Wednesday, February 04, 2015
A positive perspective on possible prison reform emerging from Congress
This lengthy new article in The National Journal provides an interesting and informative look at the politics and people at the center of federal sentencing and prison reform discussions. The piece's headlined highlights its themes: "This Is How Justice Reform Can Actually Happen This Year: Chuck Grassley's power will change the dynamics of sentencing reform. But there's still a bipartisan way forward in the Senate." The full piece is a must-read for anyone closely following congressional reform realities, and here is how the article starts:
The rise of Sen. Chuck Grassley to the head of the Judiciary Committee has made a lot criminal-justice reform advocates nervous.
Four months ago, before Republicans took back the Senate, it appeared that reducing mandatory minimums had overcome crucial hurdles. The Smarter Sentencing Act, which would reduce mandatory minimums for some drug offenders, passed out of committee in January 2014 and attracted a roster of high-profile backers, from former GOP vice presidential nominee Paul Ryan to progressive leader Elizabeth Warren of Massachusetts. Potential 2016 presidential candidates such as Sens. Rand Paul and Ted Cruz had decried mandatory minimums. Even President Obama and the Koch brothers, who have spent millions against him, agreed the sentencing requirements had to be reduced.
But, like many conservatives who came to power in an era when Republicans branded themselves as the "tough on crime" party, Grassley has made it clear that he sees the steady reduction in violent crime in the United States over the last 30 years as a direct reflection of more-effective policing strategies. And he believes that mandatory minimum laws that ensure criminals stay locked up have been key to that progress.
Grassley's posture toward mandatory minimums has given some advocates pause. "I do think we can work with him," Sen. Jeff Flake, R-Ariz., a member of the Judiciary Committee, said of Grassley. "He knows some changes need to be made, but it does influence how far you can go if the chairman stands opposed."
In a Democratic-controlled Congress, many saw a clear path for reducing mandatory minimums. A handful of vocal GOP supporters have continued to say justice reform should remain a key priority in the new Senate. But with Grassley in charge, the path forward for criminal-justice reform will likely look very different.
And we may get our first true glimpse of it next week — when GOP Sen. John Cornyn of Texas introduces a rare bill that could actually get through Congress and be signed by the president. That legislation would be similar to what was known as the Recidivism Reduction and Public Safety Act in the 113th Congress. That bill was also bipartisan but far less contentious than the Smarter Sentencing Act among the Republican rank-and-file. Even Grassley voted it out of committee last year, where it passed 15 to 2. Many of the same members are still sitting on the committee with a few GOP additions, including Thom Tillis of North Carolina and David Perdue of Georgia.
The bill next week will focus on transitioning prisoners back into the community after they have served their time. It requires that each inmate undergo a risk assessment to evaluate his or her propensity for recidivism. Then it allows those deemed medium- and low-risk to earn credits for participating in programs such as job training or substance abuse counseling. Certain well-behaved and low-risk offenders could then use those credits to serve out the final days of their sentences under some kind of community supervision.
Grassley's office insists that it is early, and no decisions have been made on what bills will make it through the committee. There is an attorney general to confirm and more on the committee's docket that comes before discussions about far-reaching justice reform. But, shuffling down the hallways of the Dirksen Senate Office Building in January, Grassley rattled off his top three goals for the committee. "Juvenile-justice reform, patent trolling, and ... prison reform," he said. "There are some things where there is a pretty good shot of getting some bipartisan agreement." And, if the Senate GOP's No. 2 introduces the bill, it will make it harder for Grassley to ignore.
February 4, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Tuesday, February 03, 2015
A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos
If the wealthy truly have extraordinary influence on modern federal politics and policies, a notable defendant serving a mandatory 55-year sentence as a result of a few small marijuana sales ought to be getting out of prison before too long. I say this because, according to this Daily Beast piece, my former client Weldon Angelos is now a "poster boy" for the latest Koch-brothers-backed political effort. This piece is headlined "The New Face of the Koch Campaign" and here is its subheading: "A father of two was sentenced to 55 years in jail for selling pot. The Koch brothers want to help set him free and make him the face of their new campaign for criminal justice reform." Here are excerpts:
Weldon Angelos could have hijacked a plane and spent less time in jail. But due to mandatory sentencing laws, the father of two was sentenced to 55 years in jail for selling pot — a term so long even the judge who gave it to him protested its injustice. A group backed by the Koch brothers agrees, and is now fighting to get him out of prison.
Angelos is an extreme case: even though the crime was considered non-violent, Angelos carried a firearm during a series of marijuana sales to a Salt Lake City police informant — so federal mandatory minimums required that he be put in jail until he’s 80 years old. Judge Paul Cassell protested the sentence when he was forced to make it in 2004, a move he told The Daily Beast he considers “the most unjust, lengthy sentence that I had to hand down.”...
Angelos is now 35 years old and has spent some 11 years behind bars. He has more than 40 years left to go. Even though his crime was non-violent, parole is not an option at the federal level. His only hope for relief from his sentence is an order by the president.
“If we’re going to deprive someone of liberty, and deal with the high cost of incarceration, it better solve a problem. And in this case, it doesn’t solve any problem,” argued Mark Osler, Angelos’ lawyer, who filed a clemency petition on his behalf in 2012.
This is where the Koch brothers come in. The case is being highlighted by Koch-backed group Generation Opportunity, which targets millenials, in a broader campaign to press for criminal justice reforms this year. They will kick off the campaign with a documentary highlighting Angelos’ predicament, premiering at Washington, D.C.’s Newseum next week. “[This year] offers a unique moment in history in which people of different backgrounds and political leanings are coming together to facilitate a substantive dialogue on how to fix [the criminal justice system],” said Evan Feinberg, the group’s president. “We can work towards a more just system that reflects the rule of law without overcriminalizing non-violent offenses.”
The new campaign will target the overcriminalization of non-violent crime, mandatory minimum laws, and helping criminals who have served their sentences reintegrate into society. The demilitarization of police and the excesses of civil asset forfeiture will also be addressed.
Generation Opportunity worked with Families Against Mandatory Minimums on the documentary. FAMM founder Julie Stewart was in the room during Angelos’ first sentencing hearing. It was, she said, a severe example of a worrisome trend in the criminal justice system....
“A lot of people just thought that because of the amount of time my brother was [sentenced to], he had done something terrible, just because of the ignorance that is out there about mandatory sentencing,” said Lisa Angelos, Weldon’s older sister and advocate. “Before the case, I had no idea that this was possible in America.” The judge who was forced to hand down the sentence, Paul Cassell, said the Angelos case is an example of “clear injustice marring the public perception” of the federal courts — and victimizing taxpayers who have to pay to keep him locked up.
“We have in place in our country today some very draconian penalties that distort our whole federal sentencing scheme,” Cassell said. “When people look at a case like Weldon Angelos and see that he got 55 years, and they see other cases where victims have gotten direct physical or psychological injuries and don’t see a similar [result] from the system, they start to wonder if the system is irrational.”
When he was sent to prison, Angelos’ children were small, now both are in their teens. Without their father, the family fell on hard financial times. His children rarely talk to him, Weldon’s sister says, because they can’t afford a cell phone on which they can be reached. “When I tell him stories about his kids, you can tell how very hard it is for him to hear it… to know that he can’t be here,” Lisa Angelos said. “It’s destroyed him in many ways.”
The Angelos’ have waited for more than two years for word on their executive clemency request. The average successful clemency request takes approximately four years, according to his lawyer. Weldon Angelos deserves clemency, Osler said, because his sentencing “doesn’t correlate in this country with what’s wrong, and what those wrongs deserve.”
Long-time readers are likely familiar with the Angelos case, which came to my attention on a few months after I started this blog 11 years ago. I litigated pro bono, unsuccessfully, Weldon's 2255 motion with claims (that I still find compelling) that his prosecution and sentencing involved violations of the Second, Fifth, Sixth and Eighth Amendments. I continue to hope Weldon will receive clemency or some other form of relief soon not merely to remedy the injustice of his extreme prosecution and sentencing, but to vindicate critical constitutional principles.
Related prior posts providing some Angelos case history:
- Judge Cassell's remarkable, and remarkably disappointing, decision in Angelos
- Cert denied in Angelos mandatory minimum case
- NYU Center files amicus in Angelos case
- An argument that the Second Amendment and Heller should help Weldon Angelos
- Weldon Angelos files 2255 motion
- A request for a commutation for Weldon Angelos
- "White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?
February 3, 2015 in Clemency and Pardons, Examples of "over-punishment", Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack
Tuesday, January 13, 2015
SCOTUS unanimously rejects defense effort to limit reach of sentence enhancement in federal robbery statute
The US Supreme Court this morning handed down an impressively short unanimous opinion in Whitfield v. US, No. 13-9026 (S. Ct. Jan. 13, 2015) (available here), which swiftly rejects a bank robber's attempt to limit the reach of a provision of the statute with which he was convicted. Here is the start of the opinion by Justice Scalia for the Court, as well as a few passages that my most interest sentencing fans:
Federal law establishes enhanced penalties for anyone who “forces any person to accompany him” in the course of committing or fleeing from a bank robbery. 18 U. S. C. §2113(e). We consider whether this provision applies when a bank robber forces someone to move with him over a short distance....
In an attempt to support his position that “accompany” should be read to mean “accompany over a substantial distance,” Whitfield observes that a forced-accompaniment conviction carries severe penalties: a mandatory minimum sentence of 10 years, and a maximum sentence of life imprisonment. In 1934, a forced-accompaniment conviction could even be punished with death. Act of May 18, 1934, ch. 304, §3, 48 Stat. 783. The severity of these sentences, Whitfield says, militates against interpreting subsection (e) to capture forced accompaniment occurring over a small distance.
But it does not seem to us that the danger of a forced accompaniment varies with the distance traversed. Consider, for example, a hostage-taker’s movement of one of his victims a short distance to a window, where she would be exposed to police fire; or his use of the victim as a human shield as he approaches the door. And even if we thought otherwise, we would have no authority to add a limitation the statute plainly does not contain. The Congress that wrote this provision may well have had most prominently in mind John Dillinger’s driving off with hostages, but it enacted a provision which goes well beyond that. It is simply not in accord with English usage to give “accompany” a meaning that covers only large distances.
Saturday, January 10, 2015
SCOTUS orders new briefing and argument on ACCA's constitutionality in Johnson!?!?!
The US Supreme Court on Friday afternoon added a remarkable twist to what had been a small sentencing case, a case which had its (first) SCOTUS oral argument earlier this Term, via this new order:
13-7120 JOHNSON, SAMUEL V. UNITED STATES
This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: "Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague." The supplemental brief of petitioner is due on or before Wednesday, February 18, 2015. The supplemental brief of the United States is due on or before Friday, March 20, 2015. The reply brief, if any, is due on or before Friday, April 10, 2015. The time to file amicus curiae briefs is as provided for by Rule 37.3(a). The word limits and cover colors for the briefs should correspond to the provisions of Rule 33.1(g) pertaining to briefs on the merits rather than to the provision pertaining to supplemental briefs. The case will be set for oral argument during the April 2015 argument session.
As some readers likely know, and as Will Baude effectively explains in this new post at The Volokh Conspiracy, "Justice Scalia has been arguing with increasing force that the Act is vague, and the reargument order suggests that there’s a good chance he may finally have convinced his colleagues that he’s right."
This strikes me as huge news, especially because I think any ruling that part of ACCA is unconstitutionally vague would be a substantive constitutional judgment that should get applied retroactively to hundreds (and potentially thousands) of federal prisoners serving mandatory minimum terms of 15 years or more. US Sentencing Commission data suggests that perhaps 5000 or more federal defendants have been sentenced under ACCA over the last decade, though I would guess the majority of these cases did not hinge on the ACCA subprovision that SCOTUS might now find unconstitutional.
Monday, January 05, 2015
"Is Obama Finally Ready To Dial Back The War On Drugs?"
The title of this post is the headline of this lengthy Forbes piece by Jacob Sullum, which provides preview of sorts of of some of the biggest federal criminal justice issues to keep an eye on in the year to come. The piece merits a full read, and here are excerpts:
Some critics of the war on drugs — a crusade that Obama had declared “an utter failure” in 2004 — predicted that he would improve in his second term. Safely reelected, he would not have to worry that looking soft on drugs would cost him votes, and he would finally act on his avowed belief that the war on drugs is unjust and ineffective. As Obama embarks on the third year of his second term, it looks like the optimists were partially right, although much hinges on what he does during the next two years. Here are some of the ways in which Obama has begun to deliver on his promises of a more rational, less punitive approach to psychoactive substances:
Marijuana Legalization. Although the federal government cannot stop states from legalizing marijuana, it can make trouble for the ones that do by targeting statelicensed growers and retailers. Under a policy announced in August 2013, the Justice Department has declined to do so, reserving its resources for cannabis operations that violate state law or implicate “federal law enforcement priorities.”...
Federal Marijuana Ban.... Contrary to the impression left by the president, the executive branch has the authority to reschedule marijuana without new legislation from Congress. In September, a few days before announcing that he planned to step down soon, Holder said whether marijuana belongs in the same category as heroin is “certainly a question that we need to ask ourselves.” Since the Controlled Substances Act empowers Holder to reclassify marijuana, it would have been nice if he had asked that question a little sooner. Still, Holder was willing to publicly question marijuana’s Schedule I status, something no sitting attorney general had done before.
Sentencing Reform. Obama supports the Smarter Sentencing Act, which would make the 2010 crack penalty changes retroactive, cut the mandatory minimums for certain drug offenses in half, and loosen the criteria for the “safety valve” that allows some defendants to escape mandatory minimums. Beginning last year, Holder has repeatedly criticized our criminal justice system as excessively harsh. Under a new charging policy he established last year, hundreds of drug offenders could avoid mandatory minimums each year....
Clemency. After a pitiful performance in his first term, Obama has signaled a new openness to clemency petitions. Last April an unnamed “senior administration official” told Yahoo News the administration’s new clemency guidelines could result in “hundreds, perhaps thousands,” of commutations. Obama’s total so far, counting eight commutations announced a few weeks ago, is just 18, but he still has two years to go....
A few months ago, Obama chose former ACLU attorney Vanita Gupta, a passionate critic of the war on drugs who emphasizes its disproportionate racial impact (a theme Obama and Holder also have taken up), to head the Justice Department’s Civil Rights Division. A year before her appointment, Gupta had criticized Holder’s moves on drug sentencing as an inadequate response to mass incarceration. The previous month, she had endorsed marijuana legalization. The next two years will show whether Gupta’s appointment is a sop to disappointed Obama supporters or a signal of bolder steps to come.
If Obama actually uses his clemency power to free thousands, or even hundreds, of drug war prisoners, that would be historically unprecedented, and it would go a long way toward making up for his initial reticence. He could help even more people by backing sentencing reform, which has attracted bipartisan support in Congress. And having announced that states should be free to experiment with marijuana legalization, he could declare the experiment a success....
If none of those things happens, Obama’s most significant drug policy accomplishment may be letting states go their own way on marijuana legalization. Even if our next president is a Republican drug warrior, he will have a hard time reversing that decision, especially given the GOP’s lip service to federalism.
This piece reviews some important basics, though hard-core sentencing fans know that there is a lot more the Obama Administration could be doing to radically reshape the battlefield in the modern federal drug war.
On the marijuana front, for example, DOJ could (and I think should) play an significant role defending Colorado as it gears up a response to the recent Supreme Court suit brought Nebraska and Oklahoma attacking its marijuana reform efforts. In addition, DOJ could (and I think should) be willing to interpret broadly the recent provisions enacted by Congress precluding it from using funds to interfere with state medical marijuana reform efforts.
On the broad drug war front, Prez Obama and DOJ could not only support the Smarter Sentencing Act but even try to give renewed life to the Justice Safety Valve Act. The JSVA, which Senator Rand Paul introduced and robustly promoted, would effectively reform the operation of all mandatory minimum sentencing provisions. Also Prez Obama and DOJ, especially in light of renewed concerns about racial biases in criminal justice systems, could (and I think should) return to the issue of crack sentencing reform. Specifically, given the apparent success of the Fair Sentencing Act of 2010, which only reduced the crack-powder disparity from the ridiculous 100-1 ratio to a ghastly 18-1, the Prez ought to get behind what I would call the Fully Fair Sentencing Act to eliminate any and all crack-powder sentencing disparity completely.
January 5, 2015 in Clemency and Pardons, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, December 16, 2014
Notable NPR coverage of the "Human Casualties Of Mandatory Sentencing"
I am pleased and intrigued to see that National Public Radio seems to be starting a deep dive into some of the personal stories surrounding the debate over federal mandatory minimum. This introduction, headlined "From Judges To Inmates, Finding The Human Casualties Of Mandatory Sentencing," sets up the discussion this way:
This year, everyone from Attorney General Eric Holder to Tea Party Republicans in Congress has argued those stiff mandatory minimum prison sentences do more harm than good for thousands of drug offenders. Legislation to cut the tough-on-crime penalties has stalled on Capitol Hill, but it's likely to be reintroduced in 2015. Meanwhile, the White House and the Justice Department have taken the unprecedented step of asking for candidates who might win early release from prison through presidential pardons or commutations in the final years of the Obama presidency. That effort, known as Clemency Project 2014, is moving slowly.
Amid the backdrop of debate inside Washington and across the country, NPR decided to focus on the human toll of these mandatory prison sentences. We talked with judges who expressed tearful misgivings about sending people away for the rest of their lives for crimes that involved no violence and a modest amount of drugs. We found a newly-released inmate trying to reacquaint herself with her community in the Florida panhandle and rebuild ties with her grieving children after 17 years away from home. And we went inside a medium-security prison in New Jersey to find a lifer who says he deserves another chance. These people acknowledge they broke the law and accept the need for punishment. But they say their decades-long incarcerations cast a shadow that lingers over their families, damage that far outweighs the wrongs they did to put them in prison.
The series' first lengthy piece here is titled "Judge Regrets Harsh Human Toll Of Mandatory Minimum Sentences," has lots of good content and quotes from Judge John Gleeson and Professors Rachel Barkow and Bill Otis.
December 16, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Friday, December 05, 2014
District Judge pushes federal prosecutors to back off extreme trial penalty sentence
As reported in this Reuters article, headlined "Prosecutors rethink convict's sentence after judge cites Holder," a federal judge earlier this week put some bite into the Attorney General's advocacy for reducing reliance on extremely long prison term by urging local federal prosecutors to reconsider an extreme sentence driven by application of mandatory minimum sentencing provisions. Here are the details of an interesting on-going sentencing story:
Prosecutors are reconsidering a 50-year sentence for a convicted robber and drug dealer, after a judge on Wednesday suggested they call Attorney General Eric Holder to ask him whether it was fair to "punish" a man for rejecting a plea deal and opting for a trial.
Randy Washington, 27, the Bronx man who faced the lengthy term after turning down a 10-year plea deal and getting convicted at trial, had been scheduled for sentencing in New York federal court on Wednesday. But the hearing was adjourned so prosecutors could rework a deal carrying a shorter sentence, after U.S. District Judge Richard Sullivan repeated his criticism that the 50-year mandatory minimum sentence appeared to "punish" Washington for going to trial.
Sullivan even suggested prosecutors call Holder himself to ask if their actions comport with his recent directive cautioning prosecutors against routinely using the threat of harsher sentences to induce defendants to plead guilty. "He won't look with pride on what you're doing here today," Sullivan said....
In September, Holder issued a memo advising prosecutors to avoid employing the prospect of longer mandatory minimum prison terms in plea talks. Sullivan cited the memo Wednesday in criticizing the sentence for Washington, who was convicted of robbery, narcotics and related charges.
In July, Sullivan said the potential 50-year term was legal but "unnecessary and unjust" and in a rare move pushed Manhattan U.S. Attorney Preet Bharara's office to seek a reduced sentence. In response, prosecutors offered to drop a 10-year enhancement based on a prior felony conviction for Washington.
They separately offered Washington a new 25-year deal, which Washington rejected as it included an appellate waiver, a provision Sullivan questioned on Wednesday. "I'm not sure there's great consistency in the position that says, 'We agree that 50 years is too long, but it's too long only if you give up your appellate rights,'" he said.
After prosecutors consulted with Bharara himself, Assistant U.S. Attorney Telemachus Kasulis told Sullivan they would consider a 25-year deal without requiring Washington to waive all of his appellate rights. Sentencing was rescheduled for Dec. 12.
Tuesday, December 02, 2014
SCOTUS hears argument on application of mandatory minimum sentencing provision in Whitfield
The Supreme Court has another notable criminal justice case on tap for oral argument this morning, and this effective SCOTUSblog preview, titled "Parsing “accompany” in the federal bank robbery statute," provides all the details and context. Here is how the preview starts and ends:
One part of the federal bank robbery statute, 18 U.S.C. § 2113(e), provides that a bank robber who “forces another person to accompany him” will receive a minimum sentence of ten years in prison, with a life sentence as a maximum. [Tuesday December 2] the Court will hear oral arguments on how broadly this provision should apply — and in particular, whether it should apply to a North Carolina man who, while attempting to elude capture after a failed bank robbery, required the elderly woman in whose home he was hiding to move with him from one part of her home to another. [This] hearing could also tell us whether the Justices regard this case as a run-of-the-mill statutory interpretation case or instead — like last month’s Yates v. United States and last Term’s Bond v. United States — as the latest in a series of criminal cases in which overzealous federal prosecutors have overstepped their authority....
At last month’s argument in Yates, Justice Samuel Alito — who is normally the government’s most reliable ally in criminal cases — suggested to the lawyer arguing on behalf of the United States that, although the federal government had a variety of good arguments, it was nonetheless asking the Justices to endorse too expansive an interpretation of a federal law targeting the destruction of evidence. Whitfield and his lawyers no doubt hope that the Justices will be equally dubious of the government’s interpretation in this case. On the other hand, although Whitfield ultimately proved to be a bumbling bank robber, his conduct was unquestionably far more grave than John Yates’s destruction of some undersized fish: even if he only intended to hide from police after the failed bank robbery and never meant to harm [his elderly victim], she did die. And that may be enough to make several of the Justices less skeptical, and significantly more serious, at Tuesday’s oral argument.
Wednesday, November 19, 2014
Massachusetts special commission urges repeal of all drug mandatory minimums
As reported in this local article, "a special commission studying the state's criminal justice system recommended eliminating mandatory minimum sentences for all drug offenses in Massachusetts." Here is more about the commission's work and recommendations to date:
The commission also voted to recommend parole eligibility for all state prison sentences after an inmate has served at least two-thirds of the lower end of their sentence, except in cases of murder or manslaughter, and to maintain the current parole eligibility standards in houses of correction of half-time served on sentences of 60 days or more.
The commission, formed over two years ago, is trying to produce an in-progress report before the end of the year to inform Governor-elect Charlie Baker's administration. Baker, during his campaign for governor, voiced support for striking mandatory minimums for non-violent drug offenses as part of a broader approach to combat substance abuse.
The Special Commission to Study the Commonwealth's Criminal Justice System on Tuesday began debating legislative recommendations members plan to make to strengthen post-release supervision, improve prisoner reentry outcomes and reduce recidivism, and address overcrowding in the state's jails and prisons.
"Drug offenses are a huge reason we have so much overcrowding in the prison system," said Patty Garin, a criminal defense attorney and co-director of the Northeastern University Law School Prisoners Assistance Program. Garin and other commission members argued judges should be able to practice evidence-based sentencing, and suggested mandatory minimums disproportionately impact poorer communities and communities of color.
The 9-2 vote, with Attorney General Martha Coakley's representative abstaining, came over the objections of Cape and Islands District Attorney Michael O'Keefe, who sits on the commission. O'Keefe did not attend Tuesday's meeting, but submitted a letter expressing his opposition and later told the News Service that mandatory minimums are a tool prosecutors "use and use very effectively to stem the flow of drugs into communities."
"We utterly reject this notion that the criminal justice system is warehousing these non-violent drug offenders. That simply is not the case. People have to work extremely hard to get themselves into jail here in the Commonwealth of Massachusetts," O'Keefe said.
The commission was formed by Gov. Deval Patrick and the Legislature in 2012, and Undersecretary of Criminal Justice Sandra McCroom said she hopes to publish a report by the end of the year, though she acknowledged that all of the commission's work likely won't be completed by then. Patrick has also reconstituted the Sentencing Commission, which has met twice over the past two months and whose work could coincide with the criminal justice commission's recommendations....
Public Safety Secretary Andrea Cabral, who does not have a vote on the commission, said she would have carved out an exception from the mandatory minimum recommendation for trafficking crimes. While supporting enhanced drug treatment options, she said not all people convicted of drug offenses are struggling with addiction, and some are driven by money. "I think there should be a line drawn on trafficking," Cabral said.
Others on the commission, including Garin and Anthony Benedetti, chief counsel at the Committee for Public Counsel Services, argued that judges should be given discretion even in trafficking cases, expressing confidence that harsh sentences will be issues for those who deserve them. Worcester County Sheriff Lewis Evangelidis, a Republican, and a staff member representing Judiciary Committee Vice Chairman Rep. Chris Markey (D-Dartmouth) voted against the recommendation to do away with mandatory minimum sentences. "To me it's overreaching and too broad," said Evangelidis, a former state representative....
O'Keefe, the recent past president of the Massachusetts District Attorneys Association, expressed concern that if the Legislature were to eliminate mandatory minimum drug sentences, the courts would see defendants shopping for more lenient judges to avoid prison time. "Mandatory minimum sentences came into being in the first place to ensure relative uniformity in the sentencing of individuals distributing drugs," O'Keefe said....
Attorney General-elect Maura Healey has also backed ending mandatory minimums for non-violent drug offenses, and during her campaign called for expanding the use of drug courts.
Tuesday, November 18, 2014
Investigation reveals "mandatory" Minnesota gun sentence not imposed in majority of cases
This interesting local investigative press report from Minnesota provides further evidence that mandatory minimum sentencing schemes are rarely applied consistently or evenly. The article is headlined "Mandatory sentences not always the case for Minnesota gun crimes," and here are excerpts:
Hennepin County judges have come under fire recently for their sentencing habits. Several top Minneapolis leaders are claiming some judges are soft on gun crimes, allowing dangerous criminals back on the streets when they could be in prison. To separate fact from fiction, KARE 11 Investigators analyzed every sentence for every felony gun crime during the past three years. We found that judges do not hand down mandatory minimum sentences in the majority of gun crime cases.
Under Minnesota law there is a mandatory minimum amount of time criminals who use a gun should be sentenced to serve in prison. But our KARE 11 investigation found the amount of time they are sentenced to prison, if they get prison time at all, varies greatly from court to court and judge to judge....
Our analysis of sentencing data provided by the Minnesota Sentencing Guidelines Commission reveals in gun cases across all of Minnesota, judges give less than the mandatory minimum sentence 53% of the time. In Hennepin County, that jumps to 56%. Judge Richard Scherer, Judge Susan Robiner, Judge Mark Wernick, Judge Joseph Klein and Judge Daniel Moreno downward depart from mandatory sentencing in felony gun cases in more than two thirds of the cases they oversee. "And that's too much" said Hennepin County Attorney Mike Freeman.
Freeman's office routinely butts heads with district judges when it comes to sentencing in gun cases, especially when the conviction is for a felon being in possession of a handgun. On average in Minnesota, prosecutor's object to a judge's reduced sentence in gun cases only 12% of the time. But in Hennepin County, it happens in nearly 30% of gun cases. "I think the numbers speak for themselves. There's a different climate on this bench than there is elsewhere in this state," said Freeman.
But 4th District Chief Judge Peter Cahill disagrees. He says judges cannot be a rubber stamp for police and prosecutors, and the most important thing for them is to be fair and impartial. "We can't worry about stats," said Cahill. When KARE 11 Investigative reporter A.J. Lagoe asked Chief Judge Cahill if mandatory did not mean mandatory in Minnesota, Cahill responded, "not really." He says calling the state's mandatory minimum sentences mandatory is a "bit of a misnomer."
Cahill said the issue is very complex, and added "If you read the statute specifically, the legislature gave the court the ability to depart from the gun sentencing scheme." There is a section in Minnesota's minimum sentencing law that allows judges to disregard mandatory sentencing in gun cases if there are "substantial and compelling" reasons to do so. “If you read the statute specifically, the legislature gave the court the ability to depart from the gun sentencing scheme.”
Are there truly "substantial and compelling reasons" to hand down a lesser sentence in the majority of gun cases? It depends on who you ask. In the wake of a series of deadly summer shootings, Minneapolis's Police Chief Janee Harteau said, "we are arresting people who should have been kept in jail." Harteau and City Council President Barb Johnson began publically calling out Hennepin County judges for being soft on gun crimes and allowing dangerous criminals back on the street unnecessarily. "I am calling to them publicly this time to take gun crime seriously," said Johnson. "The penalties are there, impose them! When someone is arrested with a gun they need to do time!"
Minnesota sentencing statutes have a section referred to by the legal community as "mandatory mandatory sentences." If you're convicted a second time for a gun offense, judges are given no wiggle room. The law requires them to hand down at least the mandatory minimum. "Those are what we call hard 'mandatories' where there's no leeway for the court and we do impose those," said Chief Judge Cahill.
But KARE 11's investigation found that's not always the case. Take for example the rap sheet of Khayree Copeland. Copeland was busted in 2008 as a juvenile for possession of a short barreled shotgun. In 2011, now an adult, he was caught again with a gun. As a felon in possession, the mandatory minimum sentence he was facing was five years in prison. However Judge Robiner sentenced him to probation. Later that same year, Copeland was arrested again while carrying a handgun. His second offense as an adult, this time the law requires he get the "mandatory- mandatory" five years. But court records show Judge Richard Scherer gave him only four years in prison. "Members of my office protested both times and rightly so," said Freeman....
NOTE: While Hennepin judges see far and away more gun crime cases than any other jurisdiction, Carlton County judges are the most likely to cut a defendant a break. Judges there gave less than the mandatory minimum 100% of the time in the past three years.
Wednesday, November 12, 2014
"A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle"
The title of this post is the title of this notable and timely new piece authored by Avi Kupfer and available via SSRN. Here is the abstract:
For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, the Supreme Court's guidance on sentencing ACCA defendants has been unclear. The resulting ambiguity creates inequity between defendants and fails to give them fair warning of the statute's scope. This ambiguity also depletes the resources of courts, defendants, and prosecutors and prevents the statute from realizing its full potential of deterring violent crime.
This Note argues that rather than allowing this debacle to continue, Congress should delegate to a federal agency the task of compiling a binding list of state statutes that qualify as predicate offenses. Under this approach, the states would assist the federal agency by providing initial guidance on their ambiguous statutes. The U.S. Sentencing Commission has the manpower, subject familiarity, and institutional incentives to build and maintain the appendix, and state sentencing commissions would make ideal partners. In states that do not have sentencing commissions, comparable agencies and even properly incentivized attorneys general may be able to aid the federal Sentencing Commission. Congress should leverage this undertaking to resolve related definitional questions about the meaning of a violent crime in other areas of federal law.
Monday, November 03, 2014
Judge Rakoff highlights prosecutorial sentencing power in explaining "Why Innocent People Plead Guilty"
Regular readers know that US District Judge Jed Rakoff has become a prominent regular critic of many aspects of the modern federal criminal justice system. In the latest issue of The New York Review of Books, Judge Rakoff provides an astute and effective review of how prosecutors have come to possess considerable unregulated sentencing powers in our modern system dominated by plea bargainiang. His lengthy article's title, "Why Innocent People Plead Guilty," spotlights one key aspect of Judge Rakoff's concerns with the current system. But, as these passages reveal, his central theme in this must-read piece is unregulated prosecutorial powers:
The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.
The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage. In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone....
Until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved — unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge — but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.
In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little. Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.
But what really puts the prosecutor in the driver’s seat is the fact that he — because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought — can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.
Long-time readers know that this article gets to the heart of debates that Bill Otis and I have often had over the virtues and vices of mandatory minimum sentencing provisions. Because Judge Rakoff comes down on my side of this debate, few should be surprised to hear that I am a big fan of this article (though I wish Judge Rakoff had also discussed and lamented how acquitted conduct sentencing rules in the federal system further enhances prosecutors' charging/plea/sentencing powers).
Prior related posts on Judge Rakoff's commentaries:
- "Why innocent people plead guilty": Judge Jed Rakoff suggests "tens of thousands of innocent people" have been "coerced into pleading guilty"
- Judge Rakoff calls for fraud guidelines to be "scrapped in their entirety" in favor of a "non-arithmetic, multi-factor test"
- Thoughtful response to Judge Rakoff's call to scrap fraud guidelines
Saturday, October 25, 2014
Due to Alleyne, Kansas Supreme Court requires resentencing of murderer of abortion provider
As reported in this local article, headlined "Kansas Supreme Court vacates Roeder's 'Hard 50' sentence," the top court in the Sunflower State reversed a state mandatory minimum sentence in a high-profile murder case. Here are the details:
The Kansas Supreme Court on Friday upheld the premeditated first-degree murder conviction of Scott Roeder, convicted in the 2009 church killing of Wichita abortion provider Dr. George Tiller, but vacated his “Hard 50” life sentence.
In ordering Roeder’s sentence remanded to the Sedgwick County District Court, the Kansas high court noted the 2013 U.S. Supreme Court decision that deemed a sentence of 50 years without the possibility of parole must be levied by a jury as opposed to the trial judge.
The Kansas court has vacated and remanded at least five other Hard 50 sentences in light of the U.S. Supreme Court decision in Alleyene vs. United States....
The court rejected all of Roeder’s other arguments in his bid for a new trial. Among those arguments was that Sedgwick County District Court Judge Warren Wilbert declined to allow Roeder to present a voluntary manslaughter defense based on the “imperfect defense of others” concept. Roeder never denied at trial that he intended to shoot and kill Tiller in the vestibule of the doctor’s Wichita church before services on Sunday, May 31, 2009, but said he did so to prevent the abortion provider from taking the lives of unborn children.
Roeder, who testified that his anti-abortion activities began after his 1992 conversion to Christianity, said his frustration grew after Tiller was acquitted in 2009 of 19 charges brought by former Kansas Attorney General Phill Kline alleging that Tiller broke state law in performing late-term abortions. Roeder testified that upon learning of Tiller's acquittal, he believed that “nothing was being done” and the legal process had been exhausted....
But the district court ruled that Roeder wasn’t entitled to use a necessity defense, based in part on a previous Kansas Supreme Court ruling — also involving an anti-abortion case — that a person isn’t entitled to a such a defense if the activity they were trying to stop was a legal activity....
“Even for Roeder's professed purpose of stopping all abortions, not just illegal abortions, the Draconian measure of murder was not the only alternative,” Justice Lee Johnson wrote in the unanimous decision. The district court also ruled, and the Supreme Court agreed, that Roeder wasn’t entitled to a voluntary manslaughter defense because no imminent threat existed on that Sunday morning to justify the use of lethal force....
The Kansas Legislature, responding to the U.S. Supreme Court decision in Alleyene, rewrote the Kansas law on Hard 50 sentencing during a special session in 2013. The new law says a jury must determine whether special circumstances exist to impose the increased minimum sentence. But how such new sentencing will be conducted has yet to be determined, as none has yet been conducted in the cases where a Hard 50 sentence has been vacated. Sedgwick County District Attorney Mark Bennett said Friday after the Roeder decision that he intended to conduct such a hearing.
The full 50+ page opinion of the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kansas Oct. 24, 2014), is available at this link.
Monday, October 20, 2014
New top Justice in Massachusetts urges repeal of mandatory minimums for low-level drug offenders
I just came across this notable Boston Globe article discussing this notable speech delivered late last week by the new Chief Justice of Massachusetts Supreme Judicial Court. Here is how the Globe article starts:
The head of the state’s highest court called for an end to mandatory minimum sentences for low-level drug offenders on Thursday, saying they interfere with judges’ discretion, disproportionately affect minorities, and fail to rehabilitate offenders.
Citing the opioid-addiction crisis, Supreme Judicial Court Chief Justice Ralph D. Gants said the state needs to find better ways to treat addicts than sending them to jail. In 2013, 674 people died of opioid overdoses, compared with 338 in 2000. “To those who favor the status quo in the so-called war on drugs, I ask: How well is the status quo working?” Gants said.
Gants, selected as chief justice by Governor Deval Patrick, called on the Legislature to pass laws to abolish mandatory sentencing. His remarks, in his first State of the Judiciary speech, were part of a call for broader changes in the court system. “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism,” he said.
Sworn in just 80 days ago, Gants said he will convene a group of judges, probation offices, prosecutors, and defense attorneys to study best practices to ensure what he called “individualized, evidence-based sentences.” That means considering mental health or substance abuse treatment as well as time in prison. Mandatory minimum sentences are automatic prison terms for those convicted of certain crimes, limiting judges’ discretion.
Gants’s proposal drew quick praise from members of the Massachusetts Bar Association, his audience at the association’s annual Bench-Bar Symposium in the John Adams Courthouse. Marsha V. Kazarosian, president of the bar association, called Gants’s call to action “a gutsy move.” She said there are “no cookie-cutter remedies” for drug defendants, and that an offender’s background should taken into consideration, and “that’s exactly what a judge is supposed to do.”
Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, the state’s public defender agency agreed. “So many people involved in the criminal justice system have substance abuse and mental health issues,” Benedetti said. “That’s the root of the problem, and this gets back to individual, evidence-based sentencing.”
The proposal was criticized by Essex District Attorney Jonathan Blodgett, head of the Massachusetts District Attorneys Association, who argued that the laws are designed to target drug traffickers, not merely drug users. “The midst of an opiate overdose epidemic is not the time to make it easier for drug traffickers to avoid accountability and incarceration,” Blodgett said. “An experienced trial judge should know that the drug defendants sentenced to incarceration are the ones who carry and use firearms, who flood communities with poison, and who commit the same distribution offenses over and over again.”
Supreme Judicial Court Chief Justice Gants' full speech is worth reading, and here is a notable excerpt from the text:
Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities. In fiscal year 2013, 450 defendants were given mandatory minimum sentences on governing drug offenses. In that year, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses. I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.
The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences. Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence. For all practical purposes, when a defendant is charged with a drug offense with a mandatory minimum sentence, it is usually the prosecutor, not the judge, who sets the sentence.
I have great respect for the prosecutors in this Commonwealth, and for the exercise of prosecutorial discretion that comes with the job; I was a prosecutor myself for eight years. But where there is a mandatory minimum sentence, a prosecutor's discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime. And where drug sentences are effectively being set by prosecutors through mandatory minimum sentences, we cannot be confident that those sentences will be individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses -- the problem of addiction.
Thursday, October 09, 2014
New survey shows significant and growing support for "eliminating mandatory minimum prison sentences for nonviolent offenders"
As reported via this FAMM news release, which is headlined "New Poll Finds 77% of Americans Support Eliminating Mandatory Minimums for Non-Violent Offenses," there is new polling data suggesting that large and growing percentages of Americans favor mandatory minimum sentencing reform. Here are the basic details:
A new Reason-Rupe Public Opinion Survey finds that 77 percent of Americans support eliminating mandatory minimum sentences for non-violent drug offenses. That number is up from 71 percent in December 2013, the last time Reason-Rupe polled on the question. You can find the full survey results here (PDF); mandatory minimums are question 17.
“Almost three decades have passed since the United States instituted harsh mandatory minimums for non-violent drug offenses. During that time, countless lives have been ruined and countless families destroyed. The American people have noticed, and they want no more of it,” said Julie Stewart, president and founder of Families Against Mandatory Minimums.
The poll question Reason-Rupe posed reads as follows: “Would you favor or oppose eliminating mandatory minimum prison sentences for nonviolent offenders so that judges have the ability to make sentencing decisions on a case-by-case basis?”
Seventy-seven percent of respondents said they favored eliminating mandatory minimums, while only 17 percent of respondents said they were opposed. When Reason-Rupe asked the same question in December 2013, 71 percent of respondents were in favor of eliminating mandatory minimums, and 24 percent were opposed.
Tuesday, October 07, 2014
Rolling Stone laments enduring casualties of drug war's mandatory minimums
Rolling Stone magazine has just published this extensive "special report" titled "The Nation's Shame: The Injustice of Mandatory Minimums." The piece details the stories of seven notable low-level drug defendants serving high-level prison sentences. The piece has this subheading: "For decades, lawyers, scholars, and judges have criticized mandatory drug sentencing as oppressive and ineffective. Yet tens of thousands of nonviolent offenders continue to languish behind bars." And here is a portion of the lead into the seven cases profiled:
Widely enacted in the Eighties and Nineties amid rising crime and racially coded political fearmongering, mandatory penalties — like minimum sentences triggered by drug weight, automatic sentencing enhancements, and three-strikes laws — have flooded state and federal prisons with nonviolent offenders. Intended to ensure uniform discipline, these policies simply shifted discretion to prosecutors. Judges lost latitude to tailor sanctions based on whether someone was a kingpin or courier, for example, while [Professor Mark] Osler says, prosecutors gained "a big hammer. The easy way of doing things is to threaten people with a lot of time, and then plead them out," he says. "But easy and justice don't go together very well."...
[T]he drug war is entrenched in decades of prison buildup. Between 1980 and 2010, state incarceration rates for drug crimes multiplied tenfold, while the federal drug prisoner population ballooned by a factor of 20. Every year, taxpayers shell out $51 billion for drug war spending. Meanwhile, 2.2 million people — or a quarter of the world's prisoners — crowd a system that exacts its harshest toll on the most vulnerable. Racism undermines the justice process from initial stop to sentence, and 60 percent of those incarcerated are people of color. Rates of illiteracy, addiction, and mental illness are disproportionately high.
Amid utter congressional deadlock, sentencing reform is the only issue that has cut across partisan bickering to unite such normally irreconcilable voices as Rand Paul, Dick Durbin, Ted Cruz, Elizabeth Warren, Paul Ryan and John Conyers. Yet the proposed Smarter Sentencing Act, which passed the Senate Judiciary Committee in January, has since run aground. The bill would halve key mandatory minimums, make relief under the Fair Sentencing Act available to 8,800 federal crack defendants locked up before 2010 and save $4 billion in the process. More than 260,000 people have been imprisoned under federal drug mandatory minimums, and more will continue to cycle through the system — even as others are granted clemency — as long as reforms remain stalled. At the state level, reforms without retroactive application strand drug defendants in prison even after the laws that put them there are reassessed as unjust. The following seven cases epitomize the rigid regimes of the past, and the challenges involved in dismantling them.
Friday, October 03, 2014
SCOTUS preview guest-post: "Measuring the Dangerousness of Felonies for Sentencing Purposes"
In this post I lamented that the Supreme Court this week did not grant cert on any new sentencing cases. But there is still some sentencing fun on the SCOTUS docket thanks to the Justices seemingly never having enough fun with interpretations of the Armed Career Criminal Act. Helpfully, Professor Stephen Rushin, who filed in an amicus brief in the latest ACCA case, was kind enough to prepare for posting here a thoughtful preview of a case to be argued to the Justices in early November.
With kudos and thanks to Prof Rushin for this material, here is his preview:
What criminal offenses pose the greatest risk of injury to others? This is the empirical question at issue in a case, Johnson v. United States, before the U.S. Supreme Court this coming term. The case stems from the Armed Career Criminal Act (ACCA), which provides for punishment enhancements for offenders previously convicted of burglary, arson, extortion, use of explosives, and any other felony that presents “serious potential risk of injury to another.”
Since the passage of the ACCA, courts and litigants have struggled to determine which felonies pose such a “serious potential risk of injury to another.” The Court has interpreted this so-called residual clause of the ACCA to cover a range of felonies, including attempted burglary and fleeing from a police officer in a motor vehicle.
In Johnson, the Court must now decide whether the residual clause also covers the possession of a short-barreled shotgun. So how dangerous is mere possession of an unlawful weapon? Professors Evan Lee, Eric Johnson, and I recently submitted an amicus brief in the Johnson case, arguing that the ACCA ought to cover these sorts of weapons law violations.
At first, our argument may seem counter-intuitive. How, after all, can mere possession ever pose a “serious potential risk of injury to another?” Well that depends on how you define a “potential risk of injury.” Admittedly, offenses like weapons possession cannot, or usually do not, injure another person directly. But that does not mean that such offenses do not pose “serious potential risk of injury to another.” Congress’s use of the word “potential” in conjunction with the word “risk” suggests that a felony need not be the direct or exclusive source of an injury in order to qualify under the residual clause. We read the ACCA to mean that any offense that facilitates or is otherwise meaningfully associated with highly injury-prone offenses “poses a serious potential risk of injury.”
Of course, this raises the next obvious question—to what extent are weapons law violations, like possession of a short barreled shotgun, associated with injuries to victims? In previous ACCA cases, the Court has turned to a wide range of statistical data to measure the dangerousness of various felony offenses. In each case, the Court has attempted to find accurate statistical measures of how frequently a particular felony offense leads to injuries. The Court then compares this to the approximate injury frequency of injuries stemming from the offenses explicitly enumerated in the ACCA—burglary, arson, extortion, and use of explosives.
This basic methodology makes perfect sense. Since Congress specifically enumerated a small number of offenses as “violent felonies” in the ACCA, the Court should presume that any offense of equal or greater dangerousness also warrants inclusion under the residual clause. But in employing this methodology, the Court has often relied on weak statistical data.
In entering into this ongoing debate, my coauthors and I make a simple recommendation to the Court in our amicus brief. We suggest that the Court should use the National Incident Based Reporting System (NIBRS) in measuring the dangerousness of offenses under the ACCA residual clause. For the unfamiliar, we have traditionally recorded crime data in the U.S. via the Uniform Crime Reports (UCR), which primarily record aggregate-level information on the prevalence of eight major criminal offenses—homicide, aggravated assault, rape, burglary, larceny, arson, and auto-theft. With the exception of homicides, these UCR records little to no details about the circumstances surrounding each offense. Recently, though, the FBI has begun collecting additional crime data through the database known as NIBRS. This system requests information from local law enforcement agencies on 46 different offense categories. NIBRS also groups together criminal offenses into incident-level data. This means that if an offender commits two different offenses as part of a single criminal incident, NIBRS groups these two offenses together for data analysis purposes. For example, suppose that an offender commits an assault in the course of committing a burglary. Traditionally, the UCR would register that event as two separate criminal events. By contrast, NIBRS groups together these two criminal offenses into a single incident. Police agencies that use NIBRS also report information on the circumstances of each criminal incident, including whether the incident resulted in any physical injuries to victims.
Of course NIBRS is not perfect. The NIBRS database is not perfectly representative of the United States. Although NIBRS greatly expands on the number of offense categories traditionally used in the UCR, it still cannot capture every single offense category. Nevertheless, NIBRS represents perhaps the best statistical resource available for measuring the “potential risk of injury” associated with felony offenses. For one thing, NIBRS represents the largest and most comprehensive database on injuries associated with criminal offenses. In addition, because NIBRS groups together multiple offenses into incidents, it allows researchers to measure more accurately the risk associated with criminal offenses. And NIBRS allows the Court to compare the dangerousness of different felony offenses accurately because it uses a consistent methodology across reporting jurisdictions.
So how do weapons law violations stack up compared to the explicitly enumerated felonies listed in the ACCA? In a previous study, Evan Lee, Lynn Addington, and I found that weapons law violations like possession of a short-barreled shotgun were more frequently associated with injuries than burglaries, arsons, or extortions. 5.36 percent of incidents involving weapons law violations in 2010 led to some type of physical injury to a victim, compared to just 4.41 percent of extortions, 1.11 percent of arsons, and 1.02 percent of burglaries.
Of course, these sorts of statistics alone cannot resolve the question before the Court. But we argue that this data cuts in favor of including weapons law violations under the ACCA residual clause.
Monday, September 29, 2014
Notable new AG Holder memorandum on charging policies and plea negotiations
I learned over the weekend that last week Attorney General Eric Holder issued a short memo to DOJ lawyers to provide "Guidance Regarding § 851 Enhancements in Plea Negotiations." This full one-page memo, which is dated September 24, 2014, can be downloaded below. Here are its most notable sentences, with my emphasis added:
The Department provided more specific guidance for charging mandatory minimums and recidivist enhancements in drug cases in the August 12, 2013, "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases." That memorandum provides that prosecutors should decline to seek an enhancement pursuant to 21 U.S.C. § 851 unless the "defendant is involved in conduct that makes the case appropriate for severe sanctions," and sets forth factors that prosecutors should consider in making that determination. Whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy. Prosecutors are encouraged to make the§ 851 determination at the time the case is charged, or as soon as possible thereafter. An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty. This is consistent with long-standing Department policy that "[c]harges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant's conduct." "Department Policy on Charging and Sentencing," May 19, 2010.
While the fact that a defendant may or may not exercise his right to a jury trial should ordinarily not govern the determination of whether to file or forego an § 851 enhancement, certain circumstances -- such as new information about the defendant, a reassessment of the strength of the government's case, or recognition of cooperation -- may make it appropriate to forego or dismiss a previously filed § 851 information in connection with a guilty plea. A practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea, however, is inappropriate and inconsistent with the spirit of the policy.
I am inclined to speculate that AG Holder felt a need to issue this short memo in part because of reports that some US Attorneys may have had a "practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea."
Tuesday, September 23, 2014
Highlights from AG Holder's big speech today at the Brennan Center for Justice
As noted in this prior post and as detailed in this official Justice Department press release, Attorney General Eric Holder gave a big speech today in New York at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to Reduce Mass Incarceration." Here are some highlights from a speech that all sentencing fans will want to read in full:
As you know, we gather this afternoon just over a year after the launch of the Justice Department’s Smart on Crime initiative — a series of important changes and commonsense reforms I set in motion last August. Already, these changes are fundamentally shifting our response to certain crime challenges —particularly low-level, nonviolent drug offenses. And this initiative is predicated on the notion that our work as prosecutors must be informed, and our criminal justice system continually improved, by the most effective and efficient strategies available.
After all — as I’ve often said — the United States will never be able to prosecute or incarcerate its way to becoming a safer nation. We must never, and we will never, stop being vigilant against crime — and the conditions and choices that breed it. But, for far too long — under well-intentioned policies designed to be “tough” on criminals — our system has perpetuated a destructive cycle of poverty, criminality, and incarceration that has trapped countless people and weakened entire communities — particularly communities of color....
Perhaps most troubling is the fact that this astonishing rise in incarceration — and the escalating costs it has imposed on our country, in terms both economic and human — have not measurably benefited our society. We can all be proud of the progress that’s been made at reducing the crime rate over the past two decades — thanks to the tireless work of prosecutors and the bravery of law enforcement officials across America. But statistics have shown — and all of us have seen — that high incarceration rates and longer-than-necessary prison terms have not played a significant role in materially improving public safety, reducing crime, or strengthening communities.
In fact, the opposite is often true. Two weeks ago, the Washington Post reported that new analysis of crime data and incarceration rates — performed by the Pew Charitable Trusts, and covering the period of 1994 to 2012 — shows that states with the most significant drops in crime also saw reductions in their prison populations. States that took drastic steps to reduce their prison populations — in many cases by percentages well into the double digits — saw crime go down as well. And the one state — West Virginia — with the greatest increase in its incarceration rate actually experienced an uptick in crime.
As the Post makes clear: “To the extent that there is any trend here, it’s actually that states incarcerating people have seen smaller decreases in crime.” And this has been borne out at the national level, as well. Since President Obama took office, both overall crime and overall incarceration have decreased by approximately 10 percent. This is the first time these two critical markers have declined together in more than 40 years. And although we have a great deal of work to do — and although, last year, some states continued to record growth in their prison populations — this is a signal achievement....
Over the past year, the federal prison population declined by roughly 4,800 inmates — the first decrease we’ve seen in many decades. Even more promising are new internal projections from the Bureau of Prisons. In a dramatic reversal of prior reports — which showed that the prison population would continue to grow, becoming more and more costly, overcrowded, and unsafe — taking into account our new policies and trends, our new projections anticipate that the number of federal inmates will fall by just over 2,000 in the next 12 months — and by almost 10,000 in the year after.
This is nothing less than historic. To put these numbers in perspective, 10,000 inmates is the rough equivalent of the combined populations of six federal prisons, each filled to capacity. Now, these projected decreases won’t result in any prison closures, because our system is operating at about 30 percent above capacity. But my hope is that we’re witnessing the start of a trend that will only accelerate as our Smart on Crime changes take full effect.
Clearly, criminal justice reform is an idea whose time has come. And thanks to a robust and growing national consensus — a consensus driven not by political ideology, but by the promising work that’s underway, and the efforts of leaders like Senators Patrick Leahy, Dick Durbin, Mike Lee, and Rand Paul — we are bringing about a paradigm shift, and witnessing a historic sea change, in the way our nation approaches these issues. ...
The Smart on Crime initiative is in many ways the ultimate expression of my trust in the abilities — and the judgment — of our attorneys on the front lines. And although some have suggested that recent changes in charging and sentencing policies might somehow undermine their ability to induce cooperation from defendants in certain cases, today, I want to make it abundantly clear that nothing could be further from the truth.
As I know from experience — and as all veteran prosecutors and defense attorneys surely recognize — defendant cooperation depends on the certainty of swift and fair punishment, not on the length of a mandatory minimum sentence. Like anyone old enough to remember the era before sentencing guidelines existed and mandatory minimums took full effect, I can testify to the fact that federal guidelines attempted to systematize the kinds of negotiations that were naturally taking place anyway. As our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, often reminds his colleagues, even without the threat of mandatory minimums, it remains in the interests of all attorneys to serve as sound advocates for their clients — and for defendants to cooperate with the government in exchange for reduced sentences.
Far from impeding the work of our prosecutors, the sentencing reforms I’ve mandated have strengthened their discretion. The contention that cooperation is somehow dependent on mandatory minimums is tied to a past at tension with the empirical present, and is plainly inconsistent with history, and with now known facts. After all, as the Heritage Foundation observed earlier this year: “[t]he rate of cooperation in cases involving mandatory minimums is comparable to the average rate in all federal cases.”
Of course, as we refine our approach and reject the ineffective practice of calling for stringent sentences against those convicted of low-level, nonviolent crimes, we also need to refine the metrics we use to measure success; to evaluate the steps we’re taking; and to assess the effectiveness of new criminal justice priorities. In the Smart on Crime era, it’s no longer adequate — or appropriate — to rely on outdated models that prize only enforcement, as quantified by numbers of prosecutions, convictions, and lengthy sentences, rather than taking a holistic view. As the Brennan Center and many others have recognized — and as your landmark report on Federal Prosecution for the 21st Century makes crystal clear — it’s time to shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success....
Your concrete recommendations — that federal prosecutors should prioritize reducing violence, incarceration, and recidivism — are consistent with the aims of the Smart on Crime initiative. The new metrics you propose — such as evaluating progress by assessing changes in local violent crime rates, numbers of federal prisoners initially found in particular districts, and changes in the three-year recidivism rate — lay out a promising roadmap for us to consider. And my pledge to you today is that my colleagues and I will not merely carefully study this critical report — we will use it as a basis for discussion, and a vital resource to draw upon, as we engage in a far-reaching process to develop and codify new success measures — with the aim of cementing recent shifts in law and policy.
One of the key points underscored by your report — and emphasized under the Smart on Crime approach — is the need for the Justice Department to direct funding to help move the criminal justice field toward a fuller embrace of science and data. This is something that we — and especially our Office of Justice Programs and Bureau of Justice Assistance — have taken very seriously throughout the Obama Administration. And nowhere are these ideals more fully embodied — or more promisingly realized — than in our Justice Reinvestment Act and Second Chance Act programs....
Thanks to bipartisan support from Congress, funding for the Justice Reinvestment Initiative has more than quadrupled this year. That, on its own, is an extraordinary indication of the power and importance of this work. And this additional funding is allowing us to launch a new challenge grant program — designed to incentivize states to take the next major step in their reform efforts.
Today, I am pleased to announce that five states — Delaware, Georgia, Louisiana, Ohio, and Oregon — will be receiving these grants, which can be used to expand pre-trial reforms, to scale up swift and certain sanctions, to institute evidence-based parole practices, or a number of other options. I am also pleased to announce that five states have been selected to receive new funding under the Second Chance Act to help reduce recidivism. Georgia, Illinois, Iowa, Minnesota, and Vermont will each be awarded $1 million to meet their recidivism reduction goals. And each will be eligible for an additional $2 million over the next two years if they do so.
September 23, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, September 15, 2014
Effective commentary on Sixth Circuit panel upholding 15-year ACCA sentence for possession of shotgun shells
I am pleased to see that by LawProf Richard M. Re now has posted on his (wonderfully titled) Re's Judicata blog some new critical thoughts about the Sixth Circuit panel ruling late last week in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here). Young rejected an Eighth Amendment claim by the defendant by ruling that a mandatory 15-year federal imprisonment term was not grossly disproportionate for a felon's possession of shotgun shells. I first blogged about the Young ruling here, and I have not (yet) commented further because I was involved in the briefing and argument to the Sixth Circuit as an amicus representing NACDL.
Helpfully, Prof Re's extended post on Young, which is titled "A 'Shell' Game in the Sixth Circuit?", highlights some of my own deep concerns about the ruling. I recommend everyone check out the full post, which gets started this way:
In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note. As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.” The case might go to the Supreme Court on the Eighth Amendment question it raises.
Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency. First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about. A robust clemency tradition would bring those factors to light. Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it — and, in doing so, the court relied on allegations and innuendo instead of judicial findings.
Prior related posts on Young case:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
- Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
September 15, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack