreds of drug traffickers who decided to provide testimony against higher-level traffickers, they revealed they were motivated to do so in large part by the significant sentences they faced.

Without tough sentencing standards for traffickers, we could not have obtained their testimony and obtained convictions against the large-scale traffickers. We saw our work as a “war on drug traffickers” with the goal of elimination of the traffickers from our communities. We sought cooperation and made appropriate recommendations for lower sentences for those who provided truthful testimony against major traffickers. We viewed the drug users as “victims” of drug traffickers. Drug trafficking produces two things: addicts, with ruined lives, and illegal profits for major drug traffickers.

The vast majority of drug traffickers — those we brought to federal court — were not drug users. They sold drugs because of greed. They were sentenced because of their large-scale distribution, and/or for the use of firearms as part of their activities. Those who argue that federal prisons are full of low-level drug users are simply wrong.

Drug trafficking spawns many other types of crime: gun violence, murder, theft, prostitution, and more. When a drug trafficker sets up his stronghold in a neighborhood, the whole community feels the effects. Many of the community’s most vulnerable citizens — those with limited means — can’t leave their crime-infested areas. They become trapped in the hellish world created by the drug traffickers....

Opponents of mandatory sentencing claim that these sentences are racist, unfair and expensive. That is not true. Mandatory sentencing has helped to rescue communities of color from drug traffickers; mandatory sentencing is equally applied to all drug traffickers, regardless of race, gender and economic status; and, the cost of long prison sentences is minor when compared to the lives saved and the communities rescued as the result of their imposition.

Instead of eliminating mandatory prison terms, why not institute meaningful reforms that will get to the root cause of drug trafficking? The majority of incarcerated drug traffickers we have interviewed were younger men who were the product of fatherless homes. The father is the first example of law and order for a young man. The breakdown of family has done more to lead to our drug epidemic than perhaps any other single cause.

Let’s focus on the causes of family breakdown, and the resulting failure to teach/instill good character in our young people. Public schools could offer character instruction. Religious institutions must be involved in teaching character and family/parental skills. For those serving long sentences, there should be an opportunity for rehabilitation, and to earn sentence reduction. Prisoners need to be taught work skills and character development that was largely overlooked in their earlier years.

Weakening our federal sentencing laws against drug trafficking, though frequently well intended, is naïve, counterproductive, and will adversely affect the communities to which drug traffickers will more quickly return.

Intriguingly, while making the case for preserving federal drug mandatory minimum statutes, these former prosecutors are also making the case for some of the back-end reforms currently being considered by Congress when they advocate for federal prisoners having an "opportunity for rehabilitation, and to earn sentence reduction." Also, I find it interesting that these authors assert that the breakdown of the family best accounts for drug problems and yet they do not acknowledge the role of the drug war in contributing to family disruptions.

September 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Thursday, September 10, 2015

Is Donald Trump's bluster hurting the cause of federal sentencing reform?

The question in the title of this post is prompted by this notable lengthy new TPM piece sent to me by a helpful reader and headlined "How Donald Trump Threatens To Blow Up Bipartisan Criminal Justice Reform." Here are excerpts:    

A long-awaited, hard-fought criminal justice reform push is coming to Washington this fall, with lawmakers of both parties making progress on legislation to curb mass incarceration. But after spending years convincing lawmakers that tackling the issue of mass incarceration would not make America more dangerous or put their political careers in jeopardy, advocates are now watching with growing dread as the GOP primary veers back toward the usual tough on crime rhetoric.

Just a few months ago, reformers were celebrating that most of the 2016 GOP pack had signaled that, at least in theory, they supported retooling America's justice system. But, as has been the case with so many other sensitive issues, the entrance of Donald Trump has changed the dynamic. Now instead of talking about criminal justice reform, the GOP primary contenders are warning of a supposed nationwide crime spike, touting the mandatory-minimums in "Kate’s Law," and lobbing “soft on crime" accusations.

“I’m concerned about the impact on the push for justice reform because we’re expecting a bill at some point this month,” Jason Pye, director of Justice Reform at the conservative FreedomWorks, told TPM. “I’m concerned about the impact of the rhetoric on that.”

Trump may not solely be to blame for the shift in tone. But in interviews with TPM before his entrance in to the race, justice reform advocates expressed cautious optimism that the GOP field had more or less coalesced around curbing mass incarceration, and they believed it was unlikely to become a flashpoint in the primary.

Trump may have conflated the issue, they now contend, by linking illegal immigration and violent crime, thus prompting many of his rivals to take harder lines, too. Coupled with warnings of a summer crime spike, the campaign trail has taken a turn back to the ‘90s, with candidates falling into old patterns of invoking crime fears to rile their constituencies.

“For the most part these candidates aren’t talking about these issues right now, it’s largely focused one person and we know who that person is, for better or for worse,” said Pye of FreedomWorks, the major DC advocacy outfit with Tea Party roots that plays an important role in pushing criminal justice reform from the right....

Last week, Trump released an ad attacking former Gov. Jeb Bush that critics said echoed the notorious Willie Horton ad that Bush's father used against Michael Dukakis in the 1988 presidential race.  The ad flashes the mugshots of undocumented immigrants charged or convicted of murder over Jeb Bush's infamous immigration is an "act of love" comments, and ends with placards saying "Love? Forget Love. It's Time Get Tough!" Bush's spokesperson responded by calling Trump a "soft on crime liberal."

“They look like tweedledum and tweedle dumber in terms of this very retro style of exploiting these old arguments,” liberal justice reform leader Van Jones said in an interview with TPM last week, referring to the Trump and Bush spat.

Meanwhile, conservatives have taken a harsh line on Black Lives Matter, a movement that includes calls for overhauling law enforcement and justice policies. Led by Fox News, conservatives have accused the protest movement, without basis, of inciting violence against police officers.  Trump accused Black Lives Matter this week of "looking for trouble” and suggested they were being "catered to" by Democrats.

The rhetoric has spread beyond Trump, which is of particular concern to criminal justice reform advocates. A few high-profile police deaths have prompted candidates like Sen. Ted Cruz (R-TX) and Wisconsin Gov. Scott Walker (R) to blame the Obama administration for, as Walker put it, “a tendency to use law enforcement as a scapegoat.” New Jersey Gov. Chris Christie (R) has called for the return of stop and frisk, vowed to crack down on marijuana legalization, and blamed “liberal-leaning mayors and cities” and their “lax criminal justice policies” for the stabbing death of a former intern in Washington, D.C.

“There are two things that are troubling,” said Inimai Chettiar, director of Justice at the Brennan Center. “One, that people are saying that there is a crime wave now and they’re implying that crime is going to be going up as a permanent trajectory -- which is wrong -- and that second people are blaming criminal justice policies and particularly policing policies for this.”...

Already, balancing the various concerns of those interest groups was a delicate dance for lawmakers hammering out federal legislation.  But heated campaign claims -- be it about Black Lives Matter, undocumented immigrants or police fatalities -- isn’t helping to smooth over tensions....

Nevertheless, Senate advocates for reform insist legislative progress can be made despite the campaign trail rhetoric. “There’s been heated rhetoric for decades around justice reform,” said Ben Marter, a spokesman for Sen. Dick Durbin (D-IL), who is involved in crafting the anticipated compromise bill.  “But the senators negotiating this legislation have put their partisan differences aside to negotiate a solution in good faith.”

Likewise, advocates are hopeful the most ardent justice reformers in the GOP field will resist relying on such language.  “I would get worried if suddenly other candidates less desperate and flailing than Governor Bush started jumping on that bandwagon,” Jones said.

But the proposal known as Kate’s Law shows how easily legislative progress can be undercut by the kind of the knee-jerk reactions to sensationalized tragedies that contributed to the creation of mass incarceration policies in the first place. The legislation, inspired by Steinle's murder, would impose mandatory sentencing minimums on undocumented immigrants who return to U.S. after being deported and, according to Families Against Mandatory Minimums, would add nearly 60,000 people to the federal prison population.

Trump has made Steinle’s murder a focal point of his campaign (despite the desires of her family), and conservative media have fanned the flames. Cruz -- who has previously touted his interest in criminal justice reform -- has embraced the measure, while other candidates have also expressed support. So far, cooler heads in Congress have prevented Kate’s Law from gaining traction there. “Watching Kate’s Law unfold is like watching history repeat itself,” FAMM government affairs counsel Molly Gill told TPM, comparing it to 1986 drug overdose by college basketball star Len Bias that led to federal mandatory drug sentencing. “We’ve come a long way in the last 30 years in our understand of crime and recidivism and using evidence-based approaches. But a lot of times we’re still legislating like that never happened."

​For years, criminal justice reformers have labored to convince politicians that dismantling ‘80s and ‘90s era crime legislation -- through cutbacks on mandatory minimums or softening of drug laws -- will not making them look “soft on crime.” The best proof they had was the success of a number of state lawmakers -- especially in red states -- in curbing mass incarceration without facing political consequences. They have also had to do this working within a tenuous coalition balancing competing priorities. “With consensus around criminal justice reform from both sides of the aisle that hasn’t been seen for a generation, it would be a shame for presidential candidates to undermine this by exploiting negative imagery and stereotypes for mere political gain,” said Janai Nelson, associate director-counsel of the NAACP Legal Defense and Educational Fund, in a statement to TPM.

September 10, 2015 in Campaign 2016 and sentencing issues, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (8)

Tuesday, September 08, 2015

Highlighting headwinds for federal sentencing reform in coming critical period

Over at Crime & Consequences, Bill Otis has this extended new post headlined "The Biggest Obstacles Right Now to Sentencing 'Reform'."  The post provides a five-point account of recent developments enhancing the (always uphill) battle for significant federal sentencing reform, and here is how the post gets started:

From late spring through about the end of July, it was my sense that some kind of fairly significant sentencing "reform" bill was going to make more headway in this Congress than in the last, and conceivably could pass. More members of the majority party had expressed an openness to it than we had seen in the last Congress.

Probably the first sign of trouble was when the sentencing "reform" bill that had been promised before the August recess never showed up. I expect that one (or several) will show up now, but their content and their prospects for passage seem diminished from what they had been just six weeks ago.

As a former DOJ political appointee, Bill Otis has long been much more of an inside-the-Beltway player than I ever will ever be, and I surmise he still has considerable connections with establishment GOP leaders in Congress.  Consequently, his latest prognostications here strike me as important as we all anticipate Senator Charles Grassley unveiling, perhaps as early as today as previewed here, a (big?) new sentencing reform bill that may be the one most likely to have a real chance to get to the President's desk in some form.

Even though Bill's sentencing analysis is sometime subject to sharp criticism (as recently noted here), I think his posts about sentencing reform arguments and prospects alway provide a useful reminder of how many different kinds of political and policy arguments can be made against changing the status-quo of tough-and-tougher sentencing.  Most fundamentally, when crime is in decline, Bill and others will be quick to say we should not risk changing what seems to be working; when crime seems to be spiking, Bill and others will be quick to say we should not risk going soft now.

Some prior related posts:

September 8, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Thursday, September 03, 2015

Julie Stewart of FAMM goes hard after Bill Otis for being "proven wrong time and time again"

Regular readers know I often note and express respect for the work and writings of both former federal prosecutor Bill Otis, who now writes most regularly at Crime & Consequences, and Julie Stewart, who is the President and Founder of Families Against Mandatory Minimums.   Today I must note and express amazement at the concerted efforts of one of these two taking on the other: Julie Stewart has this notable new Reason commentary headlined "The Former Prosecutor Who Consistently Gets Criminal Justice Reform Wrong: Former prosecutor Bill Otis has been mistaken over and over again when advising legislators against reducing drug sentences."  Here are excerpts mostly from the start and end of the piece:

No one expects our elected representatives to be experts in every area of public policy. At the same time, we have every right to expect that our representatives will consult policy analysts and experts who know what they're talking about, not someone who has been proven wrong time and time again. In the world of criminal justice, that someone is former federal prosecutor and Georgetown Law adjunct William Otis.

Over the past two decades, Bill Otis has become the Paul Ehrlich of criminal sentencing reform.  He is always certain in his convictions and nearly always wrong.  Moreover, like Ehrlich, Otis likes to scare the public with predictions of certain and impending doom, and he is immune to feelings of embarrassment or humiliation despite being proven spectacularly wrong over and over again....

[W]hereas Ehrlich saw overpopulation as the culprit, Otis thinks shortening sentences for nonviolent drug offenders will be America's undoing.  Indeed, every time Congress or the U.S. Sentencing Commission has considered even mild sentence reductions over the past two decades, Otis has gone full Chicken Little.  He has been wrong every time....

The nationwide drop in crime and prison crowding should be celebrated.  Less violent crime means fewer murder victims, fewer robbery victims, and fewer assault victims. Smaller prison populations means savings for taxpayers and more money to spend on what actually does reduce crime — community policing and supervision practices like "short, swift, and certain."  None of these gratifying results would have been possible if Otis's theory were correct — or if any lawmakers outside the Beltway had heard of Otis and took his views seriously.  While Otis has been consistently wrong, thankfully lawmakers have ignored him....

Committed to his prison-is-always-the-answer ideology, Otis derided the [Fair Sentencing Act], saying it should be called the "Crack Dealers Relief Act."  When the U.S. Sentencing Commission lowered the crack guideline and made it retroactive in accord with the FSA, Otis predicted it would lead to an increase in crime....  On his blog, Otis cranked up the fear machine. He predicted "misery" when "thousands of crack dealers" would be "put back on the street prematurely" to terrorize their communities.

Fortunately for those of us concerned about public safety, Otis was wrong again — amazingly wrong.  Since passage of the FSA, the crime rate, the prison population, and crack usage are all down!  It bears repeating.  Otis said the changes would cause "misery" and "inevitably lead to more crime."  Instead, while thousands of offenders have received fairer sentences, the crime rate has fallen, crack use is down, and taxpayers have saved millions from being wasted on unnecessary prison costs....

Otis is impervious to facts and evidence.  He will quote Professor Steven Levitt's finding that greater reliance on incarceration helped reduce crime in the 1990s and then ignore Levitt's later conclusion that the country has gone too far and that prisons should reduce their populations by one-third.  Otis will say, as he does in National Review, that the movement for sentencing reform "is strictly interest-group — and billionaire — driven, inside-the-Beltway," which would be fine if you did not already know that the reform movement began in the states and is being promoted in Washington, DC by insiders like Senators Ted Cruz (R-Tx.), Rand Paul (R-Ky.), and Mike Lee (R-Utah).

Otis's amazing record of wrongness would be interesting and perhaps even funny if he, like fellow fear-peddler Paul Ehrlich, were exiled from the world of rational public policy making.  But media reports have suggested that some members of Congress actually listen to Otis.  If that's true, then we really do have a good reason to be scared.

Yowsa.   Because I consider both Julie Stewart and Bill Otis to be personal friends, I am going to be trying hard to stay out of this sentencing sparring.  But I am also going to try to report fairly on any rounds of this fight, and thus will be quick to post any response that Bill Otis provides in his own defense in the days ahead. 

UPDATE:  Bill Otis has a response up at Crime & Consequences: Are Sentencing "Reformers" Getting Worried?.  Here is a snippet from Bill's introduction to his brief substantive refutation of points made by Julie Stewart:

I think it unbecoming and unwise to get caught up in this sort of thing.  If you hold a controversial position, you can expect some heat.  And if you spend all your time answering your critics, you'll never do anything else.  You'll certainly abandon any hope of making your own points. Accordingly, with the exceptions noted below, I am not going to engage with Ms. Stewart. (If she seeks a live debate with me, that would be another matter).

I'm quite sure she is sincere. But, for reasons stated in hundreds of things I have said on this blog and elsewhere, I believe she is in error.

September 3, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, National and State Crime Data, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22)

Tuesday, September 01, 2015

Previewing the latest (and most important) bipartisan federal statutory sentencing reform effort in Congress

ImagesAs regular readers know, September is the month that a (long-forecast) important new federal sentencing reform bill has become likely to emerge from the US Senate.  This new Daily Signal article, headlined "Bipartisan Group of Senators Set to Announce Deal to Reduce Prison Population," which reports that this bill is going to be unveiled a week from today, provides an account of what we can expect to see in this bill.  Here are excerpts:

Soon after lawmakers return to Washington, D.C., on Sept. 8, a bipartisan group of members on the Senate Judiciary Committee is expected to announce a deal meant to relieve the overcrowded federal prison population.

The bill, which is still being written and near completion — according to Beth Levine, a spokeswoman for Judiciary Committee Chairman Chuck Grassley — would give judges more discretion in sentencing offenders of certain nonviolent drug crimes and let well-behaved inmates earn time off their prison terms.

“They want to announce a deal as soon as they get back, but they just aren’t quite there yet,” says Conn Carroll, the communications director for Sen. Mike Lee, a committee member and leading reform advocate. “Let’s just say it’s first and goal on the one, everyone thinks we’ll score, we just don’t know when,” Carroll continued.

The legislation, the result of months of negotiations, will likely incorporate policies from previously introduced legislation in both houses of Congress.

The judiciary committee’s compromise bill is not expected to include reductions to mandatory minimums that are blamed for mass incarceration. Mandatory minimums require binding prison terms of a particular length and prevent judges from using their discretion to apply punishment. But the legislation is expected to give judges some leeway in sentencing drug offenders....

A new Pew study, using data from the Federal Bureau of Prisons, reveals that there are more than 207,000 inmates in federal prisons, and 95,000 of those inmates are incarcerated for drug-related offenses — up from fewer than 5,000 in 1980.

The jump in the number of inmates has cost a lot of money. From 1980 to 2013, federal prison spending increased 595 percent, from $970 million to more than $6.7 billion. According to the study, prison spending now represents one of every four dollars spent by the U.S. Justice Department. The report says growth of the prison population, and the longer drug sentences, can be pinned on a tough-on-crime mentality that dominated the 1980s.

Reform advocates say these policies — such as laws passed by Congress enacting mandatory minimum sentences of five, 10, or 20 years for drug offenders, and abolishing parole for federal offenders — have outlived their usefulness and need to be revised.

“The question really boils down to, has Sen. Grassley come to recognize mandatory minimums are a policy failure?” says Alison Holcomb, the director of the ACLU’s Campaign for Smart Justice. “Whether the bill is worth all the time and effort of the negotiations depends on a large part to the answer to that question.”

Grassley, as the judiciary committee chair, is the gatekeeper of the talks. Experts such as Holcomb say Grassley is opposed to across-the-board repeal of mandatory minimum sentences. “The real question of this bill is, how far can Grassley go?” says Molly Gill, the government affairs counsel for Families Against Mandatory Minimums, a nonprofit. “There’s a lot of pressure to do something significant. Is Grassley’s definition of significant close to everyone else’s? There becomes a certain point where you ask, is this real reform?”

Though Grassley’s office won’t share the exact details, the bill is expected to address a “safety valve” law that’s supposed to keep people from receiving unfair sentences.

Under the law, a federal drug offender can avoid a mandatory minimum sentence if he passes a five-part “safety valve” test. A convicted felon can be sentenced below a mandatory minimum if he was not a drug leader or “king pin,” he did not use or possess a gun during the offense, the offense is nonviolent, he was truthful with the government, and he has little or no other criminal activity on his record.

Reform advocates argue that even the most minor criminal history, such as being convicted for possessing a small amount of marijuana as a juvenile, can make an offender ineligible for the safety valve exception. The Senate Judiciary Committee bill may make the criminal record aspect of the safety valve more forgiving. It may also create a new loophole to get around mandatory minimums.

In addition, the legislation will include elements of a separate bill, the Corrections Act, authored by two senators of the judiciary committee: John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I.

That bill would allow certain well-behaved prisoners to earn time off their sentences by participating in recidivism reduction programs such as drug counseling and vocational training. The judiciary committee bill won’t be as comprehensive as the House’s SAFE Justice Act, sponsored by Reps. Jim Sensenbrenner, R-Wis., and Bobby Scott, D-Va., which would narrow the range of offenders that mandatory minimums apply to. Some members, like Grassley, think that reform plan is too far-reaching.

“Although there is clearly bipartisan support for a number of these proposals, [this] is a difficult issue,” says John Malcolm, the director of The Heritage Foundation’s Meese Center for Legal and Judicial Studies. “Some believe our current sentencing regime is unfair and the pendulum has swung too far in terms of imposing harsh sentences,” Malcolm continued. “Others believe increased incarceration and harsh sentences have taken some very dangerous people off of the streets. I remain cautiously optimistic there is some ‘sweet spot’ where both sides can compromise.”

Whatever the final product looks like, all sides are optimistic that Congress will give Obama a criminal justice reform bill to sign this year — because too many people are waiting. “The American criminal justice system has gotten has so far out of whack, with far too many people behind bars for too high a price,” Holcomb said. “The cold hard fact that people across the aisle can agree on is that America is better than this.”

I am pleased that some key details of the sentencing reform bill most likely to get to Prez Obama's desk are emerging, and I am not surprised that Senator Grassley is more interested in pursuing expanded exceptions to current federal mandatory minimums rather than across the board cuts to any current mandatory minimum. At the same time, I am concerned (but again not suprised) that advocates of federal sentencing reform are worried that this latest bill which has Senator Grassley's blessing is not going to be as far-reaching or impactful as other bills that have been making the rounds.

As a general matter, I favor a federal sentencing world without any crude and strict mandatory minimums terms for any non-violent crimes. But, especially now that we have had two-plus years of talk about statutory sentencing reform and nothing at all that has made it through Congress, I am hopeful all reform advocates will get on-board with whatever comes out of the Senate later this month. Especially with growing talk about violent crime increases in some cities and with sound-bite presidential campaigns now dominating the broader political conversation, I think the window for any meaningful federal sentencing reforms emerging from Congress is already starting to close. If visions of the "best" or even the "really good" prompt criticisms of any bill that has a real chance of passage, we could well end up with no bill making it through Congress at all.

Some prior related posts:

September 1, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Saturday, August 29, 2015

"Federal Drug Sentencing Laws Bring High Cost, Low Return"

The title of this post is the title of this notable new Pew Public Safety Performance Project Issue Brief, which gets started this way:

More than 95,000 federal prisoners are serving time for drug-related offenses—up from fewer than 5,000 in 1980. Changes in drug crime patterns and law enforcement practices played a role in this growth, but federal sentencing laws enacted during the 1980s and 1990s also have required more drug offenders to go to prison— and stay there much longer—than three decades ago. These policies have contributed to ballooning costs: The federal prison system now consumes more than $6.7 billion a year, or roughly 1 in 4 dollars spent by the U.S. Justice Department.

Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.

August 29, 2015 in Data on sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, August 28, 2015

Despite copious reform talk, big and tough federal drug sentencing system churns on

ChartAs regular readers know, talk of federal sentencing reform, especially drug sentencing reform, has been all the rage in recent years.  And yet, as this new report from the US Sentencing Commission details, in the last fiscal year, the federal criminal justice system still sentenced tens of thousands of drug offenders to hundreds of thousands of years of federal imprisonment.

The new report, titled excitingly "Overview of Federal Criminal Cases, Fiscal Year 2014," actually reports a decline in the overall number of federal criminal case sentences in the last fiscal year.  But this overall decline was driven mostly by a significant decline in immigration cases.  Here are some snippets from the report which highlight some of modern federal sentencing trends:

The number of individual offenders sentenced each year grew steadily after the Commission began reporting sentencing data in 1988, reaching a high of 86,201 individual offenders sentenced in fiscal year 2011.  Since then the number of cases has decreased each year.  In fiscal year 2014, the number of individual offender cases reported to the Commission fell by 4,199 (5.2%) cases from the previous year to 75,836.  Since fiscal year 2011, the number of these cases has declined by 12.0 percent....

Drug cases have traditionally been the most common federal cases.  However, beginning in fiscal year 2009, the number of immigration cases steadily increased, reaching a high of 29,717 such cases in fiscal year 2011.  That year immigration cases were the most common offense in the federal system....  In fiscal year 2014, 24,011 drug cases were reported to the Commission, accounting for 31.7 percent of all cases. Most of these cases involved drug trafficking offenses.  That year there were 22,238 immigration cases, accounting for 29.3 percent of the total federal caseload that year....

Several factors affect the average prison sentence for drug offenders, including statutory mandatory minimum punishments, the quantity of the drugs involved in the case, the prior criminal history of the offender, and whether the offender assisted the government in the investigation of his or her crime and other crimes.

For more than 20 years, crack cocaine offenders have been the most severely punished, however the length of imprisonment imposed in these cases has decreased steadily since 2007.  In fiscal year 2014, the average imprisonment for drug crimes involving crack cocaine was 93 months of imprisonment (with a median sentence of 72 months).  This compares to a high of 129 for these offenders in fiscal year 2007.  Methamphetamine offenders are the next most severely punished drug crimes, with an average length of imprisonment of 88 months (and a median sentence of 70 months).  Marijuana offenders have the lowest average imprisonment at 36 months (with a median sentence of 24 months)....

Mandatory minimum penalties enacted by Congress play a large part in determining the sentence for drug offenders, either outright or through the impact of these statutes on the structure of the guidelines.  In fiscal year 2014, half of all drug offenders were convicted of an offense carrying a mandatory minimum penalty, however, this proportion was the lowest it has been since the Commission began reporting data about mandatory minimum penalty application in 1993.  The portion of drug cases carrying a mandatory minimum penalty in fiscal year 2013 was 62.1 percent.  This significant reduction was due, in large part, to a change in the policy of the Department of Justice as to how to charge drug cases.

In fiscal year 2014, powder cocaine offenders and methamphetamine offenders were convicted of an offense that provided for the imposition of a mandatory minimum sentence at the highest rates — 65.4 percent in powder cocaine cases and 61.8 percent in methamphetamine cases.  Mandatory minimum penalties were least common in drug cases involving “other” drugs (mostly prescription drugs) and marijuana, accounting for 4.3 percent and 33.2 percent, respectively, of those cases.

These data highlight that DOJ's new charging policies have a measurable impact of the operation of the federal sentencing system. But that change did not dramatically alter the modern annual pattern of more than 125,000 cumulative years of future federal prison time being imposed on all federal drug defendants. All those years, at a conservative average taxpayer cost of $30,000 per year, means just federal drug sentencing in 2014 served to commit nearly $4,000,000,000 in future federal taxpayer funds to incarcerating those drug defendants sentenced over the last USSC fiscal year.

August 28, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Tuesday, August 25, 2015

"Federalism in Action: How Conservative States Got Smart on Crime"

Freedomworks-logo_0The title of this post is the title of this notable new paper authored by Jason Pye from the conservative group FreedomWorks.  Here is how the relatively short white-paper concludes:

Conservative states have led the way on justice reform over the last decade. By changing the culture of corrections through sentencing reforms that limit mandatory minimum prison terms to the most serious offenders and rely on treatment as an alternative to incarceration, rehabilitative programs for those who do serve time, and continued assistance when offenders reenter society, lawmakers have reduced recidivism, made communities safer, and saved taxpayers money.

The results from conservative states — these laboratories of democracy — are key as members of Congress look for ways to deal with the federal corrections system, which has seen explosive population and cost growth of its own since 1980. This is federalism in action. Through sentencing reforms and a focus on treatment as an alternative to incarceration, the federal government can lessen the cost-burden on taxpayers by using the lessons from the states to get smart on crime.

Conservatives have embraced the justice reform movement, and they should continue to do so. While passed with the best of intentions, the policies of the past have proven unsustainable, both in terms of the fiscal cost and the negative impact on poor and minority communities. The model that conservative states have provided fundamentally changes the nature of the approach. Punishments are, of course, still meted out by courts, but the sentences given offer a means for offenders to alter the direction of their lives.

One such example is a woman named Sarah Gilleland, whose story was told by Gov. Nathan Deal in a joint session of the Georgia General Assembly in January 2012. “Sarah was a drug addict. The drug use that began as recreation resulted in a destructive cocaine and methamphetamine addiction. It took control of her life. At one point, she had no means of transportation, she lost custody of her little girl, she wound up homeless,” Deal explained. “But I mention Sarah tonight because she exemplifies many of the goals we hold for our corrections system.”

“Under the supervision of a drug court, piece-by-piece, she began rebuilding her life. With help, she beat addiction, she won back her daughter, she is now a sponsor helping other women who face the same trials, and because she provides a powerful example of hope and redemption, I have asked her to join us in this chamber tonight,” he said, pointing to Sarah in the gallery of the chamber.

“Sarah was given a shot a better life and she took it. Her story is not the exception, it is playing out all across Georgia as people reclaim their lives through the work of accountability courts.”

“That is why we must focus on transforming our corrections system into a last resort of opportunity—a place where low-level offenders are reclaimed and restored to society as functioning members of the community—working to support their own families and paying taxes,” he added.

Compelling stories such as this are not just told in Georgia, they are also told in other states that have adopted conservative justice reforms that focus on rehabilitation, rather than incarceration. And as more states and the federal government adopt the effort, more prison space will be reserved for the worst offenders in society, while those who have demonstrated a willingness to change their lives become productive citizens.

August 25, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Friday, August 21, 2015

"Who Built Prison America? Not Ted Kennedy"

Regular readers may recall a couple posts earlier this year (here and here) noting a fascinating book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America.  Interestingly, Ron Weich, a prominent former staffer for Senator Ted Kennedy has this new commentary at The Crime Report (with the same headline of this post) asserting it is wrong to lay blame on Senator Kennedy for modern mass incarceration.  Here are excerpts:

One of Kennedy’s most far-reaching bipartisan accomplishments was the Sentencing Reform Act of 1984.  Yet this law serves as Exhibit A for Professor Murakawa’s theory that liberals bear responsibility for the failed criminal justice policies of that era.  She blames the sentencing guideline system established by the Act for contributing to mass incarceration and accuses Sen. Kennedy of advancing unduly punitive policies....

Murakawa has harsh words for all who supported the 1984 Act, but she singles out Kennedy for special criticism.  She decries the fact that the man she calls “the liberal lion of the Senate” included in the law various “carceral” elements such as the abolition of parole and a reduction in the availability of good-time credits for prisoners.  She tracks changes in the sentencing bills Kennedy introduced from 1977 to 1984 and argues that his bills became increasingly punitive.  She regards Kennedy as a “hard test case for my claim that Democrats aided, abetted, and legitimized a punitive law and order regime.”

The first flaw in the Murakawa book is its subtitle: How Liberals Built Prison America. No fair observer of criminal justice policy could conclude that liberals -- or conservatives or Democrats or Republicans -- bear sole responsibility for the spike in incarceration over the past half century. Rather, these disastrous criminal justice policies were a bipartisan misadventure that reflected the nation’s anger and fear about crime.

Every crime bill enacted by Congress in the 1980s and 1990s passed with broad bipartisan majorities and the support of leaders from both political parties.  Only a handful of liberal House Democrats sometimes voiced concern.  The Senate often passed crime bills by unanimous consent.

It is certainly fair to criticize Kennedy and other liberals for supporting bad crime bills. But they did not build “Prison America” by themselves, as the subtitle of Murakawa’s book unfairly suggests.

Murakawa’s narrative also fails to appreciate the complex collaborative nature of the legislative process.  She attributes to Kennedy personally the flaws she perceives in his bills. Yes, he was a lead sponsor of the Sentencing Reform Act, but he did not write the law in a vacuum.  The bill’s text is the product of years of negotiations with [Strom] Thurmond and many other members of the Senate, as well as committee markups and floor debates.

Murakawa acknowledges, but does not emphasize, the huge influence of the Justice Department in shaping the final law.  It is no surprise that a bill first introduced during President Jimmy Carter’s administration became more conservative by the time it was signed into law by President Ronald Reagan.

Too often, Murakawa conflates the role of the guideline system and mandatory minimum sentencing laws in contributing to overincarceration.  Many of the most draconian mandatory minimums for drug and gun crimes were enacted in 1986, after the passage of the Sentencing Reform Act of 1984 but before the guidelines took effect in 1987.  Kennedy recognized that mandatory minimums were unjustified once the guideline system had been established.  He repeatedly argued that guidelines are a reasonable mechanism to restrain judicial discretion, whereas mandatory minimums are blunt and unyielding.

Throughout the 1990s Kennedy fought against mandatory minimum sentencing proposals, as I detailed in my article “The Battle Against Mandatory Minimums: A Report from the Front Lines.”

He championed the safety-valve provision (18 USC 3553(f)) in the 1994 crime bill, which allows certain low-level, nonviolent offenders to be sentenced below applicable mandatory minimums.  In fact, in his 1994 reelection race against Mitt Romney, Kennedy faced brutal ads claiming he was soft on crime because he had opposed mandatory sentencing.

Kennedy and other liberals can be faulted for voting in favor of the 1986 crime bill and other bills which contained mandatory minimums, but they did not lead the charge for those policies as Kennedy had for a guideline system.  In fact, Sen. Kennedy was a leader in opposing mandatory minimums once their effect became clear and their inconsistency with the guideline system became apparent.

More generally, Kennedy was a voice for more rational criminal justice policies.  He always opposed capital punishment and, as Prof. Murakawa notes, led the unsuccessful fight to pass the Racial Justice Act which would have allowed capital defendants to challenge their sentences using statistical evidence of racial bias....

Professor Murakawa has written a thoughtful, comprehensive academic study of federal sentencing policies. A book like hers provides an important service, but it cannot be expected to take account of the rough-and-tumble aspects of the legislative arena.  During his long political career, Sen. Kennedy endured criticism that was a lot harsher and less fair than that contained in Murakawa’s book.

As someone who has been involved in criminal justice policy for many years, both before and after I worked for Sen. Kennedy, I share Murakawa’s concern about America’s overreliance on incarceration.  I also applaud the current trend toward more sensible sentencing policies.

I have no doubt that if Sen. Kennedy were alive today, he would be leading the charge for criminal justice reforms.  And he would be doing so in a bipartisan manner, working with Sens. Rand Paul, Mike Lee and other unlikely bedfellows.  That was his way.

Prior related posts:

August 21, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Wednesday, August 05, 2015

Latest tea leaves concerning Senator Grassley's coming sentencing reform bill

This new Wall Street Journal piece, headlined "Senator Holds Key to Sentencing Changes," provides a few more juicy details about what we might expect to emerge from the sentencing reform work of the critical chair of the Senate Judiciary Committee, Charles Grassley. Here are the excerpts that most caught my eye:

Now, as lawmakers in both parties and both chambers of Congress show greater interest in easing policies blamed for prison crowding, Mr. Grassley is presiding over final negotiations of a group he tasked with integrating assorted criminal justice proposals into a single package. Mr. Grassley, a four-decade veteran of Congress, said he plans to unveil a bill after Labor Day.

The most likely outcome of the talks, according to aides and lawmakers involved in the negotiations, is legislation that would combine programs to reduce recidivism and create more opportunities for early release with provisions giving judges some discretion to sentence below the mandatory minimum for certain drug defendants. “I think it’s fair to say there are going to be a lot less people that are going to have mandatory minimums apply, but it’s not going to be this across-the-board cut,” Mr. Grassley said, warning that drastic reductions in sentences would weaken penalties for serious offenders.

Mr. Grassley’s position — which fellow committee members say has evolved since March, when he warned of a “leniency industrial complex” — reflects a readjustment on criminal justice among many conservatives, who increasingly are joining Democrats in calling for legislation aimed at reducing mass incarceration....

Among Republicans, the party’s libertarian wing was first to back sentencing overhaul, and more mainstream Republicans have followed.... Mr. Grassley, once seen as a chief roadblock to change, is in a position to convert that momentum into a bill committee members say could clear the Senate this year with bipartisan support now rare in a deeply divided Congress.

But it isn’t clear whether committee members with fervent objections to mandatory minimum sentences will sign onto a proposal shorn of the more sweeping changes they envision. More substantial reductions were embraced in a bill that cleared the committee last year but never made it to the floor. Its sponsors, Sens. Richard Durbin (D., Ill.) and Mike Lee (R., Utah), this year reintroduced the bill, which would halve mandatory minimum sentences for some nonviolent drug crimes and give judges more flexibility to hand down sentences below the mandatory minimum.

“He’s offering a different approach than we started with,” Mr. Durbin said of the agreement Mr. Grassley is brokering. “It’s a much different approach, and it’s a harder approach.” Still, he said, he is encouraged that Mr. Grassley would entertain any legislation revising sentencing law. “Let me tell you, he was not even at the table initially, and now he’s at the table,” Mr. Durbin said.

A compromise bill may still encounter conservative resistance. One of the committee’s more cautionary voices is that of Sen. Jeff Sessions (R., Ala.), who said tough criminal code has been at the heart of a reduction in violent crime.

On the other side of the Capitol, Mr. Boehner has endorsed a bill by Reps. Jim Sensenbrenner (R., Wis.) and Bobby Scott (D., Va.) that would loosen some sentencing requirements, while also addressing probation and recidivism....

Some in Iowa have sought to hold Mr. Grassley to account for the ballooning prison population. A state report released last year estimated that Iowa’s prison population could swell 39% over the next decade. In May of this year, the Des Moines Register, Iowa’s largest newspaper, urged Mr. Grassley not to stand in the way of changes to federal sentencing laws. Home on a recent weekend, Mr. Grassley faced questions about criminal justice at two town meetings — a surprise, he said, as it marked the first time this year constituents had raised the topic. “They were happy that it looked like we were going to get a bill,” he said.

As I explained in recent prior posts here and here reporting on the latest Grassley reform forecast, I am fearful that politics and process may continue to impede any significant federal sentencing reform from getting done before the end of the year.  Because it would appear that Senator Grassley has now invested considerably in developing a reform bill to his liking and given that he is a critical player for any reform proposals moving forward, I sincerely hope that the bill he unveils in September is perceived to be "good enough" to garner the support needed from all quarters to have a real chance at becoming law.

Some prior related posts:

August 5, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Sunday, August 02, 2015

Rep. Sensenbrenner explains why "Now is the time for criminal justice reform"

The Washington Examiner has published this notable new commatary authored by US Rep. Jim Sensenbrenner under the headline "Now is the time for criminal justice reform."  Here are excerpts:

Over the past three decades, America's federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today.  Prison spending has increased alongside it, placing a heavy burden on American taxpayers.  According to the Pew Charitable Trusts, between 1980-2013, prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable.  Currently, the federal prison system consumes more than 25 percent of the entire Department of Justice budget.

This redirects funding from enforcement and other criminal justice programs and reduces our system's efficiency and effectiveness.  The growth in prison population and spending, plus the massive human and social costs of mass incarceration, creates an urgent need for federal criminal justice reform.

The current high incarceration rates are a result of sweeping tough-on-crime initiatives, specifically the introduction of drug mandatory minimums in the 1980s.  While minimums have proved successful in some circumstances, too often low-level, non-violent individuals have been caught up in the system.  Instead of considering the unique circumstances of each case, taking into account the personal and criminal history of the offender, judges are forced to comply with federally mandated minimums that lock up millions of people without discretionary judgment.

Further, the current system lacks the ability to effectively rehabilitate nonviolent offenders, leaving them without the skills, education and training to successfully reintegrate into society.  A shocking 50 percent of the federal prison population has substance abuse issues, mental health issues or both.  An estimated 53 percent of offenders entering prison are at or below the poverty line, and our current prison population houses a disproportionate number of African-Americans, who account for nearly 40 percent of inmates.

Our prisons have become warehouses that simply lock away offenders, rather than treating the underlying issues that brought them there.  This neglect contributes to high recidivism rates and puts a revolving door on the gates of America's federal prisons.

While Congress has remained largely silent on the issue, states have embraced reform — enacting wide-ranging, evidence-based changes that both improve public safety and rein in prison costs. These state programs have succeeded by prioritizing incarceration for violent and career criminals, strengthening community supervision and adopting alternative sanctions for lower-level offenders....

Last year, Congressman Bobby Scott and I led a congressional task force to investigate over-criminalization, which examined the scope of mass incarceration, as well as evidence-based programs for reform.  In June, we introduced the Safe, Accountable, Fair, and Effective (SAFE) Justice Act, a comprehensive bill that addresses the major drivers of the federal prison population at the front and back ends of the system.

SAFE Justice promotes targeted sentencing over a one-size-fits-all approach, curtails the ballooning number of regulatory crimes, and includes policies that more effectively change the criminal behavior of the nearly 132,000 people on federal probation and post-prison supervision.  The bill, which has been endorsed by House Speaker John Boehner and boasts 36 bipartisan cosponsors, advances research-based sentencing, release and supervision policies, and will enact meaningful reforms that shadow the success seen on the state level.

Our system cannot continue on its current trajectory.  It's not only fiscally unsustainable, but morally irresponsible.  Now is the time for criminal justice reform, and the SAFE Justice Act delivers the change necessary to enact fairness in sentencing, reduce the taxpayer burden and ensure the increased safety and prosperity of communities across the country.

Prior related posts:

August 2, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6)

Saturday, August 01, 2015

Latest reform news means still more waiting for those eager for federal sentencing reform

This new NPR piece, headlined "Despite High Expectations, Sentencing Reform Proposals Still On Ice," confirms my persistent fear that a long and uncertain slog remeains in Congress before anyone should expect to see a major sentencing reform bill on Prez Obama's desk for signature. Here is why:

Advocates and inmates working to overhaul the criminal justice system will have to wait at least a little longer for congressional action.

The Republican leader of the Senate Judiciary Committee, Charles Grassley, said he won't hold a public event on sentencing reform proposals until after the August recess, as language is still being drafted by a bipartisan working group. And in the U.S. House, lawmakers and their aides will spend at least the next five weeks making adjustments to a sweeping bill sponsored by 40 Democrats and Republicans, sources told NPR Friday....

Earlier this week, Texas Sen. John Cornyn, a member of the GOP leadership team, suggested that a hearing and markup on proposals could be imminent. "This seems to be another area where there's a lot of common ground, where a lot needs to be done, and I'm reassured by the bipartisan support we've seen, an optimism that we can get something important done," Cornyn said Tuesday.

But multiple sources from Capitol Hill, the executive branch and the advocacy community said concrete language on sentencing and criminal justice overhauls is still being hotly debated behind closed doors in both the Senate and the House. The Obama administration, including Deputy U.S. Attorney General Sally Yates, has been pressing to relax mandatory minimum sentences for certain drug crimes....

The principles on the table now in the Senate would not eliminate all mandatory minimums, and, in fact, some Republicans are pressing to create new ones, for other crimes. Another key issue is how the bill will come to define crimes of "violence," which could exclude thousands of prisoners from taking advantage of the legislative changes.

And in the House, a massive bill called the SAFE Justice Act, co-sponsored by Reps. Bobby Scott, D-Va., and James Sensenbrenner, R-Wis., got a boost this month when House leaders confirmed it would get time on the floor this year. But what the bill will look like by then is an open question, after the Justice Department and some police groups expressed concerns about its scope. Lawmakers are working to tweak the language over the next couple of months.

Congressional sources say they're moving carefully, to avoid falling into the same traps as they did in debate over the landmark 1994 crime bill, which imposed tough mandatory criminal penalties on defendants, incentivized states to build more jails and prisons, and barred inmates from being awarded grants to pursue education. All of those issues are now being rethought, more than two decades later.

As each week passes without consensus building around any specific reform proposal in the House or Senate, I am growing ever more worried that the considerable eagerness for enacting major reforms may, at least in the short term, continune to stall or ultimately prevent getting a even minor reforms into law.  (For the record, I already think this dynamic undercut the prospects of enacting, many months ago, less-controversial-but-consequential aspects of the Smarter Sentencing Act.)  I sincerely hope I am wrong to see the same forces that brought down the SSA at work here creating a growing risk that the "sentencing reform best" ends up becoming a problematic enemy of the "sentencing reform good enough to get actually enacted."

August 1, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Thursday, July 30, 2015

Will Senator Grassley's (still-developing) sentencing reform bill make it to the President's desk in 2015?

The question in the title of this post is prompted by this new National Journal article providing the latest news on the on-going Senate discussions of a new sentencing reform bill spearheaded by Senate Judiciary Chair Charles Grassley.  The piece is (misleadingly?) headlined "Chuck Grassley's Closer Than Ever to Giving in on Mandatory-Minimum Reform," and here are excerpts:

Grassley could be just days away from unveiling a major bipartisan justice-reform package that would seek to reduce recidivism and give inmates the chance to reduce their sentences with good behavior. The bill also will offer changes to the way judges dole out mandatory minimums.

Grassley has moved on the issue of mandatory minimums.  While a bipartisan group of senators is still working on the final bill, it's clear that the Republican from Iowa has come a long way.  "The points of negotiation are the ones you would expect, about in what areas mandatory minimums should be adjusted and to where they should be adjusted," says Democratic Sen. Sheldon Whitehouse, a key negotiator for justice reform in the Senate.

Unlike four months ago, today it is understood that any justice-reform package will include provisions that give judges more flexibility on sentencing.  Behind the scenes, Grassley has fought to ensure that the provisions in the bill are not just rehashes of the Smarter Sentencing Act he was opposed to, but changes in mandatory minimums are coming. "It's not as far as I would like, but we are getting somewhere," Sen. Patrick Leahy, a sponsor of the Smarter Sentencing Act, told National Journal.

On mandatory minimums, Grassley insisted earlier this year that senators negotiate from scratch.  "It was a long process, and he came in insisting on a different approach and we said, 'All right, let's take your approach and see how close we can come to our goal.' And he has worked in good faith with us and we're close," says Minority Whip Dick Durbin.

At this point, senators on both sides of the aisle report negotiations are closer than they have ever been. Senators have agreed that high-risk offenders, who are considered dangerous either because they deployed a weapon in a crime or have a history of violence, won't be eligible for the so-called safety valve.  A narrow subset of nonviolent drug offenders will be.

"What we are trying to do is to make sure that those who are guilty of drug offenses do not have other aggravating factors such as using a gun, violence, or gang activity.  We are working through the language very carefully on that," Durbin said. "How do we get the gang leaders and the brains of the gang separated from the rank and file?"

Many of the so-called back-end reforms that focus on giving prisoners a better chance of success after incarceration are borrowed from Republican Sen. John Cornyn and Sen. Whitehouse's Corrections Act....  The proposals in the Corrections Act focus on giving inmates the opportunity to get jobs and exhibit a propensity for success.  Some low-level offenders can even work their way up to qualifying to serve the final weeks and months of their sentence supervised in the community.

Even once the new bill is introduced, however, there will still be changes made to it.  And any legislation that makes it to the floor of the U.S. Senate will likely undergo a vigorous amendment process.

Other senators who have worked on criminal-justice reform before already see the upcoming legislation as an opportunity to advance their own causes.  Sen. Tim Scott, a Republican from South Carolina, has introduced a bill to grant local law enforcement agencies $500,000,000 for body cameras over a five-year period. Scott says that arming agencies with cameras will help stem tensions between police and the communities they patrol.  The floor may be another place for senators to add more stringent reductions in mandatory minimums.

Though Senator Grassley has been promising that "his" bill will be ready for prime time before the Senate takes its August recess, I remain fearful that the press of other legislative activities (as well as enduring opposition from the tough-and-tougher crowd) may prevent any significant federal sentencing reform from getting done before the end of the year.  I hope my pessimism in this area is proven wrong; but given that we have already had more than two years of "momentum" and bipartisan talk of federal sentencing reform while no bill has even made it out of one congressional chamber, I am not going to count any sentencing reform chickens until they are doing the chicken dance on a desk in the Oval Office.

July 30, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, July 29, 2015

Based on Alleyne, Michigan Supreme Court declares its state guidelines unconstitutional and now advisory

As reported in this local press article, "the Michigan Supreme Court ruled Wednesday that the state’s sentencing guidelines that mandate prison terms are unconstitutional, and that judges should use them only in an advisory capacity." Here are excerpts from the state of the majority opinion in Michigan v. Lockridge, No. 149073 (Mich. July 29, 2015) (available here):

This case presents the question whether the Michigan sentencing guidelines violate a defendant’s Sixth Amendment fundamental right to a jury trial.  We conclude that the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them constitutionally deficient. That deficiency is the extent to which the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the “mandatory minimum” sentence under Alleyne.

To remedy the constitutional violation, we sever MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory.  We also strike down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure.

Consistently with the remedy imposed by the United States Supreme Court in United States v Booker, 543 US 220, 233; 125 S Ct 738; 160 L Ed 2d 621 (2005), we hold that a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness.  Booker, 543 US at 264.  To preserve as much as possible the legislative intent in enacting the guidelines, however, we hold that a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. Id.

Two of the seven Michigan Supreme Court Justices dissented from the majority opinion, and a lengthy dissent authored by Justice Markman ends this way:

I conclude that under the Sixth Amendment a criminal defendant is not entitled to a jury determination of facts necessary to establish his or her minimum parole eligibility date. Under Michigan’s sentencing system, the jury has the authority to render a defendant subject to the statutory maximum punishment, and the judge has no influence over this authority or any authority to usurp it.  The judge’s exercise of judgment in establishing a parole eligibility date does not infringe the authority of the jury and does not violate the Sixth Amendment of the United States Constitution.  Furthermore, Michigan’s indeterminate sentencing guidelines do not produce “mandatory minimum” criminal sentences, and because Alleyne only applies to facts that increase “mandatory minimum” sentences, Alleyne is inapplicable to our state’s guidelines.  Therefore, I conclude that Michigan’s sentencing system does not offend the Sixth Amendment and would therefore affirm the judgment of the Court of Appeals.

July 29, 2015 in Blakely in the States, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (2)

Sentencing reform group propounds "The Dangerous Myths of NAAUSA"

In this post last week, I linked to this white paper produced by the National Association of Assistant US Attorneys titled "The Dangerous Myths of Drug Sentencing 'Reform'."  This week has now brought this response from Families Against Mandatory Minimums (FAMM) titled in full, "The Dangerous Myths of NAAUSA: A Response to the National Association of Assistant U.S. Attorneys’ Paper Titled 'The Dangerous Myths of Drug Sentencing Reform'."  Here are excerpts from the executive summary, introductory paragraph and conclusion of this FAMM response paper:

The National Association of Assistant U.S. Attorneys (NAAUSA), which represents neither the U.S. Department of Justice nor a significant percentage of assistant U.S. attorneys, opposes mandatory minimum sentencing reform on the basis of several unfounded and patently false claims.  This paper rebuts those claims with data and facts...

The National Association of Assistant U.S. Attorneys (NAAUSA) recently released a white paper in which it purports to respond to the myths of sentencing reform advocates.  Before addressing its substantive points, it is important to keep in mind who NAAUSA represents — or, more important, who it does not represent.  NAAUSA does not represent federal prosecutors or the offices in which its members work.  The U.S. Department of Justice (DOJ), which represents all federal prosecutors and prosecutes all federal cases, supports mandatory minimum drug sentencing reform.  NAAUSA does not even speak for all assistant U.S. attorneys; only 28 percent of the nation’s assistant U.S. attorneys are members of NAAUSA, according to the group’s website.  Former federal and state prosecutors now serving in Congress, including Senators Ted Cruz (R-TX), Mike Lee (R-UT), and Patrick Leahy (D-VT), are leading sponsors of federal mandatory minimum sentencing reforms opposed by NAAUSA.

While advocates from all points of the political spectrum, law enforcement groups, members of both parties of Congress, House Speaker John Boehner, the Department of Justice, and President Barack Obama all agree that significant mandatory minimum drug sentencing reform is needed — and the sooner the better — NAAUSA is using scare tactics and patently false and unsupported claims to attempt to maintain a status quo that indiscriminately incarcerates thousands of nonviolent drug offenders for decades, at the cost of billions of dollars that could be better invested in law enforcement and crime prevention.  NAAUSA wants to maintain a sentencing system that is unjust, ineffective, expensive, harmful to families, and depleting law enforcement of limited resources. NAAUSA may call its opposition to mandatory minimum drug sentencing reform many things, but it cannot be called a serious effort to improve public safety.

July 29, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, July 28, 2015

More talk that all the talk about federal sentencing reform is about to produce some action

As July winds down and as more opponents of sentencing reform have become more vocal, I was coming to believe that all the talk (and more talk) of bipartisan efforts to finalize a federal sentencing reform bill was going to end up as another example of inside-the-Beltway sound and fury signifying nothing.  But this new New York Times article, headlined "Push to Scale Back Sentencing Laws Gains Momentum," has me wanting to believe that optimism is still more justified than cynicism on this sentencing reform front. Here are excerpts:

For several years, a handful of lawmakers in Congress have tried to scale back tough sentencing laws that have bloated federal prisons and the cost of running them.  But broad­based political will to change those laws remained elusive.

Now, with a push from President Obama, and perhaps even more significantly a nod from Speaker John A. Boehner, Congress seems poised to revise four decades of federal policy that greatly expanded the number of Americans — to roughly 750 per 100,000 — now incarcerated, by far the highest of any Western nation.

Senator Charles E. Grassley, Republican of Iowa and chairman of the Senate Judiciary Committee who has long resisted changes to federal sentencing laws, said he expected to have a bipartisan bill ready before the August recess.  “It will be a bill that can have broad conservative support,” said Mr. Grassley, who as recently as this year praised the virtues of mandatory minimums on the Senate floor....

Of the 2.2 million men and women behind bars, only about 207,600 are in the federal system, according to the Federal Bureau of Prisons.  But because the federal system has grown at the fastest rate of any in the country, many on the left and the right say they believe it exemplifies the excesses of America’s punitive turn. “If we can show leadership at the federal level,” Mr. Durbin said,  “I think it will encourage other states to open this issue up for debate.  The notion that we can create a bipartisan force for this really has value.”...

The dynamic is similar to the fight this year over changes to the Patriot Act when younger, more libertarian members — again supported by Mr. Boehner and Mr. Obama — worked with Democrats to change the law and eventually even won over a reluctant Mr. Grassley.

July 28, 2015 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, July 27, 2015

John Oliver (often amusingly) covers Prez Obama's clemencies and mandatory minimums

July 27, 2015 in Clemency and Pardons, Mandatory minimum sentencing statutes | Permalink | Comments (2)

Friday, July 24, 2015

"Convicted Republicans Plead for Mandatory Minimums Changes"

The title of this post is the hedline of this notable new Roll Call piece.  Here are excerpts:

Kevin Ring, the lobbyist who was sentenced in 2011 to 20 months in federal prison for his role in a corruption scheme, was pitching to GOP aides gathered in the Rayburn House Office Building on an effort to overhaul mandatory minimum requirements. Ring, who has been working in downtown Washington, D.C., since his April prison release, wanted the staffers to understand that current guidelines more often send low-level dealers and addicts to prison, not drug kingpins....

Two other convicted Republicans who served time in federal custody joined Ring for the lunchtime forum aimed at building support for a proposal sponsored by Republican Jim Sensenbrenner of Wisconsin and Democrat Robert C. Scott of Virginia. Red states are leading the way, and now it is “time that the federal government catches up,” Sensenbrenner, a former House Judiciary Committee chairman, said during his brief talk to staffers as they munched on Chick-fil-A lunches.

Despite positive feedback from Speaker John A. Boehner, Sensenbrenner acknowledged it would be tough to prod his bill forward. House Judiciary Chairman Robert W. Goodlatte, R-Va., is not on board. Sensenbrenner also suggested he may have “worn out my welcome” in the Senate, during the recent debacle over reauthorizing the Patriot Act, though a separate effort is gaining momentum in that chamber on a bipartisan basis.

Some federal prosecutors have expressed opposition to executive branch efforts to eliminate mandatory minimum sentences for nonviolent drug offenders, arguing they are an essential tool to dismantling drug rings.

Former New York City Police Commissioner Bernard Kerik, disgraced in 2004 when he was forced to withdraw from his nomination to head the Department of Homeland Security under President George W. Bush, said it was “incumbent” that the next White House administration tackle mandatory minimums. Kerik pulled out of consideration after admitting he had not paid taxes for a domestic worker who may have been an illegal immigrant, and later pleaded guilty to eight felony charges, including tax fraud and lying under oath. He was sentenced to 48 months in federal prison.

Knitting, chess and checkers were offered as adult continuing education classes to inmates at the federal prison camp in Cumberland, Md., where Ring and Kerik served their sentences. “You can teach an inmate real estate or accounting, but that federal conviction will keep them from getting a license,” Kerik said.

“Idle hands are the devil’s playground,” echoed Pat Nolan, who served 15 years in the California State Assembly before he was nabbed accepting an illicit campaign contribution as part of an FBI sting. He pleaded guilty to one count of racketeering and served 29 months in federal custody.

Twenty-four hours earlier, in the same room, House Judiciary Democrats unveiled legislation that would end mandatory life imprisonment for incarcerated youth, as part of a package of bills focused on sentencing and incarceration. Ranking member John Conyers Jr., D-Mich., and Rep. Sheila Jackson Lee, D-Texas, also introduced a measure aimed at increasing police accountability in the wake of high-profile deadly encounters between officers and black citizens.

“It is clear that improved national standards are necessary to address the ever-growing catalogue of incidents such as the case of Sandra Bland in Waller County, Texas, where a routine traffic stop led to an arrest and a death in custody 72 hours later,” Conyers stated Wednesday. “It is critical that we adopt smarter approaches to dealing with those involved with the criminal justice system.”

Among Republicans, the blame was on the Justice Department. Nolan fired off at U.S. attorneys, saying their jobs are “entirely political” and driven by numbers. They have the tools to protect the public and keep the streets clean, he said, “but there’s no restraint.”

July 24, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Many notable passages in recent sentencing reform speech by DAG Yates

Images (5)Earlier this week in this post, I noted that US Deputy Attorney General Sally Yates has been saying a lot of interest and import in support of federal sentencing reform efforts.  Of particular note, DAG Yates on Wednesday delivered these significant remarks at the Bipartisan Summit on Fair Justice.  The full speech should be read by all those interested in federal sentencing reform debates, and these passages struck me as worth highlighting:

[I]t’s because I’m a prosecutor that I believe so strongly in criminal justice reform.  I have seen firsthand the impact that our current system and particularly our federal drug sentencing laws, can have on communities, families, the public fisc and public confidence in our criminal justice system.  And it’s because of that I believe that we can and we must do better....

I’ve been a prosecutor for 26 years.  I believe in holding people accountable when they violate the law and I believe that some people are dangerous and need to go to prison, sometimes for a very long time.  But our system of justice must be capable of distinguishing between the individual that threatens our safety and needs to be imprisoned, versus the individual for whom alternatives to incarceration better serve not only that individual, but also make our communities safer....

While the country’s population has grown by about a third since 1980, our federal prison population has grown by 800 percent, due in large part to the influx of drug defendants. And today, under the current sentencing regime, our mandatory minimum laws do not calibrate a defendant’s sentence to match the threat that he or she poses to our safety.  At its core, one of the basic problems with our mandatory minimum system is that it’s based almost exclusively on one factor — drug quantity.  And so we have a hard time distinguishing the cartel leader who needs to be in prison for a long time from the low level mope who doesn’t.  As a result, we have some defendants serving far more time in prison than necessary to punish and deter and instead, in the words of former Attorney General Holder, sometimes we warehouse and forget.  This comes with great costs.  Costs to operate our prison system, costs to our families and communities and costs to the public’s confidence in their system of justice.

From a dollars and cents standpoint, prisons and detention now account for roughly one-third of the department’s budget.  Every dollar that we spend incarcerating non-violent drug offenders is a dollar that we can’t spend investigating today’s emerging threats, from hackers to home-grown terrorists.  These costs are swallowing up funds that would otherwise be available for state and local law enforcement, victims of crime and prevention and reentry programs....

Some states have been great innovators in criminal justice reform.  I met just yesterday with the National District Attorneys Association and I learned of many programs, from drug courts to recidivism reduction programs going on across the country designed to shift from incarceration as the only answer to prevention as the first response.  And many states, red states and blue states, like Texas, Ohio, North Carolina and my home state of Georgia, faced with exploding prison costs, have enacted bold criminal justice reform not only reducing the size of their prison populations, but also and this is the important part, reducing crime rates as well.  In the 29 states that have enacted laws limiting mandatory minimum sentences, shifting funds from incarceration to prevention, virtually every state has experienced a reduction in violent crime as well.

Despite all of this, there are some who want to keep things as they are.  One of the most common concerns that I hear expressed about eliminating or reducing mandatory minimums is that long sentences for low level defendants is the only way to secure cooperation against the worst criminals.  Not only is this inconsistent with my personal experience as a prosecutor, it is inconsistent with the data we have gathered since the Department of Justice recalibrated our drug charging policy two years ago.  As I expect you know, under former Attorney General Holder’s smart on crime policy, prosecutors were directed not to charge mandatory minimums for lower level, non-violent drug offenders and our use of mandatory minimums decreased by 20 percent.  Although some feared that defendants would stop pleading guilty and stop cooperating, our experience has been just the opposite. In fact, defendants are pleading guilty at the same rates as they were before we instituted the new policy.  So the fear that not charging mandatory minimums would prevent us from being able to work our way up the chain just hasn’t been borne out....

I am here in part because I believe that sentencing reform will make prosecutors and law enforcement officers more effective, not less.  Our ability to do good in this world — to advocate for victims, to hold wrongdoers accountable, to seek justice in all its forms — depends on public confidence in the institutions we represent.  It’s based on a hard-earned reputation for fairness, impartiality and proportionality that has forever been the bedrock of our criminal justice system.

As prosecutors, it is our obligation to speak out against injustices and to correct them when we can.  That’s why the Department of Justice is so engaged on this issue and I why I look forward to working with members of both parties as we seek a more proportional system of justice. Our nation and its citizens deserve nothing less.

Related recent prior posts:

July 24, 2015 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, July 23, 2015

Federal prosecutors group propounds "The Dangerous Myths of Drug Sentencing 'Reform'"

The National Association of Assistant US Attorneys (NAAUSA) has recently prepared this white paper "to inform the public discourse about our current federal drug sentencing system and the most dangerous myths of drug sentencing 'reform'." Here is the paper's introduction to its list and discussion of seven most dangerous myths:

Congress is considering legislation that would dramatically change how we sentence drug traffickers in our federal courts.  These legislative proposals, including one euphemistically named the “Smarter Sentencing Act” (SSA), would slash federal minimum sentences for trafficking in all dangerous drugs by at least half and would make thousands of federal prisoners convicted of serious drug trafficking crimes eligible for early release without regard to their criminal history, violent background, or ties to gangs, drug trafficking organizations, or even international drug trafficking cartels.

Proponents also gloss over the significant changes in federal sentencing guidelines that have already and will continue to result in the early release of thousands of convicted drug traffickers.  These sentencing reductions and early prisoner releases have occurred and will continue to occur regardless of whether Congress enacts the SSA or other sentence reduction proposals.  The impact of these early releases is certain to inflict greater strains upon law enforcement efforts to preserve safety and dismantle gangs and drug trafficking organizations.  If the Smarter Sentencing Act or similar proposals are enacted, they will only aggravate and compound these harms.  Congress will have made our country less safe and contributed toward the reversal of a 20-year period of reduced crime in our nation.

It is critical that Congress avoid this path and understand the mistruths propounded by advocates of sentencing “reform” through the following seven myths.

In some subsequent posts I hope to find time to discuss some of the NAAUSA's discussion of at least some of these "most dangerous myths."

July 23, 2015 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (14)

Wednesday, July 22, 2015

DAG Yates: "our thinking has evolved on [drug sentencing], it’s time that our legislation evolved as well."

Download (6)I have noticed lots of good crime and punishment reporting at BuzzFeed lately, and this new lengthy piece discussing an interview with US Deputy Attorney General Sally Yates is the lastest must-read. It is headlined "Justice Department: You Don’t Need Mandatory Prison Sentences To Put The Right Drug Criminals In Jail," and here are excerpts:

The central argument against the sweeping changes to the war on drugs proposed by the Obama administration and others goes like this: If you take away stringent mandatory minimum sentences for drug crimes, prosecutors can no longer use the fear of prison to flip drug criminals. If they can’t flip drug criminals, they can’t go after more powerful and dangerous drug criminals. And if they can’t go after those criminals, they can’t hope to make a dent in the illegal drug trade.

This was the governing principle of the prosecutors fighting the war on drugs for decades. Just a year or so ago, under the direction of former Attorney General Eric Holder, prosecutors changed the way they charged some drug criminals, avoiding charges carrying mandatory minimums when possible. Some prosecutors worried they’d lose their ability to net the biggest fish.

Sally Quinlan Yates, a career federal prosecutor now leading Obama administration efforts to reduce or eliminate mandatory minimum drug sentences on Capitol Hill, says the old system was all wrong, and she can prove it. “There were some out there who were saying, and I understand this, ‘We’ll never get another defendant to cooperate with us, they’re not going to plead guilty, they’re not going to cooperate with us. We’ve lost our leverage, we won’t be able to work our way up the ladder,’” Yates, the deputy attorney general, told BuzzFeed News. “But that’s turned out just not to be true. In fact, the rate of guilty pleas has stayed exactly the same as it was prior to our new mandatory minimum policy and in fact the rate of cooperation is the same or has gone up slightly.”

Yates has been saying for years that mandatory minimums — which don’t apply in the vast majority of cases federal prosecutors coerce cooperation from all the time — aren’t necessary to put high-level drug offenders behind bars. Now she’s overseeing the process by which prosecutors move away from mandatory minimums, and she’s one of the leading advocates in the administration push to eliminate mandatory minimums altogether in most cases.

It’s a fundamental change to the way prosecutors think about their work when it comes to drug cases. Getting convictions without relying on mandatory minimums is a key legacy of Holder’s term as Attorney General, and now it’s a central part of Yates’ argument to lawmakers that it’s time to change the nation’s sentencing laws.

As real momentum builds on Capitol Hill to rewrite sentencing laws with the goal of refocusing prosecution and lowering the prison population — an issue of prime importance President Obama in the final months of his presidency — Yates is among the top administration aides helping the process along on Capitol Hill. She meets regularly with the members of the Senate in both parties attempting to hash out a bipartisan criminal justice compromise they can pass before the end of the year.

As that effort continues, Yates will continue to be among the most prominent administration faces pushing the Obama team position. On Wednesday, she’ll speak at a bipartisan criminal justice policy summit that organizers hope will solidify momentum and help keep the ball rolling in Congress.

Yates has drawn the praise of advocacy groups who say she’s able to connect with Republicans in a way the Justice Department often wasn’t able to when Holder was in charge, due in part to GOP rhetoric that cast Holder as the biggest villain in the Obama administration. Criminal justice is a top policy goal for Holder’s successor, Loretta Lynch, and Yates also works closely with top department officials to help push unilateral changes to prosecution procedure set down by first by Holder and now by Lynch. She also spends a lot of time talking to working prosecutors, the group that has expressed the greatest skepticism toward the sweeping changes pushed by criminal justice advocates and the administration.

“People get used to doing things a certain way. You ask folks to do something differently, there’s naturally some discomfort with that among certain prosecutors, I think,” she said. “So change is hard.” Yates knows how to speak their language. On paper, she is basically the prototypical tough-as-nails federal prosecutor....

Changes implemented by Holder as part of his smart on crime iniative — which guided prosecutors away from throwing the book at low-level nonviolent drug offenses — led to a reduction in prosecutions.  Yates is now in charge of implementing the new approach. She says most prosecutors welcome the changes, but Obama’s recent round of clemencies for nonviolent offenders sentenced under the old rules put into perspective how much of a culture change is still under way at the Justice Department.

“There are cases now that I see when I review clemency petitions and I see cases that were charged under different statutes, different laws at the time, and different policies [at the Justice Department] that certainly trouble me from a fairness perspective,” she said. “The prosecutors who were involved, they were following the department policies that were in place at the time. And so I’m not suggesting they were doing anything improper or unethical. But our thinking has evolved on this. And it’s time that our legislation evolved as well.”

Yates says prosecutors are open to changes, and she’s got the statistics to keep pushing those who are still skeptical. In the end she thinks the Justice Department will be continue to make the changes it can to the way the war on drugs is fought even if Congress can’t.

For Yates, the movement is a personal one. “At the risk of sounding really corny now, I’m a career prosecutor. I’ve been doing this for a very long time. And I believe in holding people responsible when they violate the law,” she said. “But our sole responsibility is to seek justice. And sometimes that means a very lengthy sentence, for people how are dangerous and from which society must be protected. But it always means seeking a proportional sentence. And that’s what this sentencing reform is really about.”

UPDATE: The speech that DAG Yates delivered today on these topics is available at this link. I will likely highlight a few notable passages in a later post.

July 22, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, July 17, 2015

"John Boehner Says Many People In Prison 'Really Don't Need To Be There'"

The title of this post is the headline of this new Huffington Post report which highlights that a very important GOP member of Congress has expressed his support for significant federal sentencing reform.  Here are the highlights: 

House Speaker John Boehner (R-Ohio) said on Thursday that there were many people in prison "that really don't need to be there," telling reporters that he wants bipartisan legislation proposing criminal justice system reform to come to the House floor. "I've long believed that there needed to be reform of our criminal justice system," Boehner said. "Some of these people are in there under what I'll call flimsy reasons."

Boehner made the remarks while stating his support for the SAFE Justice Act, legislation introduced by Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) last month that would implement a wide range of criminal justice reforms, including narrowing the use of mandatory sentences for some nonviolent drug offenders.

Among other measures, the bill would favor alternative sentences "in limited circumstances, in which the defendant is a first-time, low-level, nonviolent offender who is capable of being supervised by probation and has not been convicted of a crime of violence," or other serious offenses. The bill is currently sitting in the House Judiciary Committee.

Boehner's support is encouraging, both Sensenbrenner and Scott told The Huffington Post. “Chairman Sensenbrenner and I have been working for months to put together a bill that includes bipartisan, evidence-based, state-tested solutions to reduce crime and save money," Scott said in a statement. "I am encouraged by Speaker Boehner’s endorsement of the SAFE Justice Act and hope that his support will help us continue to build bipartisan momentum to make these changes law.”

Prior related posts:

July 17, 2015 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Wednesday, July 15, 2015

Politico article suggests real federal sentencing reform poised to become a reality

Almost exactly two years ago, in this July 2013 post reflecting frustration hearing lots of federal sentencing reform talk and relatively little major sentencing reform action, I speculated that the GOP gaining control of the US Senate along with the House might actually make the enactment of some significant federal sentencing reform more likely before the end of the Obama era.  Thus today, thanks to this Politico article reporting on where developments in the GOP-controlled Congress stand, has me feeling a bit clairvoyant:

As President Barack Obama on Tuesday evening called on Congress to take up criminal justice reform, a bipartisan group on Capitol Hill was putting the final touches on a sentencing overhaul deal to be announced as soon as next week. Their message to the president: You’re preaching to the choir. Story Continued Below

“We’ve actually been working on it for quite a while,” said Senate Majority Whip John Cornyn (R-Texas), one of the key negotiators of a package being hashed by members of the Senate Judiciary Committee. “You may see some legislation here in the next week or so. This is active. … [W]e’re close.”...

Right now, the prospects for such legislation seem good, given that lawmakers from both parties have been wrangling with a reform bill for months. Tuesday, for example, the House Oversight Committee became at least the third congressional panel to highlight problems in the justice system, inviting two governors, a handful of senators, House members and experts to discuss a path forward for reducing the number of inmates in federal prisons.

Hours later, the House officially formed the Congressional Criminal Justice and Public Safety Caucus, which will include justice reform supporters. And across the Capitol, Cornyn joined Sens. Mike Lee (R-Utah), Cory Booker (D-N.J.) and Sheldon Whitehouse (D-R.I) for a public dialogue that emphasized the importance of reform.

The biggest announcement is just around the corner: Senate Judiciary Chairman Chuck Grassley (R-Iowa) told POLITICO on Tuesday that his panel is close to announcing a deal on the bipartisan package his panel has been working on for months. Only about four outstanding issues remain, he said, predicting the package will be unveiled before August recess.

July 15, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, July 14, 2015

In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform

Download (5)Most long-time federal sentencing reform advocates likely have long shared my concern that Wisconsin GOP Representative James Sensenbrenner was a significant impediment to achieving significant federal sentencing reform.  Indeed, as noted in this prior post, as recently as two years ago, Rep. Sensenbrenner was defending federal mandatory minimum statutes on very dubious grounds.  

But now that Rep Sensenbrenner has been working for a couple years on bipartian federal criminal justice reform, he is a co-sponsor of the important SAFE Act  (details here) and today delivered this potent testimony to the GOP-controlled House to support his call for significant sentencing reform.  Here is an excerpt from the testimonty I found especially notable and important (with my emphasis added):  

Over the past three decades, America’s federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today.  Prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable.

And yet, this increased spending has not yielded results.  More than 40 percent of released offenders return to prison within three years of release, and in some states, recidivism rates are closer to 60 percent. Several studies have found that, past a certain point, high incarceration rates are counterproductive and actually cause the crime rate to go up.

Especially among low risk offenders, long prison sentences increase the risk of recidivism because they sever the ties between the inmate and his family and community.  These are the ties we need to help reintegrate offenders as productive members of society.

These severed ties are also at the heart of the moral case for reform.  It’s not just the people in prison who are paying the punishment for their crimes.  Mass incarceration tears families apart and deprives children of their fathers and mothers.  It likely means a loss of job, possibly home, and any support he or she had within the community.

And that’s where we are with our sentencing policy — we’re spending more, getting less, and destroying communities in the process.  The system is broke, and it’s our job to fix it.

It is remarkable and a true sign of the modern sentencing times that this reform rhetoric, which sounds more like a passage from an opinion or article by Wisconsin District Judge Lynn Adelman, is coming from GOP Rep. Sensenbrenner. And the adjectives I have stressed in the quoted passage are, in my view, at the heart of the most compelling case for federal reforms and a broad response to modern mass incarceration: the current system is broken and counterproductive, irresponsible and unsustainable, but even beyond any data-driven, cost/benefit analysis, there is a powerful "moral case for reform" that resonates with the commitment to liberty, family, community and limited government that triggered the American Revolution.

Prior related post:

July 14, 2015 in Data on sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Monday, July 13, 2015

Prez Obama with big plans (finally!!) to prioritize criminal justice reform efforts

Images (11)Way back in 2007, then-Prez-candidate Barack Obama on the campaign trail made much of the need for nationwide (and especially federal drug sentencing) criminal justice reform in a speech to Howard Univesity (which I discussed in this 2010 law review article).  In that speech, candidate Obama promised that as President he would be "willing to brave the politics" to help engineer criminal justice reforms.  As long-time readers know from my commentary here and elsewhere, I have long been disappointed that Prez Obama has left us waiting a long time for the reality of his policy work to match the rhetoric of his first political campaign.  

But now, roughly eight years after making campaign proimises at Howard Univesity (and, tellingly, after the conclusion of every significant nation election in which Prez Obama is the most significant player), it appears that Prez Obama is finally poised to invest his political muscle and capital on crimnal justice reform.  This effective Bloomberg Politics article, headlined "Obama to Push U.S. Sentencing Change Backed by Koch Brothers," explains how and provides effective context:

The White House is preparing to seize advantage of bipartisan concern over the burgeoning U.S. prison population and push for legislation that would reduce federal sentences for nonviolent crimes.

President Barack Obama will champion sweeping reform of the criminal justice system during a speech to the NAACP annual convention on Tuesday in Philadelphia, press secretary Josh Earnest said Friday. Obama will present ideas to make the system “safer, fairer and more effective,” Earnest said.

Later in the week, Obama will become the first sitting U.S. president to visit a federal prison when he goes to a medium-security facility in El Reno, Oklahoma.  He’ll also sit for an interview with Vice News for an HBO documentary on the criminal justice system, Earnest said.

Obama came to office promising to reduce the number of Americans imprisoned for nonviolent drug offenses, and in 2010 he signed a law reducing disparities in sentences for possession of crack and powder cocaine. Some Republicans and police organizations criticized the moves as too lenient, but now a bipartisan coalition that includes Obama’s chief political antagonists, billionaires Charles and David Koch, have joined him to support relaxing federal sentencing guidelines.

Key lawmakers from both parties have been invited to the White House next week to discuss strategy. And Obama is expected to soon issue a spate of commutations for nonviolent drug offenders identified by a Justice Department program launched last year. Top officials from the department, including Deputy Attorney General Sally Yates, have recently met with members of Congress to express support for sentencing-reform legislation.

“Engagement with the president has been lacking for the past six years, but this is one topic where it has been refreshingly bipartisan,” Representative Jason Chaffetz, the Utah Republican who heads the House Oversight Committee, said in a telephone interview....

Chaffetz said he was optimistic that a package of bills would advance because of a diverse coalition of supporters lined up behind it. The president dubbed the legislation “a big sack of potatoes” in a meeting with lawmakers in February, Chaffetz said. The composition of the legislation isn’t final.

The Koch brothers, who are major Republican donors, support a bill introduced last month by Representatives Jim Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, that would encourage probation rather than imprisonment for relatively minor, nonviolent offenses and improve parole programs in order to reduce recidivism.

The Sensenbrenner-Scott bill is modeled on state efforts to reduce incarceration. While the federal prison population has grown 15 percent in the last decade, state prisons hold 4 percent fewer people, according to Sensenbrenner’s office. Thirty-two states have saved a cumulative $4.6 billion in the past five years from reduced crime and imprisonment, his office said in a report....

Representative Bob Goodlatte, the Republican chairman of the House Judiciary Committee, held a meeting in late June to listen to proposals from lawmakers in both parties. And Chaffetz, who described the Republican leadership in the House as “very optimistic and encouraging,” scheduled hearings on the issue by his committee for July 14 and 15. “I don’t normally do two days of hearings; we’re giving it that much attention,” Chaffetz said. “So it has more momentum than anybody realizes.”

There is a significant obstacle on the other side of the Capitol: Senator Chuck Grassley, the Iowa Republican who chairs his chamber’s Judiciary Committee.... But supporters of the House legislation have reason for optimism: Last month, Grassley announced he would work on a compromise in the Senate.

While Grassley has indicated a willingness to reduce penalties for some crimes, he wants to increase mandatory minimum sentences for other offenses, a Senate Republican aide said. The person requested anonymity to discuss internal deliberations. That could make sentencing changes an easier sell to tough-on-crime voters, but endanger the support of lawmakers who see mandatory minimums as bad policy. “There does appear hope for a bipartisan compromise,” Earnest said Monday. “We obviously welcome that opportunity.”

Senator Mike Lee, a Utah Republican who has long championed criminal justice reform, is leading negotiations with Grassley. He’s backed by Patrick Leahy of Vermont, the senior Democrat on Grassley’s committee, and Dick Durbin of Illinois, the second-ranking Democrat in the Senate.

The talks remain sensitive. During a Judiciary Committee hearing on Wednesday, Leahy -- admitting he already knew the answer -- asked Yates, who was testifying before the panel, to restate her support for sentencing reform. “I was born at night, but not last night,” Grassley interjected. “And I know that question was in reference to me, and I want everybody to know that we’re working hard on getting a sentencing-reform compromise that we can introduce. And if we don’t get one pretty soon, I’ll probably have my own ideas to put forward.”

July 13, 2015 in Clemency and Pardons, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, July 09, 2015

ACLU and Koch reps make pitch for SAFE Act and federal sentencing reforms

This notable new Politico commentary advocating for federal criminal justice reform is authored by Anthony Romero, executive director of the American Civil Liberties Union, and Mark Holden, general counsel of Koch Industries. The piece is headlined "A New Beginning for Criminal Justice Reform," and here are excerpts:

The U.S. criminal justice system is in a state of crisis — and Congress is finally moving to address it. On June 25, Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) introduced the bipartisan Safe, Accountable, Fair and Effective Justice Act. Known as the SAFE Justice Act, the legislation is an important step in addressing America’s ballooning, costly and ultimately unjust federal sentencing and corrections system, which needlessly throws away lives and decimates entire communities.

The criminal justice system’s problems are evident all around us.  Over the past three decades, Congress has steadily increased the size and scope of the federal criminal code, ensnaring people who have no business being behind bars, without a corresponding benefit to public safety.  From 1980 to 2013, the federal criminal code increased from 3,000 crimes to approximately 5,000 crimes.  Over the same period, our federal prison population skyrocketed from 24,000 to 215,000 — a 795 percent overall increase — while federal spending on prisons also soared from $970 million to more than $6.7 billion — a 595 percent increase.

While we have a good handle on how much taxpayers’ money we’ve wasted on over-criminalization and mass incarceration, the cost in human lives is incalculable.  Almost every single federal prisoner serving life without parole for nonviolent offenses has one thing in common: a drug offense that resulted in a de facto death sentence. This excessive reliance on punitive sentencing destroys individual lives, families and communities. It is not clear it makes communities any safer.  In addition, it is fiscally irresponsible and morally repugnant.

This points to a simple conclusion: The criminal justice system must be reformed. It must be dramatically altered to maximize public safety, minimize its cost to taxpayers and ensure that justice is served — for the victims of crimes, the individuals who commit them and for society at large....

The SAFE Justice Act would incorporate lessons learned in [reform] states and apply many of them at the federal level. It seeks to address several specific issues with the current criminal justice system. Four areas of reform are particularly promising: First, it begins the process of reversing over-criminalization and the over-federalization of the criminal code.  The act forces the federal government to disclose the creation of new criminal offenses — a common-sense action that would clarify just how large the criminal code is and how fast it has grown.  It also empowers the victims of federal over-criminalization to seek redress via the Office of the Inspector General.  It also contains various reforms to protect against wrongful conviction, reduce pre-trial detentions, and eliminate federal criminal penalties in state jurisdictions, including penalties for actions such as drug possession.

Second, it would reform sentencing.  Today, mandatory minimums force too many people to plea to lengthy prison sentences — punishments that may not fit the crime.  The act seeks to undo this broken system by encouraging judges to offer probation to low-level offenders, while increasing pre-judgment probation.  It also would restrict mandatory minimums to specific categories of people — such as high-level members of drug-trafficking organizations rather than street dealers — as originally intended by Congress.

Third, it would reduce recidivism. Too often, the criminal justice system’s flaws turn federal prisons into revolving doors for repeat offenders.  The legislation proposes to address this problem with a number of reforms, including shorter sentences for people who participate in specific educational and vocational programs.  These reforms can ensure that people who leave federal prison are better equipped to rejoin their communities and contribute to society.

Fourth, it would increase transparency.  The bill would require that federal agencies issue regular reports on recidivism rates, prison populations and other key statistics. It also would require that cost analyses be presented to judges prior to sentencing to help them make prudent decisions.

This is only a partial list of the reforms proposed in the SAFE Justice Act. They are a good start — but they are not enough to reverse the damage, financially and in terms of human lives, caused by decades of misguided policies.  In particular, members of Congress from both parties should continue to devote particular attention to ensuring that criminal laws penalize only the people who intend to commit crimes, an important distinction that many new federal criminal laws miss.  More broadly, they must identify and pass targeted policies that are smarter on crime, rather than just tougher.

Prior related post:

July 9, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Tuesday, June 30, 2015

Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import

Today's final Supreme Court order list confirms my view that the Johnson ACCA vagueness ruling is the most consequential criminal case of the just-completed SCOTUS Term.  That is because the list has, by my count, over 40 cases in which the Justices have now "GVRed" an Armed Career Criminal Act sentence: in all these appeals to the court, the order list states that certiorari for each case is granted and then the judgment is vacated, and the case is remanded to the appropriate circuit court "for further consideration in light of Johnson v. United States, 576 U.S. ___ (2015)."

Notably, there were GVRs in this order list to nearly every one of the 12 federal circuit courts, and I am confident that even the few circuits left out of this morning's GVR fun have at least a few Johnson pipeline cases already on their docket. Consequently, it will be interesting to see which of the circuits is the first to have a significant Johnson implementation ruling. To that end, Justice Alito notably added this statement to nearly every Johnson GVR:

Justice Alito concurring in the decision to grant, vacate, and remand in this case: Following the recommendation of the Solicitor General, the Court has held the petition in this and many other cases pending the decision in Johnson v. United States, 576 U.S. ____ (2015). In holding this petition and now in vacating and remanding the decision below in this case, the Court has not differentiated between cases in which the petitioner would be entitled to relief if the Court held (as it now has) that the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. Sec. 924(e)(2)(B)(ii), is void for vagueness and cases in which relief would not be warranted for a procedural reason. On remand, the Court of Appeals should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.

Some prior posts on Johnson and its possible impact:

June 30, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Friday, June 26, 2015

SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague

In a very important Fifth Amendment criminal procedure ruling, though one certain to be overlooked because of an even more important Fourteenth Amendment ruling issued right before it, the Supreme Court this morning in Johnson v. United States, 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  Justice Scalia wrote the main opinion for the Court (which carried five other Justices, including the Chief), and here is a key paragraph from the begining of the opinion's legal analysis:

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause [of ACCA] both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.

I will need some time to review and reflect to figure out how big a ruling Johnson may prove to be. But the basic reality that the defendant prevailed here on the broadest constitutional ground (and especially the fact that only Justice Alito was prepared to rule for the federal government on appeal) further proves a point I have been making since Blakely was handed down over a decade ago: The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation.

That all said, and of particular significance for ACCA sentences that are built on convictions that do not depend on interpretations of the residual clause, the Court's opinion in Johnson ends with this critical and clear discussion of the limits of the holding:

We hold that imposing an increased sentence under theresidual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contraryholdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.

June 26, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders

SS-602x399As this report from The Hill details, a notable and significant group of Representatives are backing a notable and significant new federal criminal justice reform bill.  Here are the basics:

A bipartisan pair of lawmakers on Thursday unveiled a comprehensive criminal reform bill aimed at reducing the federal prison population.  The Safe, Accountable, Fair, and Effective (SAFE) Justice Act from Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) calls for new rehabilitation methods and sentencing reforms.  The bill is the result of the House Judiciary Committee's over-criminalization task force which examined ways to reform federal prisons....

Sensenbrenner said the bill was intended to reverse the staggering increase in the prison population, which has quadrupled in the last 30 years.  Despite increased incarceration and spending on prisons, recidivism still remains a problem, he also noted.  The bill applies mandatory minimums only to major crimes, and “expands recidivism reduction programming to incentivize and reward those who are working to make a change,” Sensenbrenner said....

Scott said the bill would encourage innovate approaches to criminal justice reform. “We were not interested in playing politics with crime policy,” said Scott.  He noted that 32 states had been able to reduce both crime and incarceration rates over the past five years. Calling those states "laboratories of democracy," he said the bill adopted many of those tested practices.

Scott lamented the high incarceration rate in the U.S. He said the bill aims to “direct non-violent low level, first time offenders from prison" and better acknowledge the conditions that lead to crime.  “If you address those underlying issues, you will have a better return rate than just from locking them up,” he said.

The bill also garnered support from major groups across the political spectrum. Leaders and representatives from Koch Industries, the ACLU, the NAACP, the Washington D.C. Police Foundation, Families Against Mandatory Minimums, and the Center for Criminal Justice Reform at the American Conservative Union have expressed support for the bill.

The bill is co-sponsored by Reps. Doug Collins (R-Ga.), Elijah Cummings (D-Md.), Raul Labrador (R-Idaho), Judy Chu (D-Calif.), Mia Love (R-Utah), and Scott Rigell (R-Va). “Too many of our children have gotten caught into a cycle that they can not get out of,” said Love, explaining the bill's appeal.

Rep. Rigell touted the broad coalition backing the bill, which includes Koch Industries, owned-by the Koch Brothers, who are major conservative donors. “If you think of those as two gate posts, “ he said, noting Koch Industries and the ACLU, “that’s an awfully wide gate.”

I am struggling to find on-line the full text of this important new federal sentencing reform proposal, but this summary from FAMM leads me to believe that this new SAFE Justice Act may go significantly farther (and be more politically viable) that the Smarter Sentencing Act and the Justice Safety Valve Act proposals that failed to move forward in the last Congress.  Indeed, these passages from this new Vox article, which provides the most detailed media account of the SAFE Justice bill's specifics, is prompting me to think all would-be federal reformers — including Prez Obama and his Justice Department, and especially Senators Cruz and Paul and other reform-minded GOP Prez candidates — should think seriously about giving up on the SSA and other reform bills now in the Senate in order to put all their advocacy efforts behind getting SAFE Justice passed through the House ASAP:

While Senate efforts at criminal justice reform have exposed a generational split in the Republican Party, in which young reformers like Senators Mike Lee and Rand Paul face off against old-school, tough-on-crime conservatives like Senators Chuck Grassley and Jeff Sessions, the House's bill was written by one of those old-school Republicans — Rep. James Sensenbrenner of Wisconsin — as well as Rep. Bobby Scott (D-VA).

Sensenbrenner and Scott think of the Safe Justice Act as a federal version of the criminal justice reform bills that have been taken up in state after state over the past several years, many of them under the mottos of "justice reinvestment" and "smart on crime." In their minds, they're building on what's worked in the states and are in line with reformers' emphasis on "data-driven" and "evidence-based" criminal justice policymaking.

The Safe Justice Act is a collection of dozens of different reforms. Most of them aren't terribly big on their own, but many of them overlap. That makes it really hard to estimate exactly how much the federal prison population would shrink if the bill became law. But its effect would be bigger than anything that's been introduced in Congress so far.

Many of the reforms would cut sentences for drug crimes — which reflects a growing consensus that nonviolent drug offenses aren't as bad as violent crimes. Drug prisoners are about half of all federal prisoners (unlike in states, where violent crime is the biggest cause of incarceration). That means that many of the Safe Justice Act's biggest reforms would target the largest slice of the federal population....

Most changes to prison sentences in Congress have focused on cutting mandatory minimum sentences, which force judges to sentence people to five, 10, or 20 years for certain drug crimes. But across-the-board cuts to mandatory minimums have been met with serious resistance from old-school Republicans, including Senate Judiciary Chair Chuck Grassley (R-IA). The House's solution, via the Safe Justice Act, isn't to reduce the mandatory minimums themselves — but to narrow the range of people who they apply to. Instead of someone who's convicted of trafficking a certain amount of cocaine being automatically sentenced to 10 years, for example, he'd only trigger the 10-year minimum if he were also a leader or organizer of an organization of five or more people. And even then, the bill says that judges can override the mandatory minimum if the defendant doesn't have much of a criminal history, or has a serious drug problem.

The bill would also make it possible for more people to be sentenced to probation instead of getting sent to prison. It would allow drug offenders to get probation if they'd been convicted of low-level drug crimes before. It would encourage judges to give probation to first-time low-level offenders. And it would encourage districts to start up drug courts and other "problem-solving courts"; some states have found these are better ways to treat some addicts than prison is....

Current prisoners whose sentences would have been affected by the bill's front-end reforms could apply to get their sentences reduced that way. But the Safe Justice Act would also give them another way to reduce their sentences: by getting time off for rehabilitation. Under the bill, every federal prisoner would get an individual case plan, based on what particular prison education, work, substance abuse, or other programs are the best fit for his needs. For every month a prisoner follows the case plan, he'd get 10 days off his prison sentence — meaning a prisoner with a perfect behavior record could get his sentence reduced by a third. (Prisoners serving time for homicide, terrorism, or sex crimes aren't eligible for time off, but that's a very small slice of the federal prison population.) The logic is that prisoners who want to rehabilitate themselves, and whose good behavior shows they're succeeding, shouldn't be forced to spend extra time in prison just for prison's sake.

The bill goes even further when it comes to probation — which affects many more people than prison. For every month of perfect behavior on probation, the offender would get 30 days off the end of his sentence — essentially cutting the probation term in half. If the offender violated probation, on the other hand, there would be a set of gradually escalating punishments, instead of an automatic ticket back to prison....

In the year 2015, it is extremely hard to get any sort of bill through Congress. And Sensenbrenner, Scott, and their fellow reformers have a narrow window before the presidential campaign saps Congress of any will to act it has left. So the barriers are pretty high. But this isn't, in itself, supposed to be a polarizing bill. The presence of Sensenbrenner and other old-school Republicans reflects that. And this is something that both houses of Congress have been debating for some time.

If House leadership decides to snatch up the Safe Justice Act and bring it to the floor quickly, it might give the Senate enough time to act. Maybe they'll be interested in the provisions that would make it a little harder for the federal government to treat regulatory violations as crimes; that's a pet cause of conservatives, even those who aren't otherwise committed to reforming criminal justice.

Still, House leadership might not be interested. But this is the broadest bill that's been introduced during the current wave of criminal justice reform, and it's a marker of just how much consensus there is among reformers in both parties when it comes to reducing federal incarceration.

June 26, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)